[Federal Register Volume 68, Number 192 (Friday, October 3, 2003)]
[Rules and Regulations]
[Pages 57372-57375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24619]


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POSTAL SERVICE

39 CFR Part 230


Rules Governing Compliance With Subpoenas, Summonses, and Court 
Orders by Postal Employees Within the Office of Inspector General Where 
Neither the Postal Service, the United States, Nor Any Other Federal 
Agency Is a Party

AGENCY: Postal Service.

ACTION: Final rule.

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SUMMARY: The Postal Service is amending the Code of Federal Regulations 
to state the rules that govern compliance with subpoenas, summonses, 
and court orders served on employees of the Office of Inspector General 
where neither the Postal Service, the United States, nor any other 
federal agency is a party.

EFFECTIVE DATE: October 3, 2003.

FOR FURTHER INFORMATION CONTACT: Marta Erceg, Director, Legal Services, 
Office of Inspector General, at (703) 248-2447.

SUPPLEMENTARY INFORMATION: The Postal Service has previously published 
rules that govern compliance with subpoenas, summonses, and court 
orders served on Postal Service and Inspection Service employees. This 
is the first publication of subpoena compliance rules as they apply to 
Office of Inspector General employees.

List of Subjects in 39 CFR Part 230

    Administrative practice and procedure.

0
For the reasons stated in the preamble, the Postal Service amends 39 
CFR as follows:

PART 230--OFFICE OF INSPECTOR GENERAL

0
1. The authority citation for part 230 is revised to read as follows:

    Authority: 5 U.S.C. App.3; 39 U.S.C. 401(2) and 1001.

Subpart A--General Policy and Authority

0
2. Sections 230.1 through Sec.  230.5 are designated as new subpart A 
and a heading for subpart A is added to read as set forth above.

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3. Following Subpart A, add the following new subpart B:

Subpart B--Rules Governing Compliance with Subpoenas, Summonses, 
and Court Orders by Postal Employees Within the Office of Inspector 
General Where Neither the Postal Service, the United States, Nor 
Any Other Federal Agency Is a Party

Sec.
230.10 What do these rules govern?
230.11 What special definitions apply to these rules?
230.12 Can Office of Inspector General employees testify or produce 
documents that would assist me in my civil proceeding?
230.13 Why are restrictions on Office of Inspector General employees 
in civil proceedings necessary?
230.14 Who owns the written or recorded notes, memoranda, reports, 
and transcriptions made pursuant to an official investigation, 
audit, or review conducted by an employee of the Office of Inspector 
General?
230.15 What must an Office of Inspector General employee do if 
served with a demand requiring the production of documents or an 
appearance in court?
230.16 Is there a prohibition on presenting Office of Inspector 
General reports or records during an employee's testimony?
230.17 If an attempt is made to compel production of reports and 
records during the employee's testimony, what is an Office of 
Inspector General employee directed to do?
230.18 If authorization to testify or produce documents is not 
obtained by the employee, what is the employee directed to do?
230.19 What criteria will the authorizing official use to determine 
whether to authorize testimony or production of documents?
230.20 What records will not be released?
230.21 May the General Counsel to the Inspector General and/or a 
U.S. Department of Justice attorney represent the employee in any 
appearance?
230.22 May another employee be substituted for the employee 
requested to appear?.
230.23 May an Office of Inspector General employee testify as an 
expert or opinion witness?
230.24 How is a demand for employee documents or testimony made to 
the Office of Inspector General?
230.25 Who pays the costs incurred when the Office of Inspector 
General responds to a demand for documents or testimony?
230.26 Do these rules affect the service of process requirements of 
the Federal Rules of Civil Procedure (28 U.S.C. Appendix)?
230.27 Do these rules create any right or benefit enforceable by a 
party against the Postal Service?

Subpart B--Rules Governing Compliance With Subpoenas, Summonses, 
and Court Orders by Postal Employees Within the Office of Inspector 
General Where Neither the Postal Service, the United States, Nor 
Any Other Federal Agency Is a Party


Sec.  230.10  What do these rules govern?

