[Federal Register Volume 68, Number 17 (Monday, January 27, 2003)]
[Rules and Regulations]
[Pages 4070-4073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-1997]



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DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary

6 CFR Part 5

RIN 1601-AA01


Production or Disclosure of Official Information in Connection 
With Legal Proceedings

AGENCY: Office of the Secretary, Homeland Security.

ACTION: Interim final rule.

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SUMMARY: This interim final rule establishes procedures for the public 
to obtain the production or disclosure of official information in 
connection with litigation, including litigation to which the 
Department of Homeland Security is not a party.

DATES: This interim final rule is effective January 27, 2003. Written 
comments may be submitted by February 26, 2003.

ADDRESSES: Submit written comments (preferably an original and three 
copies) to Associate General Counsel (General Law), Department of 
Homeland Security, Washington, DC.

FOR FURTHER INFORMATION CONTACT: Ellen McClain, (202) 612-1952, not a 
toll free call.

SUPPLEMENTARY INFORMATION:

I. Background

    On November 25, 2002, the President signed into law the Homeland 
Security Act (Pub. L. 107-296), which created the new Department of 
Homeland Security (DHS). Pursuant to the provisions of the Act, the new 
Department came into existence on January 24, 2003.
    In order to establish procedures to facilitate public interaction 
with DHS, DHS is issuing an initial series of proposed and interim 
final regulations.

II. The Interim Final Rule

    This interim final rule establishes procedures governing the 
disclosure of information in connection with litigation and certain 
other types of proceedings.

III. Procedural Requirements

    Because the DHS came into existence on January 24, 2003, it is 
necessary to promptly establish procedures to facilitate the 
interaction of the public with the Department. This interim final rule 
generally parallels the procedures concerning the disclosure of 
information in litigation currently used by other agencies. 
Accordingly, the Department has determined that notice and public 
procedure are impracticable, unnecessary and contrary to the public 
interest pursuant to 5 U.S.C. 553(b)(B). For the same reasons, the 
Department has determined that this interim rule should be issued 
without a delayed effective date pursuant to 5 U.S.C. 553(d)(3).
    Because no notice of proposed rulemaking is required, the 
provisions of the Regulatory Flexibility Act (5 U.S.C. chapter 6) do 
not apply.
    It has been determined that this rulemaking is not a significant 
regulatory action for the purposes of Executive Order 12866. 
Accordingly, a regulatory impact analysis is not required.

List of Subjects in 6 CFR Part 5

    Classified information, Courts, Freedom of information, Government 
employees, Privacy.

Authority and Issuance

    For the reasons set forth above, 6 CFR Part 5 is amended as 
follows:

PART 5--DISCLOSURE OF RECORDS AND INFORMATION

    1. The authority citation for part 5 continues to read as follows:

    Authority: Pub. L. 107-296, 116 Stat. 2135 (6 U.S.C. 101 et 
seq.); 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. 
Subpart B also issued under 5 U.S.C. 552a.

    2. Part 5 is amended by adding subpart C (Sec. Sec.  5.41 through 
5.49) to read as follows:

Subpart C--Disclosure of Information in Litigation

Sec.
5.41 Purpose and scope; definitions.
5.42 Service of summonses and complaints.
5.43 Service of subpoenas, court orders, and other demands or 
requests for official information or action.
5.44 Testimony and production of documents prohibited unless 
approved by appropriate Department officials.
5.45 Procedure when testimony or production of documents is sought; 
general.
5.46 Procedure when response to demand is required prior to 
receiving instructions.
5.47 Procedure in the event of an adverse ruling.
5.48 Considerations in determining whether the Department will 
comply with a demand or request.
5.49 Prohibition on providing expert or opinion testimony.


Sec.  5.41  Purpose and scope; definitions.

