[Federal Register Volume 64, Number 156 (Friday, August 13, 1999)]
[Rules and Regulations]
[Pages 44103-44109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21060]



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  Federal Register / Vol. 64, No. 156 / Friday, August 13, 1999 / Rules 
and Regulations  

[[Page 44103]]


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FEDERAL HOUSING FINANCE BOARD

12 CFR Part 905

[No. 99-42]
RIN 3069-AA81


Availability of Unpublished Information

AGENCY: Federal Housing Finance Board.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Federal Housing Finance Board (Finance Board) is adding a 
new part to its regulations governing the availability of unpublished 
information. The rule describes the procedures a person or entity must 
follow when requesting unpublished Finance Board information either by 
document or by testimony of current or former Finance Board employees 
or agents and the practices and procedures the Finance Board will use 
in responding to such requests.

DATES: The interim final rule will become effective on August 13, 1999. 
The Finance Board will accept comments on the interim final rule in 
writing on or before Ocotber 12, 1999.

ADDRESSES: Send comments to Elaine L. Baker, Secretary to the Board, by 
electronic mail at [email protected], or by regular mail at the Federal 
Housing Finance Board, 1777 F Street, N.W., Washington, D.C. 20006. 
Comments will be available for public inspection at this address.

FOR FURTHER INFORMATION CONTACT: Janice A. Kaye, Attorney-Advisor, 
Office of General Counsel, by telephone at 202/408-2505, by electronic 
mail at [email protected], or by regular mail at the Federal Housing 
Finance Board, 1777 F Street, N.W., Washington, D.C. 20006.

SUPPLEMENTARY INFORMATION:

I. Background

    The Finance Board, an independent agency in the Executive branch of 
the United States government, see 12 U.S.C. 1422a(a)(2), recently has 
received requests from attorneys representing private parties for 
access to information or documents acquired by Finance Board employees 
in their official capacity or in the course of performing official 
duties. The attorneys plan to use the information in connection with 
litigation in which neither the Finance Board nor the United States is 
a party. This type of information, referred to herein as ``unpublished 
information,'' generally is not subject to release under the Freedom of 
Information Act (FOIA). See 5 U.S.C. 552. Because the Finance Board 
previously has not received requests for unpublished information, it 
has not established procedures for the efficient processing of such 
requests. In order to control the process and the use and disclosure of 
its unpublished information, the Finance Board has determined to adopt 
procedures that must be followed by persons or entities requesting 
unpublished Finance Board information, and practices and procedures the 
Finance Board will use in responding to such requests.
    The so-called federal ``housekeeping statute'' authorizes an agency 
to issue regulations governing the conduct of agency employees and the 
custody, use, and preservation of agency records, papers, and property. 
See 5 U.S.C. 301. Pursuant to this authority, many federal agencies 
have issued regulations governing the circumstances and manner in which 
a current or former agency employee or agent, regulated entity, or 
other person or entity in possession of unpublished agency information 
must respond to demands for testimony or the production of documents. 
See, e.g., 12 CFR 1710.31-40 (Office of Federal Housing Enterprise 
Oversight); 12 CFR 510.5 (Office of Thrift Supervision). In addition, 
section 2B of the Federal Home Loan Bank Act (Bank Act) empowers the 
Finance Board to supervise the Federal Home Loan Banks (FHLBanks) and 
promulgate and enforce such regulations as are necessary to carry out 
the provisions of the Bank Act. See 12 U.S.C. 1422b(a)(1). Therefore, 
pursuant to the authority provided by section 2B of the Bank Act and 
the housekeeping statute, the Finance Board is adding a new part 905 to 
its regulations governing the availability of unpublished Finance Board 
information by document or by testimony of current or former Finance 
Board employees or agents. This new rule will ensure that requests for 
unpublished information include everything the Finance Board needs to 
make an objective decision regarding use and disclosure of the 
requested information. The rule also will enable the Finance Board to 
fairly and effectively consider and respond to such requests.

II. Analysis of the Interim Final Rule

    The interim final rule adds a new part 905 to the Finance Board's 
regulations to be codified in Title 12 of the Code of Federal 
Regulations. A more detailed description of the provisions of part 905 
follows.