    (a) Subpart B governs those situations where an employee of the 
Office of Inspector General has been summoned, subpoenaed, or given a 
court order in connection with any federal, state, local court, 
administrative, or legislative proceeding.
    (b) The rules in Subpart B do not apply to:
    (1) Proceedings where the United States, the Postal Service, or any 
other federal agency is named as a party;
    (2) Congressional requests or subpoenas for testimony or documents;
    (3) Employees serving as expert witnesses in connection with 
professional and consultative services under Title 5, Code of Federal 
Regulations, Part 7001, provided they state for the record that their 
testimony reflects their personal opinions and should not be viewed as 
the official position of the Postal Service;
    (4) Employees making appearances in their private capacities in 
proceedings that do not relate to their Postal Service employment, such 
as traffic accidents or domestic relations matters; and do not involve 
professional or consultative services;
    (5) Situations where the Inspector General or an official 
designated by the Inspector General determines that the best interests 
of the public or the Office of Inspector General would be served by an 
exemption from the regulations.
    (c) These rules should be read together with the Freedom of 
Information Act (FOIA), which provides additional information about 
access to records.


Sec.  230.11  What special definitions apply to these rules?

    The following definitions apply to Subpart B:
    (a) Authorizing official means the Inspector General or an official 
designated by the Inspector General to authorize release of documents 
or permission to testify.
    (b) Case or matter means any civil proceeding before a court of 
law, administrative board, hearing officer, or other body conducting a 
judicial or administrative proceeding in which the United States, the 
Postal Service, or another federal agency is not a named party.

[[Page 57373]]

    (c) Demand includes any request, order, or subpoena for testimony 
or the production of documents.
    (d) Document means all records, papers, or official files, 
including, but not limited to, official letters, telegrams, memoranda, 
reports, studies, calendar and diary entries, graphs, notes, charts, 
tabulations, data analyses, statistical or information accumulations, 
records of meetings and conversations, film impressions, magnetic 
tapes, computer discs, and sound or mechanical reproductions.
    (e) Employee or Office of Inspector General employee, for the 
purpose of this subpart only, means a Postal Service employee currently 
or formerly assigned to the Postal Service Office of Inspector General, 
student interns, contractors, and employees of contractors who have 
access to Office of Inspector General information and records.
    (f) General Counsel to the Inspector General means the General 
Counsel of the Office of Inspector General, or a person authorized by 
the Inspector General to give legal advice to Office of Inspector 
General employees. General Counsel to the Inspector General does not 
mean the General Counsel of the Postal Service.
    (g) Nonpublic includes any material or information not subject to 
mandatory public disclosure under Sec.  265.6(b) or which must be kept 
confidential under the Inspector General Act, 5 U.S.C. App. 3.
    (h) Office of Inspector General means the organizational unit 
within the Postal Service as outlined in part 221 of this chapter.
    (i) Office of Inspector General Manual is the document containing 
the standard operating procedures for criminal investigators, 
evaluators, and other employees of the Office of Inspector General.
    (j) Reports include all written reports, letters, recordings, or 
other memoralizations made in conjunction with the duties of an Office 
of Inspector General employee.
    (k) Testify or testimony includes both in-person oral statements 
before any body conducting a judicial or administrative proceeding and 
statements made in depositions, answers to interrogatories, 
declarations, affidavits, or other similar documents.


Sec.  230.12  Can Office of Inspector General employees testify or 
produce documents that would assist me in my civil proceeding?

    No current or former employee within the Office of Inspector 
General may testify or produce documents concerning information 
acquired in the course of employment or as a result of his or her 
relationship with the Postal Service in any proceeding to which this 
subpart applies (see Sec.  230.10), unless authorized to do so by an 
authorizing official.


Sec.  230.13  Why are restrictions on Office of Inspector General 
employees in civil proceedings necessary?

    The restrictions are intended to reduce the risk of inappropriate 
disclosures that might affect the operations of the Office of Inspector 
General; prevent the expenditure of Office of Inspector General or 
Postal Service resources for private purposes; and ensure that employee 
time is serving the best interests of the public.


Sec.  230.14  Who owns the written or recorded notes, memoranda, 
reports, and transcriptions made pursuant to an official investigation, 
audit, or review conducted by an employee of the Office of Inspector 
General?

    Notes, memoranda, reports, and transcriptions, whether written or 
recorded and made pursuant to an official investigation, audit, or 
review conducted by an employee of the Office of Inspector General, are 
the property of the Office of Inspector General.


Sec.  230.15  What must an Office of Inspector General employee do if 
served with a demand requiring the production of documents or an 
appearance in court?

    If an Office of Inspector General employee is served with a demand 
requiring the production of documents or an appearance in court, the 
employee must promptly inform the authorizing official of the nature of 
the documents or testimony sought and all relevant facts and 
circumstances. Office of Inspector General employees are directed to 
appear as the subpoena or summons may require, but may not testify or 
produce documents unless authorized.