    (a) This subpart C sets forth the procedures to be followed with 
respect to:
    (1) Service of summonses and complaints or other requests or 
demands directed to the Department of Homeland Security (Department) or 
to any Department employee or former employee in connection with 
federal or state litigation arising out of or involving the performance 
of official activities of the Department; and
    (2) The oral or written disclosure, in response to subpoenas, 
orders, or other requests or demands of federal or state judicial or 
quasi-judicial or administrative authority as well as state legislative 
authorities (collectively, ``demands''), whether civil or criminal in 
nature, or in response to requests for depositions, affidavits, 
admissions, responses to interrogatories, document production, 
interviews, or other litigation-related matters, including pursuant to 
the Federal Rules of Civil Procedure, the Federal Rules of Criminal 
Procedure, or applicable state rules (collectively, ``requests''), of 
any material contained in the files of the Department, any information 
relating to material contained in the files of the Department, or any 
information acquired while the subject of the demand or request is or 
was employed by the Department, or served as Secretary of the 
Department, as part of the performance of that person's duties or by 
virtue of that person's official status.
    (b) The provisions established by this subpart shall apply to all 
Department components that are transferred to the Department. Except to 
the extent a Department component has adopted separate guidance 
governing the subject matter of a provision of this subpart, the 
provisions of this subpart shall apply to each component of the 
Department. Departmental components may issue their own guidance under 
this subpart subject to the approval of the General Counsel of the 
Department.
    (c) For purposes of this subpart, and except as the Department may 
otherwise determine in a particular case, the term employee includes 
all former Secretaries of Homeland Security and all employees of the 
Department of Homeland Security or other federal agencies who are or 
were appointed by, or subject to the supervision, jurisdiction, or 
control of the Secretary of Homeland Security, whether residing or 
working in the United States or abroad, including United States 
nationals, foreign nationals, and contractors. The procedures 
established within this subpart also apply to former employees of the 
Department where specifically noted.
    (d) For purposes of this subpart, the term litigation encompasses 
all pre-trial,

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trial, and post-trial stages of all judicial or administrative actions, 
hearings, investigations, or similar proceedings before courts, 
commissions, boards (including the Board of Appellate Review), grand 
juries, or other judicial or quasi-judicial bodies or tribunals, 
whether criminal, civil, or administrative in nature. This subpart 
governs, inter alia, responses to discovery requests, depositions, and 
other pre-trial, trial, or post-trial proceedings, as well as responses 
to informal requests by attorneys or others in situations involving 
litigation. However, this subpart shall not apply to any claims against 
the Department by Department of Homeland Security employees (present or 
former), or applicants for Department employment, for which 
jurisdiction resides with the U.S. Equal Employment Opportunity 
Commission; the U.S. Merit Systems Protection Board; the Office of 
Special Counsel; the Federal Labor Relations Authority; the Foreign 
Service Labor Relations Board; the Foreign Service Grievance Board; or 
a labor arbitrator operating under a collective bargaining agreement 
between the Department and a labor organization representing Department 
employees; or their successor agencies or entities.
    (e) For purposes of this subpart, official information means all 
information of any kind, however stored, that is in the custody and 
control of the Department, relates to information in the custody and 
control of the Department, or was acquired by Department employees, or 
former employees, as part of their official duties or because of their 
official status within the Department while such individuals were 
employed by or served on behalf of the Department.
    (f) Nothing in this subpart affects disclosure of information under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5 
U.S.C. 552a, Executive Order 12958 on national security information (3 
CFR, 1995 Comp., p. 333), the Government in the Sunshine Act, 5 U.S.C. 
552b, the Department's implementing regulations or pursuant to 
congressional subpoena. Nothing in this subpart permits disclosure of 
information by the Department, its present and former employees, or the 
Secretary, that is protected or prohibited by statute or other 
applicable law.
    (g) This subpart is intended only to inform the public about 
Department procedures concerning the service of process and responses 
to demands or requests and is not intended to and does not create, and 
may not be relied upon to create any right or benefit, substantive or 
procedural, enforceable at law by a party against the Department or the 
United States.
    (h) Nothing in this subpart affects the rules and procedures, under 
applicable U.S. law and international conventions, governing diplomatic 
and consular immunity.
    (i) Nothing in this subpart affects the disclosure of official 
information to other federal agencies or Department of Justice 
attorneys in connection with litigation conducted on behalf or in 
defense of the United States, its agencies, officers, and employees, or 
litigation in which the United States has an interest; or to federal, 
state, local, or foreign prosecuting and law enforcement authorities in 
conjunction with criminal law enforcement investigations, prosecutions, 
or other proceedings, e.g., extradition, deportation.