A. Purposes and Scope

    Section 905.2 sets out the purposes and scope of part 905, which 
governs the availability of unpublished Finance Board information 
either by document or by testimony of current or former Finance Board 
employees or agents. Under part 905, the term ``unpublished 
information'' means: (1) information and documents created or obtained 
by the Finance Board in connection with the performance of official 
duties, whether the information or documents are in the possession of 
the Finance Board, a current or former Finance Board employee or agent, 
a FHLBank, the Office of Finance, or the Financing Corporation (i.e., a 
supervised entity), a FHLBank member, or some other person, entity, or 
government agency; and (2) information and documents created or 
obtained by, or information in the memory of, a current or former 
Finance Board employee or agent, which was acquired in the person's 
official capacity or in the course of performing official duties. 
Unpublished information does not include information or records the 
Finance Board must disclose under the FOIA, Privacy Act, or the Finance 
Board's implementing regulations. See 5 U.S.C. 552 and 552a; 12 CFR 
parts 904 and 909.). It also does not include information or documents 
that were previously published or disclosed or are customarily 
furnished to the public in the course of the performance of official 
duties such as the annual report the

[[Page 44104]]

Finance Board submits to Congress pursuant to section 2B(d) of the Bank 
Act (12 U.S.C. 1422b(d)), press releases, Finance Board forms, and 
materials published in the Federal Register. The Finance Board expects 
that unpublished information will include confidential information that 
is privileged.
    The rule covers former as well as current employees to allow the 
Finance Board to control the release of unpublished information a 
former employee possesses or information a former employee recalls 
regarding matters that remain confidential. It is not intended to 
restrict a former employee but rather to permit the Finance Board an 
opportunity to consult with the former employee and parties wishing to 
use the employee's testimony in advance of testimony being given in 
order to protect the confidentiality of unpublished information by 
prohibiting or limiting testimony as appropriate. Since the rule 
prohibits the release only of unpublished information the former 
employee acquired in an official capacity or in the course of 
performing official duties, it does not bar a former employee from 
appearing on general matters or otherwise employing his or her 
knowledge or expertise as, for example, an expert witness.
    The purposes of the rule are to provide an orderly mechanism for 
expeditiously processing requests for unpublished information. The rule 
will conserve the time of employees for official duties and ensure that 
the Finance Board can deploy its resources in the most efficient manner 
while preserving the Finance Board's need to maintain the 
confidentiality of certain information. The rule also is intended to 
allow the Finance Board to remain impartial among private litigants. 
The rule does not, and may not be relied upon to create any substantive 
or procedural right or benefit enforceable against the Finance Board.
    The Finance Board expects the majority of requests for unpublished 
information to arise in the course of a legal proceeding, such as an 
administrative, civil, or criminal proceeding, including a grand jury 
or discovery proceeding, in which neither the Finance Board nor the 
United States is a party. However, because requests also arise in a 
non-litigation context, the scope of the interim final rule is broad--
it applies to any request for or disclosure of unpublished information 
by document or testimony. The rule is not intended to and will not 
apply to requests for unpublished information in connection with a 
legal proceeding in which the Finance Board or the United States is a 
party or requests for information or records the Finance Board must 
disclose under the FOIA or the Privacy Act. See 5 U.S.C. 552 and 552a. 
The interim final rule does not affect the rights and procedures 
governing access to records under the FOIA or the Privacy Act, which 
the Finance Board will continue to process under part 904 or 909 of the 
Finance Board's regulations, respectively. See 12 CFR parts 904 and 
909. However, the interim final rule may permit the Finance Board to 
disclose documents that are exempt from disclosure under the FOIA.

B. Prohibition on Unauthorized Use and Disclosure of Unpublished 
Information

    The Finance Board considers all unpublished information to be 
confidential. Thus, use or disclosure of unpublished information 
without the express authorization of the Finance Board is prohibited. 
Section 905.3 of the interim final rule makes clear that unpublished 
information in the possession or control of any person, supervised 
entity, FHLBank member, government agency, or other entity remains the 
property of the Finance Board. No person or entity may use or disclose 
unpublished information, even information lawfully in their possession 
or control, without Finance Board authorization. A person or entity 
that uses or discloses unpublished information without authorization 
may be subject to criminal penalties. See 18 U.S.C. 641. In addition, 
current Finance Board, FHLBank, or Office of Finance employees may be 
subject to administrative or disciplinary proceedings. See, e.g., 12 
U.S.C. 1422b(a)(2) and (b)(1).

