[Federal Register Volume 66, Number 185 (Monday, September 24, 2001)]
[Proposed Rules]
[Pages 48824-48828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-23771]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 ========================================================================
 

  Federal Register / Vol. 66, No. 185 / Monday, September 24, 2001 / 
Proposed Rules  

[[Page 48824]]



OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2608

RIN 3209-AA23


Testimony by OGE Employees and Production of Official Records in 
Legal Proceedings

AGENCY: U.S. Office of Government Ethics (OGE).

ACTION: Proposed rule.

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SUMMARY: The Office of Government Ethics seeks public comment on a 
proposed rule that would set forth procedures that requesters would 
have to follow when making demands or requests to an OGE employee to 
produce official records and information, and provide testimony 
relating to official information, in connection with a legal proceeding 
in which OGE is not a party. As proposed, this rule would establish 
procedures to respond to such demands and requests in an orderly and 
consistent manner. The proposed rule, among other benefits, will 
promote uniformity in decisions, protect confidential information, 
provide guidance to requesters, and reduce the potential for both 
inappropriate disclosures of official information and wasteful 
allocation of agency resources.

DATES: Comments must be received on or before November 23, 2001.

ADDRESSES: Send comments to William E. Gressman, Senior Associate 
General Counsel, Office of General Counsel & Legal Policy, Office of 
Government Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 
20005-3917.

FOR FURTHER INFORMATION CONTACT: William E. Gressman, Senior Associate 
General Counsel, Office of Government Ethics, telephone: 202-208-8000; 
TDD: 202-208-8025; FAX: 202-208-8037; Internet E-mail address: 
[email protected]. For E-mail messages, the subject line should include the 
following reference: Proposed Rule on Testimony by OGE Employees and 
Production of Official Records in Legal Proceedings.

SUPPLEMENTARY INFORMATION:

Background

    The Office of Government Ethics occasionally receives subpoenas and 
requests for OGE employees to provide evidence in litigation in which 
OGE is not a party. Typically, these subpoenas and requests are for OGE 
records that are not available to the public under the Freedom of 
Information Act. Also, OGE sometimes receives subpoenas and requests 
for OGE employees to appear as witnesses in litigation in conjunction 
with a request for nonpublic records. Requesters have sought 
information, for example, on a particular filer of a financial 
disclosure report, a particular nominee or incumbent or former employee 
and for any ethics advice that OGE may have given to that individual, 
or concerning the nature of ethical advice that OGE gave to another 
agency and how OGE arrived at that advice.
    Responding to such demands and requests sometimes results in a 
significant disruption in an OGE employee's work schedule. The result 
is that employees may be diverted from performing their official duties 
in order to respond to requests from parties in litigation. In order to 
address this problem, many agencies over the years have issued 
``Touhy'' regulations that are similar to this proposed regulation, 
governing the circumstances and manner in which an employee may respond 
to demands for testimony or for the production of documents. Such a 
regulation was upheld by the United States Supreme Court in United 
States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    In Touhy, the Supreme Court held that a Department of Justice (DOJ) 
official, acting on order of the Attorney General, could not be held in 
contempt for declining to produce records in response to a subpoena. 
The employee's refusal was based upon a DOJ regulation that prohibited 
disclosure of agency files, documents, records, or information without 
the express approval of the Attorney General. The Court upheld the 
validity of the DOJ regulation, reasoning that it was appropriate for 
the Attorney General to prescribe regulations not inconsistent with law 
for the custody, use, and preservation of records, papers, and property 
pertaining to the Department of Justice.
    Briefly summarized, the proposed rule would prohibit disclosure of 
nonpublic official records or testimony by OGE employees unless there 
is compliance with the rule (Secs. 2608.201 and 2608.203). The proposed 
rule identifies the factors that OGE will consider in making 
determinations in response to such requests and what information 
requesters must provide (Secs. 2608.202 and 2608.203). The proposed 
rule also specifies when the request should be submitted 
(Sec. 2608.203), the time period for review (Sec. 2608.205), potential 
fees (Sec. 2608.301), and, if a request is granted, any restrictions 
that may be placed on the disclosure of records or the appearance of an 
OGE employee as a witness (Secs. 2608.207 and 2608.208). The proposed 
charges for witnesses are the same as those provided by the Federal 
courts; and the fees related to production of records are the same as 
those charged under FOIA. The proposed charges for time spent by an 
employee to prepare for testimony and for certification of records by 
OGE are authorized under 31 U.S.C. 9701, which permits an agency to 
charge for services or things of value that are provided by the agency.
    The proposed rule applies to a broad range of matters in any legal 
proceeding in which OGE is not a named party. It also applies to former 
and current OGE employees (as well as OGE consultants and advisers). 
Former employees are prohibited from testifying about specific matters 
for which they had responsibility during their active employment unless 
permitted to testify as provided in the proposed rule. They would not 
be barred from appearing to testify about general matters unconnected 
with the specific matters for which they had responsibility.
    The proposed regulation will ensure a more efficient use of OGE 
resources, minimize the possibility of involving OGE in issues 
unrelated to its responsibilities, promote uniformity in responding to 
such requests and subpoenas, and maintain the impartiality of OGE in 
matters that are in dispute between other parties. It also would serve 
OGE's interest in protecting sensitive, confidential, and privileged 
information and records that are generated in response to the 
requirements in the ethics laws and regulations.

