[Federal Register Volume 72, Number 37 (Monday, February 26, 2007)]
[Rules and Regulations]
[Pages 8580-8584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-3140]



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Part IV





Department of Housing and Urban Development





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24 CFR Part 15



Public Access to HUD Records Under the Freedom of Information Act 
(FOIA) and Production of Material or Provision of Testimony by HUD 
Employees; Final Rule

  Federal Register / Vol. 72, No. 37 / Monday, February 26, 2007 / 
Rules and Regulations  

[[Page 8580]]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Part 15

[Docket No. FR-5015-F-02]
RIN 2501-AD18


Public Access to HUD Records Under the Freedom of Information Act 
(FOIA) and Production of Material or Provision of Testimony by HUD 
Employees

AGENCY: Office of the Secretary, HUD.

ACTION: Final rule.

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SUMMARY: This final rule clarifies and explains the various types of 
requests for HUD documents and testimony by HUD employees that are 
intended to be covered by the Department's document production and 
testimony approval regulations. This final rule describes the 
procedures to be followed by a party in making a demand for HUD 
documents and HUD testimony. The final rule also explains the standards 
to be followed by HUD in determining whether production of documents or 
testimony should be permitted and, if so, any conditions or 
restrictions that HUD should impose. This final rule follows 
publication of an August 15, 2006, proposed rule on which HUD received 
one public comment. After careful consideration of the issues raised by 
the commenter, HUD has decided to adopt the August 15, 2006, proposed 
rule with minor changes.

DATES: Effective Date: March 28, 2007.

FOR FURTHER INFORMATION CONTACT: Nancy Christopher, Associate General 
Counsel for Litigation, Office of Litigation, Office of General 
Counsel, Department of Housing and Urban Development, 451 Seventh 
Street, SW., Room 10258, Washington, DC 20410-5000; telephone (202) 
708-0300 (this is not a toll-free number). Persons with hearing or 
speech impairments may access this number via TTY by calling the toll-
free Federal Information Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

    HUD's regulations at 24 CFR part 15 describe the policies and 
procedures governing public access to HUD records under the Freedom of 
Information Act (FOIA) (5 U.S.C. 552) and the policies and procedures 
governing the production of material or provision of testimony by HUD 
employees. In Sec.  15.2, HUD employees are defined as all current or 
former employees who are not employees of the Office of the Inspector 
General. Currently, HUD's FOIA regulations governing the production of 
documents and provision of testimony by HUD employees are contained in 
subparts C and D, respectively. These regulations contain the 
procedures to be followed when a demand is served upon the Department 
or a HUD employee, and when employees are asked to provide testimony in 
legal proceedings.

II. The August 15, 2006, Proposed Rule

    On August 15, 2006, HUD published a proposed rule (71 FR 46986) to 
revise the regulations contained in subparts C and D of 24 CFR part 15. 
The proposed rule intended to revise and amend subparts C and D in 
order to clarify the various types of requests for HUD documents and 
testimony by HUD employees that are intended to be covered by the 
regulations in 24 CFR part 15. The proposed rule also described the 
procedures to be followed by a party in making a demand to HUD for 
documents or testimony. The proposed rule explained the standards that 
are to be followed by HUD in determining whether production or 
testimony should be permitted and, if so, any conditions or 
restrictions that should be imposed on the disclosure. In addition to 
these changes, the proposed rule outlined technical corrections in both 
subparts C and D.
    This final rule effects these revisions and amendments to subparts 
C and D. Further, the organization of 24 CFR part 15 is no longer based 
on a distinction between production of material and provision of 
testimony, but rather is based on the parties involved in the legal 
proceeding. Subpart C governs litigation between private parties, while 
subpart D governs litigation where one of the parties is the federal 
government. In order to improve clarity and highlight the processes to 
be followed, subparts C and D have been revised in their entirety.
    For more detailed information regarding the regulatory changes, 
please refer to the preamble of the August 15, 2006, proposed rule.

III. This Final Rule; Changes to the August 15, 2006, Proposed Rule

    This final rule follows publication of the August 15, 2006, 
proposed rule, and takes into consideration the public comment received 
on the proposed rule. After careful review of the public comment, HUD 
has made the following changes to the proposed rule:
    1. Inclusion of any other factors that HUD determines to be 
significant when making a demand. This final rule provides that any 
demand made to HUD or a HUD employee to produce any material or provide 
any testimony in a legal proceeding among private litigants must 
include specific information. HUD is making a minor revision to Sec.  
15.203, which lists the information that must be included in the 
demand, by adding a provision to require the inclusion of other factors 
that HUD considers significant. This additional provision does not 
change the obligation of parties when making a demand to include all 
information that would assist HUD in making a determination regarding 
the demand.
    2. Imposition of conditions and restrictions on a demand when the 
United States is a party to the legal proceeding. HUD is clarifying the 
regulations to explicitly state that the Secretary or General Counsel 
may impose conditions or restrictions on the production of any material 
or provision of any testimony when the United States is a party to the 
legal proceeding. The proposed rule set forth the standards to be 
considered in making a determination of what material and testimony 
would be provided in legal proceedings between private parties. This 
final rule now makes these standards applicable to legal proceedings in 
which the United States is a party.