Sec.  230.16  Is there a prohibition on presenting Office of Inspector 
General reports or records during an employee's testimony?

    Yes, Office of Inspector General reports or records will not be 
presented during an employee's testimony, unless authorized by an 
authorizing official.


Sec.  230.17  If an attempt is made to compel production of reports and 
records during the employee's testimony, what is an Office of Inspector 
General employee directed to do?

    If an attempt is made to compel production of reports and records 
during the employee's testimony, the employee is directed to decline to 
produce the item or information and to state that the material cannot 
be disclosed or produced without the approval of the authorizing 
official. All such requests, and any other requests for documents in 
judicial or administrative proceedings in which the United States is 
not a party, shall be deemed to be a request for records under the 
Freedom of Information Act and shall be handled pursuant to 39 CFR 
230.5.


Sec.  230.18  If authorization to testify or produce documents is not 
obtained by the employee, what is the employee directed to do?

    Absent written authorization from the authorizing official, the 
employee must respectfully decline to produce the requested documents, 
testify, or otherwise disclose the requested information. If the 
authorization is denied or not received by the return date, the 
employee, together with counsel, where appropriate, shall appear at the 
stated time and place, produce a copy of this section, and respectfully 
decline to testify or produce any document on the basis of the 
regulations in this section.


Sec.  230.19  What criteria will the authorizing official use to 
determine whether to authorize testimony or production of documents?

    (a) The authorizing official will determine whether testimony or 
the production of documents will be authorized according to the 
following criteria:
    (1) Statutory restrictions, as well as any legal objection, 
exemption, or privilege that may apply;
    (2) Relevant legal standards for disclosure of nonpublic 
information and documents;
    (3) Office of Inspector General rules and regulations;
    (4) The public interest;
    (5) Minimizing or preventing expenditures of Office of Inspector 
General and Postal Service time and resources solely for private 
purposes.
    (6) Minimizing the appearance of improperly favoring one litigant 
over another;
    (7) Minimizing the possibility that the public will misconstrue 
variances between personal opinions of Office of Inspector General 
employees and agency policy; and
    (8) Preserving the integrity of the administrative process.
    (b) Permission to testify or to release documents in all cases will 
be limited to matters outlined in the affidavit or declaration 
described in section 230.24 of this part or to such matters as deemed 
appropriate by the authorizing official.

[[Page 57374]]

If the authorizing official allows the release of documents or 
testimony to be given by an employee, arrangements shall be made for 
the taking of testimony or receipt of documents by the method least 
disruptive to the employee's official duties. Testimony may, for 
example, be provided by affidavits, answers to interrogatories, written 
depositions, or depositions transcribed, recorded, or preserved by any 
other means allowable by law.
    (c) Upon issuance of an unfavorable final determination by the 
authorizing official, the party or the party's counsel seeking 
testimony or documents may consult or negotiate with the authorizing 
official to refine and limit the demand.
    (d) The Office of Inspector General will offer all possible 
assistance to the courts, but the question of disclosing information 
for which an exemption may be claimed is a matter of discretion that 
rests with the authorizing official. If in the opinion of the 
authorizing official the documents should not be released or testimony 
should not be furnished, that determination will be final.


Sec.  230.20  What records will not be released?

    Generally, any record demanded by a subpoena duces tecum or 
appropriate court order can be released by a properly authorized Office 
of Inspector General employee, except for the following:
    (a) Records required to remain confidential by the Freedom of 
Information Act, the Privacy Act, and parts 230 and 262 of this 
chapter,
    (b) Records containing information relating to an employee's 
security or loyalty;
    (c) Original records;
    (d) Office of Inspector General criminal investigative reports, 
unless there is specific authorization by an authorizing official, 
after consulting with General Counsel to the Inspector General; and
    (e) The Office of Inspector General Manual and other operating 
instructions issued to Office of Inspector General employees, unless 
there is specific authorization by an authorizing official, after 
consultation with the General Counsel to the Inspector General. If the 
requested information relates to confidential investigative techniques, 
confidential sources of information, or information that must be kept 
confidential under the Inspector General Act, 5 U.S.C. app. 3, because 
release of the information would adversely affect the duties and 
obligations or law enforcement mission of the Office of Inspector 
General, the subpoenaed official, through the Inspector General, or an 
authorizing official, may request an in camera, ex parte conference to 
determine the necessity for the release of the information.


Sec.  230.21  May the General Counsel to the Inspector General and/or a 
U.S. Department of Justice attorney represent the employee in any 
appearance?