C. Requests for Unpublished Information

    Section 905.4 sets forth the procedure for making requests for 
unpublished information. The Finance Board only will consider complete 
written requests that include a detailed description of the basis for 
the request. Every request must demonstrate that the requested 
information is highly relevant to the purpose for which it is sought 
and is not available from any other source. The requester also must 
show that the need for the information clearly outweighs the need to 
maintain its confidentiality and the burden on the Finance Board to 
produce it. If a requester seeks a response in less than 60 days, the 
request must explain why it was not submitted earlier and why it should 
be expedited. At its discretion, the Finance Board may seek additional 
information from the requester, parties to the matter at issue, or 
other sources of information.
    In addition to the basic requirements discussed above, a request 
for the production of documents must adequately describe the record or 
records sought by type and date. A request for the testimony of current 
or former Finance Board employees or agents also must set forth the 
intended use of the testimony, a summary of the scope of the testimony 
requested, and a showing that no document or the testimony of other 
non-Finance Board persons, including retained experts, could be 
provided and used in lieu of the testimony. In order to limit the time 
an employee or agent spends providing authorized testimony, the rule 
requires a requester to notify all other parties to the matter at issue 
of the request for testimony and permits another party to join in the 
request or submit its own request if the scope of the testimony sought 
is different.
    If a request is made in connection with a legal proceeding, the 
requester must include detailed information about the legal proceeding. 
The Finance Board generally will not consider a request arising out of 
a legal proceeding unless the legal proceeding is already filed.

D. Consideration of Requests

    Section 905.5(a) makes clear that a decision concerning the 
availability of unpublished information is at the sole discretion of 
the Finance Board. Absent exigent or unusual circumstances, the Finance 
Board will determine whether to grant a request for unpublished 
information in whole or in part within 60 days of receipt. The factors 
the Finance Board may consider in making a determination include, but 
are not limited to, the following:
     Whether and how the requested information is relevant to 
the purpose for which it is sought.
     Whether information reasonably suited to the requester's 
needs other than the requested information is available from another 
source.
     Whether the requested information is privileged.
     If the request is in connection with a legal proceeding, 
whether the proceeding has been filed.
     The burden placed on the Finance Board to respond to the 
request.
     Whether production of the information would be contrary to 
the public interest.
     Whether the need for the information clearly outweighs the 
need to maintain the confidentiality of the information.
    The Finance Board may respond to a request by authorizing a person 
or entity in lawful possession or control of unpublished information to 
disclose the

[[Page 44105]]

information to a requester pursuant to an appropriate confidentiality 
order. This is intended to allow the person or entity in possession or 
control to assert its own claim of privilege or to argue that the 
information is not relevant or otherwise protected from disclosure.
    The Finance Board generally will notify a FHLBank, FHLBank member, 
the Office of Finance, or Financing Corporation that it is the subject 
of a request. The Finance Board will not provide notice if it 
determines, in its sole discretion, that the notice would advantage or 
prejudice any of the parties to the matter at issue.

E. Duty of Persons and Entities With Access to Unpublished Information

    Under section 905.6(a), a person or entity must immediately notify 
the Finance Board's Office of General Counsel of any request or legal 
process seeking the use or disclosure of unpublished information. 
Unless the Finance Board has authorized in writing disclosure of the 
requested information, the person or entity must decline to disclose 
the information. Section 905.6(b) requires a current or former Finance 
Board employee or agent or a supervised entity that must respond to a 
subpoena, order, or other legal process, to decline to disclose the 
requested information, citing this part as authority. The rule permits 
a non-Finance Board person or entity to disclose unpublished 
information only after the requester has sought the information from 
the Finance Board under this part and a Federal court in a judicial 
proceeding in which the Finance Board or the Department of Justice has 
had the opportunity to appear, has ordered disclosure.
    If disclosure is not authorized, the Finance Board will provide a 
copy of part 905 to the requester and advise the requester or the court 
or other body that issued the legal process, that the Finance Board has 
prohibited disclosure. The Finance Board or the Department of Justice 
may intervene in the matter at issue, attempt to have the compulsory 
process withdrawn, or register other appropriate objections.