Sec.  5.42  Service of summonses and complaints.

    (a) Only the Office of the General Counsel is authorized to receive 
and accept on behalf of the Department summonses or complaints sought 
to be served upon the Department, the Secretary, or Department 
employees. All such documents should be delivered or addressed to the 
Office of the General Counsel, United States Department of Homeland 
Security, Washington, DC, 20258. The authorization for receipt shall in 
no way affect the requirements of service elsewhere provided in 
applicable rules and regulations.
    (b) In the event any summons or complaint described in Sec.  
5.41(a) is delivered to an employee of the Department other than in the 
manner specified in this part, the recipient thereof shall decline to 
accept the proffered service and may notify the person attempting to 
make service of the Departmental regulations set forth herein.
    (c) Except as otherwise provided Sec. Sec.  5.42(d) and 5.43(c), 
the Department is not an authorized agent for service of process with 
respect to civil litigation against Department employees purely in 
their personal, non-official capacity. Copies of summonses or 
complaints directed to Department employees in connection with legal 
proceedings arising out of the performance of official duties may, 
however, be served upon the Office of the General Counsel.
    (d) Although the Department is not an agent for the service of 
process upon its employees with respect to purely personal, non-
official litigation, the Department recognizes that its employees 
should not use their official positions to evade their personal 
obligations and will, therefore, counsel and encourage Department 
employees to accept service of process in appropriate cases.
    (e) Documents for which the Office of the General Counsel accepts 
service in official capacity only shall be stamped ``Service Accepted 
in Official Capacity Only''. Acceptance of service shall not constitute 
an admission or waiver with respect to jurisdiction, propriety of 
service, improper venue, or any other defense in law or equity 
available under applicable laws or rules.


Sec.  5.43  Service of subpoenas, court orders, and other demands or 
requests for official information or action.

    (a) Except in cases in which the Department is represented by legal 
counsel who have entered an appearance or otherwise given notice of 
their representation, only the Office of the General Counsel is 
authorized to receive and accept subpoenas, or other demands or 
requests directed to the Secretary, the Department, or any component 
thereof, or its employees, whether civil or criminal in nature, for:
    (1) Material, including documents, contained in the files of the 
Department;
    (2) Information, including testimony, affidavits, declarations, 
admissions, responses to interrogatories, or informal statements, 
relating to material contained in the files of the Department or which 
any Department employee acquired in the course and scope of the 
performance of his official duties;
    (3) Garnishment or attachment of compensation of current or former 
employees; or
    (4) The performance or non-performance of any official Department 
duty.
    (b) In the event that any subpoena, demand, or request is sought to 
be delivered to a Department employee other than in the manner 
prescribed in paragraph (a) of this section, such employee shall, after 
consultation with the Office of the General Counsel, decline service 
and direct the server of process to the Departmental regulations. If 
the subpoena, demand, or other request is nonetheless delivered to the 
employee, the employee shall immediately forward a copy of that 
document to the Office of the General Counsel.
    (c) Except as otherwise provided in this subpart, the Department is 
not an agent for service, or otherwise authorized to accept on behalf 
of its employees, any subpoenas, show-cause orders, or similar 
compulsory process of federal or state courts, or requests from private 
individuals or attorneys, which are not related to the employees' 
official