IV. Discussion of Public Comments Received on the August 15, 2006, 
Proposed Rule

    The public comment period on the proposed rule closed on October 
16, 2006. In response to the proposed rule, HUD received one public 
comment, from the National Leased Housing Association. This section of 
the preamble presents a summary of the significant issues raised by the 
public commenter on the August 15, 2006, proposed rule, and HUD's 
responses to those issues.
    Comment: HUD does not have the authority to decline to comply with 
a court order to produce material or testimony. One commenter wrote 
that proposed revisions to Sec. Sec.  15.202 and 15.206 misstate the 
law, are contrary to FOIA, and would create a constitutional problem by 
elevating HUD above court authority. The commenter wrote that HUD's 
reliance on United States, ex. rel. Touhy v. Ragen is overstated and 
that the government cannot simply refuse to produce evidence or provide 
testimony. The commenter recommends that the proposed regulation be 
replaced with a requirement that information will not be produced 
without a properly issued subpoena to the properly designated federal 
official and that all information should be produced unless it is 
subject to a recognized right or privilege.

[[Page 8581]]

    HUD Response: HUD has not revised the rule in response to this 
comment. As proposed, when HUD is not a party to the legal proceeding, 
an employee is not to produce material or provide testimony unless the 
Secretary or General Counsel has granted prior approval. If a court or 
other authority declines to stay the demand until a determination is 
made by the Secretary or General Counsel, or if a production or 
provision of testimony is required by a court or other authority in 
spite of a determination not to provide the requested material, at the 
direction of legal counsel a HUD employee is to respectfully decline to 
comply with the demand. HUD, like any other entity that is served with 
a demand, may take all appropriate steps to limit the scope of or 
obtain the withdrawal of a demand.
    While the regulations governing the production of material and the 
provision of testimony are included within the same part as the 
regulations implementing FOIA, these demands are not FOIA requests and 
are not treated as such. The purpose of FOIA is to provide the public 
with access to information regarding federal agencies in recognition of 
the importance of participation by an informed citizenry in the 
effective functioning of the federal government. Demands for the 
production of material or the provision of testimony in the context of 
a legal proceeding between private litigants do not affect a greater 
understanding of federal agencies for the public and, therefore, are 
not afforded the protections contained in FOIA's disclosure 
requirements.
    Further, HUD's reliance on United States, ex. rel. Touhy v. Ragen 
(340 U.S. 462 (1951)) (Touhy) is not inappropriate. The court in Touhy 
recognized that the information contained in the files of a government 
department and the possibilities of harm from unrestricted disclosure 
in court necessitates a centralized determination as to whether a 
demand will be complied with or challenged. With regard to the issue of 
an executive agency treading on the domain of the judicial branch, the 
court in Touhy, reiterating a holding from an earlier court case, 
stated that it is lawful for a Secretary to reserve for his/her 
determination matters of this nature.
    Accordingly, because the proposed regulation comports with the law 
and is consistent with federal agency practice, HUD has not revised it.

V. Findings and Certifications

Paperwork Reduction Act

    The information collection requirements contained in this final 
rule are under review by OMB under the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501-3520). Approval and the assignment of an OMB control 
number is pending. In accordance with the Paperwork Reduction Act, HUD 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless the collection displays a currently 
valid OMB control number.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) 
generally requires an agency to conduct a regulatory flexibility 
analysis of any rule subject to notice and subject to comment 
rulemaking requirements, unless the agency certifies that the rule will 
not have a significant economic impact on a substantial number of small 
entities. The regulatory amendments that are made by this final rule 
are procedural. Accordingly, the rule would not have any impact on the 
substantive rights or duties of small entities requesting HUD records 
under the Freedom of Information Act. Furthermore, because the fees 
charged under this rule are limited by FOIA to direct costs of 
searching for, reviewing, and duplicating the records processed for 
requesters, the fees are not economically significant.
    Accordingly, the undersigned certifies that this rule will not have 
a significant economic impact on a substantial number of small 
entities.