F. Available Information

    Sections 905.7 and 905.8 prescribe limits on the scope of 
permissible document disclosure or testimony and the manner in which 
documents or testimony authorized for disclosure will be made 
available. The scope of permissible document disclosure or testimony is 
limited to that set forth in the written authorization granted by the 
Finance Board. The Finance Board may act to ensure that the scope of 
information provided is consistent with the written authorization, for 
instance, by reviewing copies of the documents provided to the 
requester or a transcript of deposition testimony. Upon request, the 
Finance Board will provide certified or authenticated copies of 
documents authorized to be disclosed. A party that wants to question a 
witness beyond the authorized scope must submit a request for expanded 
authorization to the Finance Board. The Finance Board will attempt to 
render decisions on such requests in an expedited manner. The Finance 
Board generally will not authorize a current employee or agent to 
provide expert or opinion testimony for a private party.
    When the Finance Board has authorized testimony, it generally will 
make the witness available only through written interrogatories or 
deposition. Absent unusual circumstances, authorized deposition 
testimony will take place at the Finance Board's offices at a time 
convenient for the employee. All costs associated with the appearance 
must be borne by the requester, including provision of a copy of the 
transcript of the deposition at the request of the Office of General 
Counsel. The Finance Board will not authorize trial or hearing 
testimony unless the requester shows that properly developed deposition 
testimony could not be used or would not be adequate at the trial or 
hearing. If the authorized testimony is in connection with a legal 
proceeding, the requester must cause a subpoena to be served on the 
employee in accordance with applicable rules of procedure, with a copy 
by registered or certified mail to the Office of General Counsel.
    The Finance Board's authorization to provide unpublished 
information may include restrictions on the use and disclosure of the 
information. With regard to testimony, the Finance Board may condition 
its authorization on an agreement of the parties to appropriate 
limitations, such as an agreement to keep the transcript of a 
deposition under seal or to make the transcript available only to the 
parties, the court or other body, or the jury. The Finance Board may 
condition a decision to disclose unpublished information by document on 
entry of a protective order satisfactory to the Finance Board, by the 
court or other body presiding in a legal proceeding or, in non-
adversarial matters, on a written agreement of confidentiality that 
limits access of third parties to the unpublished information. In a 
legal proceeding in which a protective order already has been entered, 
the Finance Board may condition a decision to disclose unpublished 
information upon the inclusion of additional or amended provisions in 
the protective order. Upon request or on its own initiative, the 
Finance Board may authorize use of a deposition transcript or the 
disclosed documents in another legal proceeding or non-adversarial 
matter.
    If the documents or testimony are disclosed in connection with a 
legal proceeding, the requester is responsible for promptly notifying 
all other parties to the legal proceeding of the disclosure, and, after 
entry of a protective order, providing copies of the documents or 
testimony to the other parties that are signatories and subject to the 
protective order. At the conclusion of the legal proceeding, the 
requester must retrieve the documents or testimony from the court or 
other body's file as soon as they are no longer required and certify to 
the Finance Board that every party covered by the protective order has 
destroyed the unpublished information.

G. Fees

    Section 905.9 of the interim final rule concerns the assessment and 
collection of fees. The Finance Board generally will assess a fee for 
the actual costs of searching, copying, authenticating, or certifying 
unpublished information it authorizes for use or disclosure. The 
Finance Board will assess fees in the same manner it assesses fees for 
providing FOIA services under 12 CFR 904.9. The Office of Resource 
Management is responsible for billing and collecting the fees. The 
Finance Board generally will bill the requester upon completion of the 
production but, in certain instances, may require a requester to remit 
payment prior to providing the requested information. A requester 
promptly must pay the assessed fees by delivering a check or money 
order made payable to the ``Federal Housing Finance Board'' to the 
Office of Resource Management, located at the Federal Housing Finance 
Board's offices at 1777 F Street, N.W., Washington, D.C. 20006.
    A requester also is responsible for paying witness fees and mileage 
computed in accordance with 28 U.S.C. 1821 upon completion of a 
testimonial appearance. If the witness is a current Finance Board 
employee or agent or a former employee or agent still in the employ of 
the United States, the requester promptly must remit the witness fees 
to the Office of Resource Management. If the witness is a former 
employee or agent that is not currently employed by the federal 
government, the requester promptly must remit the witness fees directly 
to the witness.

[[Page 44106]]

III. Notice and Public Participation

    The Finance Board is promulgating this procedural rule as an 
interim final rule in order to fairly and effectively handle pending 
and anticipated requests for unpublished information. However, because 
this type of rulemaking generally requires notice and receipt of public 
comment, the Finance Board will accept written comments on the interim 
final rule on or before October 12, 1999.

IV. Effective Date

    For the reasons stated in part III above, the Finance Board for 
good cause finds that the interim final rule should become effective on 
August 13, 1999. See 5 U.S.C. 553(d)(3).

V. Regulatory Flexibility Act

    The Finance Board is adopting part 905 in the form of an interim 
final rule and not as a proposed rule. Therefore, the provisions of the 
Regulatory Flexibility Act do not apply. See 5 U.S.C. 601(2) and 
603(a).

VI. Paperwork Reduction Act

    The interim final rule does not contain any collections of 
information pursuant to the Paperwork Reduction Act of 1995. See 44 
U.S.C. 3501 et seq. Consequently, the Finance Board has not submitted 
any information to the Office of Management and Budget for review.