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duties except upon the express, written authorization of the individual 
Department employee to whom such demand or request is directed.
    (d) Acceptance of such documents by the Office of the General 
Counsel does not constitute a waiver of any defenses that might 
otherwise exist with respect to service under the Federal Rules of 
Civil or Criminal Procedure or other applicable rules.
    (e) Copies of any subpoenas, show cause orders, or similar 
compulsory process of federal or state courts, or requests from private 
individuals or attorneys, directed to former employees of the 
Department in connection with legal proceedings arising out of the 
performance of official duties shall also be served upon the Office of 
the General Counsel. The Department shall not, however, serve as an 
agent for service for the former employee, nor is the Department 
otherwise authorized to accept service on behalf of its former 
employees. If the demand involves their official duties, former 
employees who receive subpoenas, show cause orders, or similar 
compulsory process of federal or state courts should also notify in the 
component of the Department in which they were employed if the service 
involves their official duties while so employed.
    (f) If the subpoena, demand, or other request is nonetheless 
delivered to the employee, the employee shall immediately forward a 
copy of that document to the Office of the General Counsel.


Sec.  5.44  Testimony and production of documents prohibited unless 
approved by appropriate Department officials.

    (a) No employee, or former employee, of the Department shall, in 
response to a demand or request, including in connection with any 
litigation, provide oral or written testimony by deposition, 
declaration, affidavit, or otherwise concerning any information 
acquired while such person is or was an employee of the Department as 
part of the performance of that person's official duties or by virtue 
of that person's official status, unless authorized to do so by the 
Office of the General Counsel, or as authorized in Sec.  5.44(b).
    (b) No employee, or former employee, shall, in response to a demand 
or request, including in connection with any litigation, produce any 
document or any material acquired as part of the performance of that 
employee's duties or by virtue of that employee's official status, 
unless authorized to do so by the Office of the General Counsel or the 
delegates thereof, as appropriate.


Sec.  5.45  Procedure when testimony or production of documents is 
sought; general.

    (a) If official information is sought, through testimony or 
otherwise, by a request or demand, the party seeking such release or 
testimony must (except as otherwise required by federal law or 
authorized by the Office of the General Counsel) set forth in writing, 
and with as much specificity as possible, the nature and relevance of 
the official information sought. Where documents or other materials are 
sought, the party should provide a description using the types of 
identifying information suggested in Sec.  5.3(b). Subject to Sec.  
5.47, Department employees may only produce, disclose, release, comment 
upon, or testify concerning those matters which were specified in 
writing and properly approved by the appropriate Department official 
designated in Sec.  5.44. See United States ex rel. Touhy v. Ragen, 340 
U.S. 462 (1951). The Office of the General Counsel may waive the 
requirement of this subsection in appropriate circumstances.
    (b) To the extent it deems necessary or appropriate, the Department 
may also require from the party seeking such testimony or documents a 
plan of all reasonably foreseeable demands, including but not limited 
to the names of all employees and former employees from whom discovery 
will be sought, areas of inquiry, expected duration of proceedings 
requiring oral testimony, and identification of potentially relevant 
documents.
    (c) The appropriate Department official designated in Sec.  5.42 
will notify the Department employee and such other persons as 
circumstances may warrant of its decision regarding compliance with the 
request or demand.
    (d) The Office of the General Counsel will consult with the 
Department of Justice regarding legal representation for Department 
employees in appropriate cases.


Sec.  5.46  Procedure when response to demand is required prior to 
receiving instructions.

    (a) If a response to a demand is required before the appropriate 
Department official designated in Sec.  5.44 renders a decision, the 
Department, if necessary, will request that the Department of Justice 
or the appropriate Department attorney take appropriate steps to stay, 
postpone, or obtain relief from the demand pending decision. If 
necessary, the attorney will:
    (1) Appear with the employee upon whom the demand has been made;
    (2) Furnish the court or other authority with a copy of the 
regulations contained in this subpart;
    (3) Inform the court or other authority that the demand has been, 
or is being, as the case may be, referred for the prompt consideration 
of the appropriate Department official; and
    (4) Respectfully request the court or authority to stay the demand 
pending receipt of the requested instructions.
    (b) In the event that an immediate demand for production or 
disclosure is made in circumstances which would preclude the proper 
designation or appearance of a Department of Justice or appropriate 
Department attorney on the employee's behalf, the employee, if 
necessary, shall respectfully request from the demanding court or 
authority for a reasonable stay of proceedings for the purpose of 
obtaining instructions from the Department.