Environmental Impact

    This final rule does not direct, provide for assistance, or loan 
and mortgage insurance for, or otherwise govern or regulate, real 
property acquisition, disposition, leasing, rehabilitation, alteration, 
demolition, or new construction, or establish, revise, or provide for 
standards for construction or construction materials, manufactured 
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this 
proposed rule is categorically excluded from the requirements of the 
National Environmental Policy Act (42 U.S.C. 4321 et seq.).

Executive Order 13132, Federalism

    Executive Order 13132 (entitled ``Federalism'') prohibits an agency 
from publishing any rule that has federalism implications if the rule 
either imposes substantial direct compliance costs on state and local 
governments and is not required by statute, or the rule preempts state 
law, unless the agency meets the consultation and funding requirements 
of section 6 of the Executive Order. This final rule does not have 
federalism implications and does not impose substantial direct 
compliance costs on state and local governments or preempt state law 
within the meaning of the Executive Order.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538) (UMRA) establishes requirements for federal agencies to 
assess the effects of their regulatory actions on State, local, and 
tribal governments, and on the private sector. This final rule does not 
impose any federal mandates on any State, local, or tribal government, 
or on the private sector, within the meaning of UMRA.

List of Subjects in 24 CFR Part 15

    Classified information, Courts, Freedom of information, Government 
employees, Reporting and recordkeeping requirements.

0
Accordingly, for the reasons discussed in the preamble, HUD amends 24 
CFR part 15 to read as follows:

PART 15--PUBLIC ACCESS TO HUD RECORDS UNDER THE FREEDOM OF 
INFORMATION ACT AND TESTIMONY AND PRODUCTION OF INFORMATION BY HUD 
EMPLOYEES

0
1. The authority citation for part 15 continues to read as follows:

    Authority: 42 U.S.C. 3535(d).


0
2. Revise Sec.  15.1(b) and (c) to read as follows:


Sec.  15.1  What is the purpose of this part?

* * * * *
    (b) Subpart C of this part. Subpart C of this part describes the 
procedures to be followed and standards to be applied in processing 
demands for the production of material or provision of testimony in 
legal proceedings among private litigants.
    (c) Subpart D of this part. Subpart D of this part describes the 
procedures to be followed and standards to be applied in processing 
demands for the production of material or provision of testimony in 
legal proceedings in which the United States is a party.
* * * * *

0
3. In Sec.  15.2(b) add, in alphabetical order, definitions of the 
terms ``Demand,'' ``Good cause,'' ``Material,'' ``Production,'' 
``Testimony,'' and ``United States'' to read as follows:


Sec.  15.2  Definitions.

* * * * *
    Demand means a subpoena, order, or other demand of a court or other 
authority that is issued in a legal

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proceeding and any accompanying submissions.
* * * * *
    Good cause means necessary to prevent a miscarriage of justice or 
to promote a significant interest of the Department.
* * * * *
    Material means either documents or information contained in, or 
relating to contents of, the files of the Department or documents or 
information acquired by any person while such person was an employee of 
the Department as a part of the performance of his or her official 
duties or because of his or her official status.
* * * * *
    Production refers to the provision of material by any means other 
than through the provision of oral testimony.
* * * * *
    Testimony refers to any oral or written statements made in 
litigation under oath or penalty of perjury.
* * * * *
    United States refers to the Federal Government of the United States 
(including the Department), the Secretary, and any employees of the 
Department in their official capacities.

0
4. Revise subpart C to read as follows:
Subpart C--Production of Material or Provision of Testimony in Response 
to Demands in Legal Proceedings Among Private Litigants
Sec.
15.201 Purpose and scope.
15.202 Production of material or provision of testimony prohibited 
unless approved by the Secretary or General Counsel.
15.203 Making a demand for production of material or provision of 
testimony.
15.204 Consideration of demands for production of material or 
provision of testimony.
15.205 Method of production of material or provision of testimony.
15.206 Procedure in the event of an adverse ruling regarding 
production of material or provision of testimony.

Subpart C--Production of Material or Provision of Testimony in 
Response to Demands in Legal Proceedings Among Private Litigants


Sec.  15.201  Purpose and scope.

    (a) This subpart contains the regulations of the Department 
concerning the procedures to be followed and standards to be applied 
when demand is issued in a legal proceeding among private litigants for 
the production or disclosure of any material, whether provided through 
production of material or provision of testimony.
    (b) This subpart does not apply to demands, which are covered by 
part 2004 of this title, for production of material in the files of the 
Office of Inspector General or provision of testimony by employees 
within the Office of Inspector General.


Sec.  15.202  Production of material or provision of testimony 
prohibited unless approved by the Secretary or General Counsel.