List of Subjects in 12 CFR Part 905

    Confidential business information, Federal home loan banks, Freedom 
of information, Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the Finance Board hereby 
adds 12 CFR part 905 to read as follows:

PART 905--AVAILABILITY OF UNPUBLISHED INFORMATION

Sec.
905.1  Definitions.
905.2  Purposes and scope.
905.3  Prohibition on unauthorized use and disclosure of unpublished 
information.
905.4  Requests for unpublished information by document or 
testimony.
905.5  Consideration of requests.
905.6  Persons and entities with access to unpublished information.
905.7  Availability of unpublished information by testimony.
905.8  Availability of unpublished information by document.
905.9  Fees.

    Authority: 5 U.S.C. 301; 12 U.S.C. 1422b(a)(1).

Sec. 905.1  Definitions.

    For purposes of this part:
    (a) Finance Board means the agency established as the Federal 
Housing Finance Board.
    (b) Legal proceeding means any administrative, civil, or criminal 
proceeding, including a grand jury or discovery proceeding, in which 
neither the Finance Board nor the United States is a party.
    (c) Unpublished information means information and documents created 
or obtained by the Finance Board in connection with the performance of 
official duties, whether the information or documents are in the 
possession of the Finance Board, a current or former Finance Board 
employee or agent, a supervised entity, a Federal Home Loan Bank 
member, government agency, or some other person or entity; and 
information and documents created or obtained by, or in the memory of, 
a current or former Finance Board employee or agent, that was acquired 
in the person's official capacity or in the course of performing 
official duties. It does not include information or documents the 
Finance Board must disclose under the Freedom of Information Act (5 
U.S.C. 552), Privacy Act (5 U.S.C. 552a), or the Finance Board's 
implementing regulations (12 CFR parts 904 and 909, respectively). It 
also does not include information or documents that were previously 
published or disclosed or are customarily furnished to the public in 
the course of the performance of official duties such as the annual 
report the Finance Board submits to Congress pursuant to section 2B(d) 
of the Federal Home Loan Bank Act (12 U.S.C. 1422b(d)), press releases, 
Finance Board forms, and materials published in the Federal Register.
    (d) Supervised entity means a Federal Home Loan Bank, the Office of 
Finance, and the Financing Corporation.


Sec. 905.2  Purpose and scope.

    (a) Purpose. The purposes of this part are to:
    (1) Maintain the confidentiality and control the dissemination of 
unpublished information;
    (2) Conserve the time of employees for official duties and ensure 
that Finance Board resources are used in the most efficient manner;
    (3) Maintain the Finance Board's impartiality among private 
litigants; and
    (4) Establish an orderly mechanism for the Finance Board to process 
expeditiously and respond appropriately to requests for unpublished 
information.
    (b) Scope. (1) This part applies to a request for and use and 
disclosure of unpublished information, including a request for 
unpublished information by document or testimony arising out of a legal 
proceeding in which neither the Finance Board nor the United States is 
a party. It does not apply to a request for unpublished information in 
a legal proceeding in which the Finance Board or the United States is a 
party or a request for information or records the Finance Board must 
disclose under the Freedom of Information Act, Privacy Act, or the 
Finance Board's implementing regulations.
    (2) This part does not, and may not be relied upon to create any 
substantive or procedural right or benefit enforceable against the 
Finance Board.


Sec. 905.3  Prohibition on unauthorized use and disclosure of 
unpublished information.

    (a) In general. Possession or control by any person, supervised 
entity, Federal Home Loan Bank member, government agency, or other 
entity of unpublished information does not constitute a waiver by the 
Finance Board of any privilege or its right to control, supervise, or 
impose limitations on, the subsequent use and disclosure of the 
information.
    (b) Current and former employees and agents. Except as authorized 
by this part or otherwise by the Finance Board, no current or former 
Finance Board employee or agent may disclose or permit the disclosure 
in any manner of any unpublished information to anyone other than a 
Finance Board employee or agent for use in the performance of official 
duties.
    (c) Other persons or entities possessing unpublished information. 
(1) Except as authorized in writing by the Finance Board, no person, 
supervised entity, Federal Home Loan Bank member, government agency, or 
other entity in possession or control of unpublished information may 
disclose or permit the use or disclosure of such information in any 
manner or for any purpose.
    (2) All unpublished information made available under this part 
remains the property of the Finance Board and may not be used or 
disclosed for any purpose other than that authorized under this part 
without the prior written permission of the Finance Board.
    (3) Reports of examination, supervisory correspondence, and other 
unpublished information lawfully in the possession of a supervised 
entity, Federal Home Loan Bank member, or government agency remains the 
property of the Finance Board and may not be used or disclosed for any 
purpose other than that authorized under this part without the prior 
written permission of the Finance Board.