Sec.  5.47  Procedure in the event of an adverse ruling.

    If a stay of, or other relief from, the effect of the demand in 
response to a request made pursuant to Sec.  5.46 is declined or not 
obtained, or if the court or other judicial or quasi-judicial authority 
declines to stay the effect of the demand in response to a request made 
pursuant to Sec.  5.46, or if the court or other authority rules that 
the demand must be complied with irrespective of the Department's 
instructions not to produce the material or disclose the information 
sought, the employee upon whom the demand has been made shall 
respectfully decline to comply with the demand, citing this subpart and 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).


Sec.  5.48  Considerations in determining whether the Department will 
comply with a demand or request

    (a) In deciding whether to comply with a demand or request, 
Department officials and attorneys shall consider, among any other 
pertinent considerations:
    (1) Whether such compliance would be 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 arose;
    (2) Whether compliance is appropriate under the relevant 
substantive law concerning privilege or disclosure of information;
    (3) The public interest;
    (4) The need to conserve the time of Department employees for the 
conduct of official business;
    (5) The need to avoid spending the time and money of the United 
States for private purposes;

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    (6) The need to maintain impartiality between private litigants in 
cases where a substantial government interest is not implicated;
    (7) Whether compliance would have an adverse effect on performance 
by the Department of its mission and duties; and
    (8) The need to avoid involving the Department in controversial 
issues not related to its mission.
    (b) Among those demands and requests in response to which 
compliance will not ordinarily be authorized are those with respect to 
which any of the following factors, inter alia, exist:
    (1) Compliance would violate a statute or a rule of procedure;
    (2) Compliance would violate a specific regulation or Executive 
order;
    (3) Compliance would reveal information properly classified in the 
interest of national security;
    (4) Compliance would reveal confidential commercial or financial 
information or trade secrets without the owner's consent;
    (5) Compliance would reveal the internal deliberative processes of 
the Executive Branch; or
    (6) Compliance would potentially impede or prejudice an on-going 
law enforcement investigation.


Sec.  5.49  Prohibition on providing expert or opinion testimony.

    (a) Except as provided in this section, and subject to 5 CFR 
2635.805, Department employees shall not provide opinion or expert 
testimony based upon information which they acquired in the scope and 
performance of their official Department duties, except on behalf of 
the United States or a party represented by the Department of Justice.
    (b) Any expert or opinion testimony by a former employee of the 
Department shall be excepted from 5.49(a) where the testimony involves 
only general expertise gained while employed at the Department.
    (c) Upon a showing by the requestor of exceptional need or unique 
circumstances and that the anticipated testimony will not be adverse to 
the interests of the United States, the appropriate Department official 
designated in Sec.  5.44 may, consistent with 5 CFR 2635.805, in their 
discretion and with the concurrence of the Office of the General 
Counsel, grant special, written authorization for Department employees, 
or former employees, to appear and testify as expert witnesses at no 
expense to the United States.
    (d) If, despite the final determination of the appropriate 
Department official designated in Sec.  5.44, a court of competent 
jurisdiction or other appropriate authority orders the appearance and 
expert or opinion testimony of a current or former Department employee, 
that person shall immediately inform the Office of the General Counsel 
of such order. If the Office of the General Counsel determines that no 
further legal review of or challenge to the court's order will be made, 
the Department employee, or former employee, shall comply with the 
order. If so directed by the Office of the General Counsel, however, 
the employee, or former employee, shall respectfully decline to 
testify.

    Dated: January 24, 2003.
Tom Ridge,
Secretary of Homeland Security.
[FR Doc. 03-1997 Filed 1-24-03; 11:34 am]
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