[[Page 48825]]

    The proposed OGE rule is internal (not branchwide), and is 
essentially procedural, not substantive. It would not create a right to 
obtain official records or the testimony of an OGE employee nor would 
it create any additional right or privilege not already available to 
OGE to deny any demand or request therefor. However, failure to comply 
with the procedures in the proposed rule would be a basis for denying a 
demand or request submitted to OGE.

Matters of Regulatory Procedure

Administrative Procedure Act

    This proposed rulemaking is in compliance with the Administrative 
Procedure Act (5 U.S.C. 553) and allows for a 60-day comment period. 
Interested persons are invited to submit written comments to OGE on 
this proposed regulation, to be received on or before November 23, 
2001. The Office of Government Ethics will review all comments received 
and consider any modifications to this proposal which appear warranted 
in issuing its final rule.

Regulatory Flexibility Act

    For purposes of the Regulatory Flexibility Act (5 U.S.C. chapter 
6), the proposed rule, if adopted, will not have a significant economic 
impact on a substantial number of small entities. The proposed rule 
addresses only the procedures to be followed in the production or 
disclosure of OGE materials and information in litigation where OGE is 
not a party. Accordingly, OGE has determined that a Regulatory 
Flexibility Analysis is not required.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
chapter 25, subchapter II), the proposed rule would not significantly 
or uniquely affect small governments and would not result in increased 
expenditures by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more (as adjusted for 
inflation).

Executive Order 12866

    In issuing this proposed regulation, the Office of Government 
Ethics has adhered to the regulatory philosophy and the applicable 
principles of regulation as set forth in section 1 of Executive Order 
12866, Regulatory Planning and Review. This proposed rule has not been 
reviewed by the Office of Management and Budget under that Executive 
order since it is not a significant regulatory action within the 
meaning of the Executive order.

Executive Order 12988

    As Director of the Office of Government Ethics, I have reviewed 
this proposed regulation in light of section 3 of Executive Order 
12988, Civil Justice Reform, and certify that it meets the applicable 
standards provided therein.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
because this proposed regulation does not contain information 
collection requirements that require approval by the Office of 
Management and Budget. The Office of Government Ethics expects the 
collection of information that is called for by the proposed regulation 
would involve fewer than ten persons each year.

Congressional Review Act

    The Office of Government Ethics has determined that this proposed 
rulemaking involves a nonmajor rule under the Congressional Review Act 
(5 U.S.C. chapter 8) and will, before the future final rule takes 
effect, provide a report thereon to the U.S. Senate, House of 
Representatives and General Accounting Office in accordance with that 
law.