[[Page 44107]]

    (4) Any person or entity that discloses or uses unpublished 
information except as expressly authorized under this part may be 
subject to the penalties provided in 18 U.S.C. 641 and other applicable 
laws. A current Finance Board, Federal Home Loan Bank, or Office of 
Finance employee also may be subject to administrative or disciplinary 
proceedings.
    (d) Exception for supervised entities and Federal Home Loan Bank 
members. When necessary or appropriate for business purposes, a 
supervised entity, Federal Home Loan Bank member, or any director, 
officer, employee, or agent thereof, may disclose unpublished 
information, including information contained in, or related to, 
supervisory correspondence or reports of examination, to a person or 
entity officially connected with the supervised entity or Federal Home 
Loan Bank member as officer, director, employee, attorney, agent, 
auditor, or independent auditor. A supervised entity, Federal Home Loan 
Bank member, or a director, officer, employee, or agent thereof, also 
may disclose unpublished information to a consultant under this 
paragraph if the consultant is under a written contract to provide 
services to the supervised entity or Federal Home Loan Bank member and 
the consultant has agreed in writing:
    (1) To abide by the prohibition on the disclosure of unpublished 
information contained in this section; and
    (2) That it will not to use the unpublished information for any 
purposes other than those stated in its contract to provide services to 
the supervised entity or Federal Home Loan Bank member.
    (e) Government agencies. The Finance Board may make reports of 
examination, supervisory correspondence, and other unpublished 
information available to another federal agency or a state agency for 
use where necessary in the performance of the agency's official duties. 
As used in this paragraph, the term agency does not include a grand 
jury.


Sec. 905.4  Requests for unpublished information by document or 
testimony.

    (a) Form of requests. A request for unpublished information must be 
submitted to the Finance Board in writing and include a detailed 
description of the basis for the request. At a minimum, the request 
must demonstrate that:
    (1) The requested information is highly relevant to the purpose for 
which it is sought;
    (2) The requested information is not available from any other 
source;
    (3) The need for the information clearly outweighs the need to 
maintain its confidentiality; and
    (4) The need for the information clearly outweighs the burden on 
the Finance Board to produce it.
    (b) Requests for documents. If the request is for unpublished 
information by document, the request must include the elements in 
paragraph (a) of this section and also must adequately describe the 
record or records sought by type and date.
    (c) Requests for testimony. (1) If the request is for unpublished 
information by testimony, the request must include the elements in 
paragraph (a) of this section and also must set forth the intended use 
of the testimony, a summary of the scope of the testimony requested, 
and a showing that no document or the testimony of other non-Finance 
Board persons, including retained experts, could be provided and used 
in lieu of the testimony.
    (2) Upon submitting a request to the Finance Board for unpublished 
information by testimony, the requester must notify all other parties 
to the matter at issue of the request.
    (3) After receipt of a request for unpublished information by 
testimony but before the requested testimony occurs, a party to the 
matter at issue who did not join in the request and who wishes to 
question the witness beyond the scope of the testimony sought by the 
request, must timely submit its own request for unpublished information 
pursuant to this part.
    (d) Requests in connection with legal proceedings. If the request 
for unpublished information arises out of a legal proceeding, the 
Finance Board generally will require that the legal proceeding already 
be filed before it will consider the request. In addition to the 
elements in paragraph (a) of this section, requests in connection with 
legal proceedings must include the caption and docket number of the 
case; the forum; the name, address, phone number, and electronic mail 
address, if available, of counsel to all other parties to the legal 
proceeding; the requester's interest in the case; a summary of the 
issues in litigation; and the reasons for the request, including the 
relevance of the unpublished information and how the requested 
information will contribute substantially to the resolution of one or 
more specifically identified issues in the legal proceeding.
    (e) Expedited requests. If a requester seeks a response in less 
than 60 days, the request must explain why the request was not 
submitted earlier and why the Finance Board should expedite the 
request.
    (f) Where to submit requests. Send requests for unpublished 
information to the Office of General Counsel, Federal Housing Finance 
Board, 1777 F Street, N.W., Washington, D.C. 20006.
    (g) Additional information. (1) From the requester. The Office of 
General Counsel may consult with the requester to refine and limit the 
scope of the request to make compliance less burdensome or to obtain 
information necessary to make an informed determination on the request. 
A requester's failure to cooperate in good faith with the Office of 
General Counsel may serve as the basis for a determination not to grant 
the request.
    (2) From others. The Office of General Counsel may inquire into the 
facts and circumstances underlying a request for unpublished 
information and rely on sources of information other than the 
requester, including other parties to the matter at issue.


Sec. 905.5  Consideration of requests.