    At the option of the Attorney General, or an authorizing official, 
an Office of Inspector General legal counsel may represent and assist 
the employee. The authorizing official designated by the Inspector 
General may also request assistance from the U.S. Department of Justice 
in representing and assisting the employee in any appearance.


Sec.  230.22  May another employee be substituted for the employee 
requested to appear?

    The Inspector General or designee may, where appropriate, designate 
another Office of Inspector General employee to respond to a request 
for an appearance.


Sec.  230.23  May an Office of Inspector General employee testify as an 
expert or opinion witness?

    No, an Office of Inspector General employee may not testify as an 
expert or opinion witness with regard to any matter arising out of the 
employee's duties or functions at the Office of Inspector General for 
any party other than the United States, except that in extraordinary 
circumstances, and where the anticipated testimony will not be adverse 
to the interest of the United States, the authorizing official may 
approve such testimony in private litigation. A litigant must first 
obtain the permission of an authorizing official designated by the 
Inspector General before designating an Office of Inspector General 
employee as an expert or opinion witness.


Sec.  230.24  How is a demand for employee documents or testimony made 
to the Office of Inspector General?

    (a) All demands for the production of nonpublic documents or 
testimony of Office of Inspector General employees concerning matters 
relating to their official duties and subject to the conditions set 
forth in Sec.  230.601(b) shall be made in writing and conform to the 
following requirements outlined in paragraphs (b) and (c) of this 
section.
    (b) Before or simultaneously with service of a demand, the 
requesting party shall serve on the General Counsel to the Inspector 
General at the Office of Inspector General, 1735 North Lynn Street, 
Arlington, VA 22209-2020, a summons or subpoena issued in accordance 
with the appropriate rules of civil procedure along with an affidavit 
or sworn declaration containing the following information:
    (1) The title of the case and the forum where it will be heard;
    (2) The party's interest in the case;
    (3) The reasons for the demand;
    (4) A showing that the requested information is available, by law, 
to a party outside the Postal Service;
    (5) If testimony is sought, a detailed summary of the anticipated 
testimony;
    (6) If testimony is sought, a showing that Office of Inspector 
General records could not be provided and used in place of the 
requested testimony;
    (7) The intended use of the documents or testimony; and
    (8) An affirmative statement that the documents or testimony is 
necessary for defending or prosecuting the case at issue.


Sec.  230.25  Who pays the costs incurred when the Office of Inspector 
General responds to a demand for documents or testimony?

    (a) Unless determined by 28 U.S.C. 1821 or other applicable 
statute, the costs of providing testimony, including the cost of 
transcripts, shall be borne by the requesting party. Furthermore, 
unless limited by statute, such costs shall also include reimbursement 
to the Office of Inspector General for the usual and ordinary expenses 
attendant upon the employee's absence from his or her official duties 
in connection with the case or matter, including the employee's salary 
and applicable overhead charges, and any necessary travel expenses as 
follows:
    (1) The Office of Inspector General is authorized to charge 
reasonable fees to parties demanding documents or information. Such 
fees, calculated to reimburse the Office of Inspector General for the 
cost of responding to a demand, may include the costs of time expended 
by Office of Inspector General employees, including attorneys, to 
process and respond to the demand; attorney time for reviewing the 
demand and for legal work in connection with the demand; expenses 
generated by equipment used to search for, produce, and copy the 
requested information; and travel costs of the employee and the agency 
attorney or other representative, including lodging and per diem. Such 
fees shall be assessed at the rates and in the manner specified in 39 
CFR 265.9.
    (2) At the discretion of the Office of Inspector General where 
appropriate, fees and costs may be estimated and collected before 
testimony is given.
    (b) The provisions of Subpart B do not affect rights and procedures 
governing

[[Page 57375]]

public access to official documents pursuant to the Freedom of 
Information Act, 5 U.S.C. 552a.


Sec.  230.26  Do these rules affect the service of process requirements 
of the Federal Rules of Civil Procedure (28 U.S.C. Appendix)?

    No, the rules in subpart B in no way modify the requirements of the 
Federal Rules of Civil Procedure regarding service of process.


Sec.  230.27  Do these rules create any right or benefit enforceable by 
a party against the Postal Service?

    No, subpart B is intended to provide instructions to Office of 
Inspector General employees and members of the public. It does not 
create any right or benefit, substantive or procedural, enforceable by 
any party against the Office of Inspector General or the Postal 
Service.

Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 03-24619 Filed 10-2-03; 8:45 am]
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