List of Subjects in 5 CFR Part 2608

    Administrative practice and procedure, Conflict of interests, 
Courts, Government employees, Records, Subpoenas, Testimony.

    Approved: September 18, 2001.
Amy L. Comstock,
Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the Office 
of Government Ethics proposes to add a new part 2608 to 5 CFR to read 
as follows:

PART 2608--TESTIMONY BY OGE EMPLOYEES AND PRODUCTION OF OFFICIAL 
RECORDS IN LEGAL PROCEEDINGS

Subpart A--General Provisions
Sec.
2608.101  Scope and purpose.
2608.102  Applicability.
2608.103  Definitions.
Subpart B--Requests for Testimony and Production of Documents
2608.201  General prohibition.
2608.202  Factors OGE will consider.
2608.203  Filing requirements for demands or requests for documents 
or testimony.
2608.204  Service of subpoenas or requests.
2608.205  Processing demands or requests.
2608.206  Final determination.
2608.207  Restrictions that apply to testimony.
2608.208  Restrictions that apply to released records.
2608.209  Procedure when a decision is not made prior to the time a 
response is required.
2608.210  Procedure in the event of an adverse ruling.
Subpart C--Schedule of Fees
2608.301  Fees.
Subpart D--Penalties
2608.401   Penalties.

    Authority: 5 U.S.C. App. (Sec. 401, Ethics in Government Act of 
1978); 44 U.S.C. 3101-3107, 3301-3303a, 3308-3314.

Subpart A--General Provisions


Sec. 2608.101  Scope and purpose.

    (a) This part sets forth policies and procedures you must follow 
when you submit a demand or request to an employee of the Office of 
Government Ethics (OGE) to produce official records and information, or 
provide testimony relating to official information, in connection with 
a legal proceeding. You must comply with these requirements when you 
request the release or disclosure of official records and information.
    (b) The Office of Government Ethics intends these provisions to:
    (1) Promote economy and efficiency in its programs and operations;
    (2) Minimize the possibility of involving OGE in controversial 
issues not related to our functions;
    (3) Maintain OGE's impartiality among private litigants where OGE 
is not a named party; and
    (4) Protect sensitive, confidential information and the 
deliberative processes of OGE.
    (c) In providing for these requirements, OGE does not waive the 
sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of OGE. 
It does not create any right or benefit, substantive or procedural, 
that a party may rely upon in any legal proceeding against the United 
States.


Sec. 2608.102  Applicability.

    This part applies to demands and requests to employees for factual 
or expert testimony relating to official information, or for production 
of official records or information, in legal proceedings in which OGE 
is not a named party. However, it does not apply to:
    (a) Demands upon or requests for an OGE employee to testify as to 
facts or events that are unrelated to his or her official duties or 
that are unrelated to the functions of OGE;

[[Page 48826]]

    (b) Demands upon or requests for a former OGE employee to testify 
as to matters in which the former employee was not directly or 
materially involved while at the OGE;
    (c) Requests for the release of records under the Freedom of 
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; and
    (d) Congressional demands and requests for testimony or records.


Sec. 2608.103  Definitions.