    (a) Discretion. Each decision concerning the availability of 
unpublished information is at the sole discretion of the Finance Board 
based on a weighing of all appropriate factors. The decision is a final 
agency action that exhausts administrative remedies for disclosure of 
the information.
    (b) Time to respond. The Finance Board generally will respond in 
writing to a request for unpublished information within 60 days of 
receipt absent exigent or unusual circumstances and dependent upon the 
scope and completeness of the request.
    (c) Factors the Finance Board may consider. The factors the Finance 
Board may consider in making a determination regarding the availability 
of unpublished information include:
    (1) Whether and how the requested information is relevant to the 
purpose for which it is sought;
    (2) Whether information reasonably suited to the requester's needs 
other than the requested information is available from another source;
    (3) Whether the requested information is privileged;
    (4) If the request is in connection with a legal proceeding, 
whether the proceeding has been filed;
    (5) The burden placed on the Finance Board to respond to the 
request;
    (6) Whether production of the information would be contrary to the 
public interest; and
    (7) Whether the need for the information clearly outweighs the need 
to maintain the confidentiality of the information.
    (d) Disclosure of unpublished information by others. When a person 
or

[[Page 44108]]

entity other than the Finance Board has a claim of privilege regarding 
unpublished information and the information is in the possession or 
control of that person or entity, the Finance Board, at its sole 
discretion, may respond to a request for the information by authorizing 
the person or entity to disclose the information to the requester 
pursuant to an appropriate confidentiality order. Finance Board 
authorization to disclose information under this paragraph does not 
preclude the person or entity in possession of the unpublished 
information from asserting its own privilege, arguing that the 
information is not relevant, or asserting any other argument to protect 
the information from disclosure.
    (e) Notice to supervised entities and Federal Home Loan Bank 
members. The Finance Board generally will notify a supervised entity or 
Federal Home Loan Bank member that it is the subject of a request, 
unless the Finance Board, in its sole discretion, determines that to do 
so would advantage or prejudice any of the parties to the matter at 
issue.


Sec. 905.6  Persons and entities with access to unpublished 
information.

    (a) Notice to Finance Board. Any person, including a current or 
former Finance Board employee or agent, or any entity, including a 
supervised entity, Federal Home Loan Bank member, or government agency 
that receives a request for, or is served with a subpoena, order, or 
other legal process to disclose unpublished information by document or 
testimony, must immediately notify the Office of General Counsel.
    (b) Response of person or entity served with request. Unless the 
Finance Board has authorized in writing disclosure of the requested 
information:
    (1) A current or former Finance Board employee or agent or a 
supervised entity that must respond to a subpoena, order, or other 
legal process, must decline to disclose the requested information, 
citing this part as authority.
    (2) A non-Finance Board person or entity may not disclose 
unpublished information unless:
    (i) The requester has sought the information from the Finance Board 
under this part; and (ii) After the Finance Board or the Department of 
Justice has had the opportunity to appear and oppose disclosure, a 
Federal court has ordered the person or entity to disclose the 
information.
    (c) Finance Board response. If the Finance Board does not authorize 
in writing disclosure of the requested information, the Finance Board 
will provide a copy of this part to the person or entity at whose 
instance the process was issued and advise that person or entity or the 
court or other body that the Finance Board has prohibited disclosure of 
the information under this part. The Finance Board or the Department of 
Justice may intervene in the matter at issue, attempt to have the 
compulsory process withdrawn, or register other appropriate objections.


Sec. 905.7  Availability of unpublished information by testimony.

    (a) Scope. (1) The scope of permissible testimony is limited to 
that set forth in the written authorization granted by the Finance 
Board. The Finance Board may act to ensure that the scope of testimony 
provided is consistent with the written authorization.
    (2) A party to the matter at issue that did not join in a request 
for unpublished information who wishes to question a witness beyond the 
authorized scope must request expanded authorization under this part. 
The Finance Board will attempt to render decisions on such requests in 
an expedited manner.
    (3) The Finance Board generally will not authorize a current 
employee or agent to provide expert or opinion testimony for a private 
party.
    (b) Manner in which testimony is given. (1) The Finance Board 
ordinarily will make the authorized testimony of a former or current 
employee or agent available only through written interrogatories or 
deposition. The Finance Board will not authorize testimony at a trial 
or hearing unless the requester shows that properly developed 
deposition testimony could not be used or would be inadequate at the 
trial or hearing.
    (2) If the Finance Board has authorized testimony in connection 
with a legal proceeding, the requester must cause a subpoena to be 
served on the employee in accordance with applicable rules of 
procedure, with a copy by registered or certified mail to the Office of 
General Counsel.
    (3) If the authorized testimony is through deposition, the 
deposition ordinarily will take place at the Finance Board's offices at 
a time that will avoid substantial interference with the performance of 
the employee's official duties.
    (4) The requester is responsible for all costs associated with an 
employee's appearance, including provision of a copy of a transcript of 
the deposition at the request of the Office of General Counsel. The 
person whose deposition was transcribed does not waive his or her right 
to review the transcript and note errors.
    (c) Restrictions on use and disclosure. The Finance Board may 
condition its authorization of deposition testimony on an agreement of 
the parties to appropriate limitations, such as an agreement to keep 
the transcript of the testimony under seal or to make the transcript 
available only to the parties, the court or other body, or the jury. 
Upon request made pursuant to this part or on its own initiative, the 
Finance Board may authorize use of a deposition transcript in another 
legal proceeding or non-adversarial matter.
    (d) Responsibility of litigants. If the testimony is disclosed in 
connection with a legal proceeding, the requester is responsible for:
    (1) Promptly notifying all other parties to the legal proceeding of 
the disclosure, and, after entry of a protective order, providing 
copies of the testimony to the other parties who are signatories and 
subject to the protective order; and
    (2) At the conclusion of the legal proceeding, retrieving the 
testimony from the court or other body's file as soon as it is no 
longer required and certifying to the Finance Board that every party 
covered by the protective order has destroyed the unpublished 
information.


Sec. 905.8  Availability of unpublished information by document.

    (a) Scope. The scope of permissible document disclosure is limited 
to that set forth in the written authorization granted by the Finance 
Board. The Finance Board may act to ensure that the scope of documents 
provided is consistent with the written authorization.
    (b) Restrictions on use and disclosure. The Finance Board may 
condition a decision to disclose unpublished information by document on 
entry of a protective order satisfactory to the Finance Board by the 
court or other body presiding in a legal proceeding or, in non-
adversarial matters, on a written agreement of confidentiality that 
limits access of third parties to the unpublished information. In a 
legal proceeding in which a protective order already has been entered, 
the Finance Board may condition a decision to disclose unpublished 
information upon inclusion of additional or amended provisions in the 
protective order. Upon request made pursuant to this part or on its own 
initiative, the Finance Board may authorize use of the documents in 
another legal proceeding or non-adversarial matter.
    (c) Responsibility of litigants. If the documents are disclosed in 
connection

[[Page 44109]]

with a legal proceeding, the requester is responsible for:
    (1) Promptly notifying all other parties to the legal proceeding of 
the disclosure, and, after entry of a protective order, providing 
copies of the documents to the other parties that are signatories and 
subject to the protective order; and
    (2) At the conclusion of the legal proceeding, retrieving the 
documents from the court or other body's file as soon as they are no 
longer required and certifying to the Finance Board that every party 
covered by the protective order has destroyed the unpublished 
information.
    (d) Certification or authentication. If the Finance Board has 
authorized disclosure of unpublished information by document, it will 
provide certified or authenticated copies of the document upon request.


Sec. 905.9  Fees.

    (a) Fees for records search, copying, and certification. Unless 
waived or reduced, a requester must pay a fee to the Finance Board for 
the costs of searching, copying, authenticating, or certifying 
unpublished information in accordance with 12 CFR 904.9. The Office of 
Resource Management generally will bill a requester upon completion of 
the production, but, in certain instances, may require a requester to 
remit payment prior to providing the requested information. To pay fees 
assessed under this section, a requester must deliver to the Office of 
Resource Management, located at the Federal Housing Finance Board, 1777 
F Street, N.W., Washington, D.C. 20006, a check or money order made 
payable to the ``Federal Housing Finance Board.''
    (b) Witness fees and mileage. (1) Current Finance Board or federal 
employees. If the Finance Board authorizes disclosure of unpublished 
information by testimony of a current Finance Board employee or agent 
or a former Finance Board employee or agent who is still in the employ 
of the United States, upon completion of the testimonial appearance the 
requester must remit promptly to the Office of Resource Management 
payment for witness fees and mileage computed in accordance with 28 
U.S.C. 1821.
    (2) Former employees or agents. If the Finance Board authorizes 
disclosure of unpublished information by testimony of a former Finance 
Board employee or agent who is not currently employed by the United 
States, upon completion of the testimonial appearance the requester 
must remit promptly to the witness any witness fees or mileage due in 
accordance with 28 U.S.C. 1821.

    Dated: August 6, 1999.

    By the Board of Directors of the Federal Housing Finance Board.
Bruce A. Morrison,
Chairperson.
[FR Doc. 99-21060 Filed 8-12-99; 8:45 am]
BILLING CODE 6725-01-P