    Demand means a subpoena, or an order or other command of a court or 
other competent authority, for the production, disclosure, or release 
of records or for the appearance and testimony of an OGE employee that 
is issued in a legal proceeding.
    General Counsel means the General Counsel of OGE or a person to 
whom the General Counsel has delegated authority under this part.
    Legal proceeding means any matter before a court of law, 
administrative board or tribunal, commission, administrative law judge, 
hearing officer, or other body that conducts a legal or administrative 
proceeding. Legal proceeding includes all phases of litigation.
    OGE means the U.S. Office of Government Ethics.
    OGE employee or employee means:
    (1) Any current or former officer or employee of OGE;
    (2) Any other individual hired through contractual agreement by or 
on behalf of the OGE or who has performed or is performing services 
under such an agreement for OGE; and
    (3) Any individual who served or is serving in any consulting or 
advisory capacity to OGE, whether formal or informal.
    (4) Provided, that this definition does not include persons who are 
no longer employed by OGE and who are retained or hired as expert 
witnesses or who agree to testify about general matters, matters 
available to the public, or matters with which they had no specific 
involvement or responsibility during their employment with OGE.
    Records or official records and information mean:
    (1) All documents and materials which are OGE agency records under 
the Freedom of Information Act, 5 U.S.C. 552;
    (2) All other documents and materials contained in OGE files; and
    (3) All other information or materials acquired by an OGE employee 
in the performance of his or her official duties or because of his or 
her official status.
    Request means any informal request, by whatever method, for the 
production of records and information or for testimony which has not 
been ordered by a court or other competent authority.
    Testimony means any written or oral statements, including 
depositions, answers to interrogatories, affidavits, declarations, 
recorded interviews, and statements made by an individual in connection 
with a legal proceeding.

Subpart B--Requests for Testimony and Production of Documents


Sec. 2608.201  General prohibition.

    No employee may produce official records and information or provide 
any testimony relating to official information in response to a demand 
or request without the prior, written approval of the General Counsel.


Sec. 2608.202  Factors OGE will consider.

    The General Counsel, in his or her sole discretion, may grant an 
employee permission to testify on matters relating to official 
information, or produce official records and information, in response 
to a demand or request. Among the relevant factors that the General 
Counsel may consider in making this decision are whether:
    (a) The purposes of this part are met;
    (b) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (c) OGE has an interest in the decision that may be rendered in the 
legal proceeding;
    (d) Allowing such testimony or production of records would assist 
or hinder OGE in performing its statutory duties or use OGE resources 
where responding to the request will interfere with the ability of OGE 
employees to do their work;
    (e) Allowing such testimony or production of records would be in 
the best interest of OGE or the United States;
    (f) The records or testimony can be obtained from other sources;
    (g) The demand or request is unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand or request 
arose;
    (h) Disclosure would violate a statute, Executive order or 
regulation;
    (i) Disclosure would reveal confidential, sensitive, or privileged 
information, trade secrets or similar, confidential commercial or 
financial information, or would otherwise be inappropriate for release;
    (j) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceedings, or compromise constitutional 
rights;
    (k) Disclosure would result in OGE appearing to favor one litigant 
over another;
    (l) Disclosure relates to documents that were produced by another 
agency;
    (m) A substantial Government interest is implicated;
    (n) The demand or request is within the authority of the party 
making it; and
    (o) The demand or request is sufficiently specific to be answered.


Sec. 2608.203  Filing requirements for demands or requests for 
documents or testimony.

    You must comply with the following requirements whenever you issue 
demands or requests to an OGE employee for official records and 
information or testimony.
    (a) Your request must be in writing and must be submitted to the 
General Counsel. If you serve a subpoena on OGE or an OGE employee 
before submitting a written request and receiving a final 
determination, OGE will oppose the subpoena on grounds that your 
request was not submitted in accordance with this subpart.
    (b) Your written request must contain the following information:
    (1) The caption of the legal proceeding, docket number, and name 
and address of the court or other authority involved;
    (2) A copy of the complaint or equivalent document setting forth 
the assertions in the case and any other pleading or document necessary 
to show relevance;
    (3) A list of categories of records sought, a detailed description 
of how the information sought is relevant to the issues in the legal 
proceeding, and a specific description of the substance of the 
testimony or records sought;
    (4) A statement as to how the need for the information outweighs 
the need to maintain any confidentiality of the information and 
outweighs the burden on OGE to produce the records or provide 
testimony;
    (5) A statement indicating that the information sought is not 
available from another source, from other persons or entities, or from 
the testimony of someone other than an OGE employee, such as a retained 
expert;
    (6) If testimony is requested, the intended use of the testimony, a 
general summary of the desired testimony, and a showing that no 
document could be provided and used in lieu of testimony;
    (7) A description of all prior decisions, orders, or pending 
motions in the case that bear upon the relevance of the requested 
records or testimony;

[[Page 48827]]

    (8) The name, address, and telephone number of counsel to each 
party in the case; and
    (9) An estimate of the amount of time that the requester and other 
parties will require with each OGE employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding.
    (c) The Office of Government Ethics reserves the right to require 
additional information to complete your request where appropriate.
    (d) Your request should be submitted at least 45 days before the 
date that records or testimony is required. Requests submitted in less 
than 45 days before records or testimony is required must be 
accompanied by a written explanation stating the reasons for the late 
request and the reasons for expedited processing.
    (e) Failure to cooperate in good faith to enable the General 
Counsel to make an informed decision may serve as the basis for a 
determination not to comply with your request.


Sec. 2608.204  Service of subpoenas or requests.

    Subpoenas or requests for official records or information or 
testimony must be served on the General Counsel, Office of Government 
Ethics, Suite 500, 1201 New York Avenue, NW., Washington, DC 20005-
3917.


Sec. 2608.205  Processing demands or requests.

    (a) After service of a demand or request to testify, the General 
Counsel will review the demand or request and, in accordance with the 
provisions of this subpart, determine whether, or under what 
conditions, to authorize the employee to testify on matters relating to 
official information and/or produce official records and information.
    (b) The Office of Government Ethics will process requests in the 
order in which they are received. Absent exigent or unusual 
circumstances, OGE will respond within 45 days from the date that we 
receive it. The time for response will depend upon the scope of the 
request.
    (c) The General Counsel may grant a waiver of any procedure 
described by this subpart where a waiver is considered necessary to 
promote a significant interest of OGE or the United States or for other 
good cause.


Sec. 2608.206  Final determination.

    The General Counsel makes the final determination on demands and 
requests to employees for production of official records and 
information or testimony. All final determinations are within the sole 
discretion of the General Counsel. The General Counsel will notify the 
requester and the court or other authority of the final determination, 
the reasons for the grant or denial of the demand or request, and any 
conditions that the General Counsel may impose on the release of 
records or information, or on the testimony of an OGE employee.


Sec. 2608.207  Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on 
the testimony of OGE employees including, for example, limiting the 
areas of testimony or requiring the requester and other parties to the 
legal proceeding to agree that the transcript of the testimony will be 
kept under seal or will only be used or made available in the 
particular legal proceeding for which testimony was requested. The 
General Counsel may also require a copy of the transcript of testimony 
at the requester's expense.
    (b) The Office of Government Ethics may offer the employee's 
written declaration in lieu of testimony.
    (c) If authorized to testify pursuant to this part, an employee may 
testify as to facts within his or her personal knowledge, but, unless 
specifically authorized to do so by the General Counsel, the employee 
shall not:
    (1) Disclose confidential or privileged information;
    (2) Testify as to facts when the General Counsel determines such 
testimony would not be in the best interest of OGE or the United 
States; or
    (3) For a current OGE employee, testify as an expert or opinion 
witness with regard to any matter arising out of the employee's 
official duties or the functions of OGE unless testimony is being given 
on behalf of the United States (see also Sec. 2635.805 of this 
chapter).


Sec. 2608.208  Restrictions that apply to released records.

    (a) The General Counsel may impose conditions or restrictions on 
the release of official records and information, including the 
requirement that parties to the proceeding obtain a protective order or 
execute a confidentiality agreement to limit access and any further 
disclosure. The terms of the protective order or of a confidentiality 
agreement must be acceptable to the General Counsel. In cases where 
protective orders or confidentiality agreements have already been 
executed, OGE may condition the release of official records and 
information on an amendment to the existing protective order or 
confidentiality agreement.
    (b) If the General Counsel so determines, original OGE records may 
be presented for examination in response to a demand or request, but 
they are not to be presented as evidence or otherwise used in a manner 
by which they could lose their identity as official OGE records, nor 
are they to be marked or altered. In lieu of the original records, 
certified copies will be presented for evidentiary purposes (see 28 
U.S.C. 1733).


Sec. 2608.209  Procedure when a decision is not made prior to the time 
a response is required.

    If a response to a demand or request is required before the General 
Counsel can make the determination referred to in Sec. 2608.201, the 
General Counsel will provide the court or other competent authority 
with a copy of this part, inform the court or other competent authority 
that the demand or request is being reviewed, and seek a stay of the 
demand or request pending a final determination.


Sec. 2608.210  Procedure in the event of an adverse ruling.

    If the court or other competent authority fails to stay the demand, 
the employee upon whom the demand is made will appear at the stated 
time and place, produce a copy of this part, state that the employee 
has been advised by counsel not to provide the requested testimony or 
produce documents, and respectfully decline to comply with the demand, 
citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). A 
written response may be offered to a request, or to a demand, if 
permitted by the court or other competent authority.

Subpart C--Schedule of Fees


Sec. 2608.301  Fees.

    (a) Generally. The General Counsel may condition the production of 
records or appearance for testimony upon advance payment of a 
reasonable estimate of the costs to OGE.
    (b) Fees for records. Fees for producing records will include fees 
for searching, reviewing, and duplicating records, costs of attorney 
time spent in reviewing the demand or request, and expenses generated 
by materials and equipment used to search for, produce, and copy the 
responsive information. Costs for employee time will be calculated on 
the basis of the hourly pay of the employee (including all pay, 
allowance, and benefits). Fees for duplication will be the same as 
those charged by OGE in its Freedom of Information Act and Ethics in 
Government Act fee regulations at 5 CFR part 2604 (subparts E and G).
    (c) Witness fees. Fees for attendance by a witness will include 
fees, expenses,

[[Page 48828]]

and allowances prescribed by the court's rules. If no such fees are 
prescribed, witness fees will be determined based upon the rule of the 
Federal district court closest to the location where the witness will 
appear. Such fees will include cost of time spent by the witness to 
prepare for testimony, in travel, and for attendance in the legal 
proceeding.
    (c) Payment of fees. You must pay witness fees for current OGE 
employees and any records certification fees by submitting to the 
General Counsel a check or money order for the appropriate amount made 
payable to the Treasury of the United States. In the case of testimony 
by former OGE employees, you must pay applicable fees directly to the 
former employee in accordance with 28 U.S.C. 1821 or other applicable 
statutes.
    (d) Certification (authentication) of copies of records. The Office 
of Government Ethics may certify that records are true copies in order 
to facilitate their use as evidence. If you seek certification, you 
must request certified copies from OGE at least 45 days before the date 
they will be needed. The request should be sent to the General Counsel. 
You will be charged a certification fee of $15.00 for each document 
certified.
    (e) Waiver or reduction of fees. The General Counsel, in his or her 
sole discretion, may, upon a showing of reasonable cause, waive or 
reduce any fees in connection with the testimony, production, or 
certification of records.
    (f) De minimis fees. Fees will not be assessed if the total charge 
would be $10.00 or less.

Subpart D--Penalties


Sec. 2608.401  Penalties.

    (a) An employee who discloses official records or information or 
gives testimony relating to official information, except as expressly 
authorized by OGE or as ordered by a Federal court after OGE has had 
the opportunity to be heard, may face the penalties provided in 18 
U.S.C. 641 and other applicable laws. Additionally, former OGE 
employees are subject to the restrictions and penalties of 18 U.S.C. 
207 and 216.
    (b) A current OGE employee who testifies or produces official 
records and information in violation of this part shall be subject to 
disciplinary action.

[FR Doc. 01-23771 Filed 9-21-01; 8:45 am]
BILLING CODE 6345-01-U