    Neither the Department nor any employee of the Department shall 
comply with any demand for production of material or provision of 
testimony in a legal proceeding among private litigants, unless the 
prior approval of the Secretary or General Counsel has been obtained in 
accordance with this subpart. This rule does not apply to any legal 
proceeding in which an employee may be called to participate, either 
through the production of documents or the provision of testimony, not 
on official time, as to facts or opinions that are in no way related to 
material described in Sec.  15.201.


Sec.  15.203  Making a demand for production of material or provision 
of testimony.

    (a) Any demand made to the Department or an employee of the 
Department to produce any material or provide any testimony in a legal 
proceeding among private litigants must:
    (1) Be submitted in writing to the Department or employee of the 
Department, with a copy to the Associate General Counsel for 
Litigation, no later than 30 days before the date the material or 
testimony is required;
    (2) State, with particularity, the material or testimony sought;
    (3) State whether expert or opinion testimony will be sought from 
the employee;
    (4) State whether the production of such material or provision of 
such testimony could reveal classified, confidential, or privileged 
material;
    (5) Summarize the need for and relevance of the material or 
testimony sought in the legal proceeding;
    (6) State whether the material or testimony is available from any 
other source and, if so, state all such other sources;
    (7) State why no document[s], or declaration or affidavit, could be 
used in lieu of oral testimony that is being sought;
    (8) Estimate the amount of time the employee will need in order to 
prepare for, travel to, and attend the legal proceeding, as 
appropriate;
    (9) State why the production of the material or provision of the 
testimony is appropriate under the rules of procedure governing the 
legal proceeding for which it is sought (e.g., not unduly burdensome or 
otherwise inappropriate under the relevant rules governing discovery);
    (10) Describe how producing such material or providing such 
testimony would affect the interests of the United States; and
    (11) Include any other factors that the agency determines to be 
significant.
    (b) Whenever a demand is made upon the Department or an employee of 
the Department for the production of material or provision of 
testimony, the Associate General Counsel for Litigation or designee 
shall be notified immediately. The Associate General Counsel for 
Litigation or designee shall maintain a record of all demands served 
upon the Department and refer the demand to the appropriate designee 
for processing and determination.


Sec.  15.204  Consideration of demands for production of material or 
provision of testimony.

    (a) The Secretary or General Counsel shall determine what material 
is to be produced or what testimony is to be provided, based upon the 
following standards:
    (1) Expert or opinion material or testimony. In any legal 
proceeding among private litigants, no employee of the Department may 
produce material or provide testimony as described in Sec.  15.201 that 
is of an expert or opinion nature, unless specifically authorized by 
the Secretary or the General Counsel for good cause shown.
    (2) Factual material or testimony. In any legal proceeding among 
private litigants, no employee of the Department may produce material 
or provide testimony as described in Sec.  15.201 unless specifically 
authorized by the Secretary or General Counsel. Such authorization may 
be granted if the Secretary or General Counsel determines that it is 
warranted based upon an assessment of whether:
    (i) Producing such material or providing such testimony would 
violate a statute or regulation;
    (ii) Producing such material or providing such testimony would 
reveal classified, confidential, or privileged material;
    (iii) Such material or testimony is relevant to the legal 
proceeding;
    (iv) Such material or testimony can be obtained from any other 
source;
    (v) One or more documents, or a declaration or affidavit, could 
reasonably be provided in lieu of oral testimony;

[[Page 8583]]

    (vi) The amount of employees' time necessary to comply with the 
demand is reasonable;
    (vii) Production of the material or provision of the testimony is 
appropriate under the rules of procedure governing the legal proceeding 
for which it is sought (e.g., unduly burdensome or otherwise 
inappropriate under the relevant rules governing discovery); and
    (viii) Producing such material or providing such testimony would 
impede a significant interest of the United States.
    (b) Once a determination has been made, the requester will be 
notified of the determination, the reasons for the grant or denial of 
the demand, and any conditions that have been imposed upon the 
production of the material or provision of the testimony demanded.
    (c) The Secretary or General Counsel may impose conditions or 
restrictions on the production of any material or provision of any 
testimony. Such conditions or restrictions may include the following:
    (1) A requirement that the parties to the legal proceeding obtain a 
protective order or execute a confidentiality agreement, the terms of 
which must be acceptable to the Secretary or General Counsel, to limit 
access to, and limit any further disclosure of, material or testimony;
    (2) A requirement that the requester accept examination of 
documentary material on HUD premises in lieu of production of copies;
    (3) A limitation on the subject areas of testimony permitted;
    (4) A requirement that testimony of a HUD employee be provided by 
deposition at a location prescribed by HUD or by written declaration or 
affidavit;
    (5) A requirement that the parties to the legal proceeding agree 
that a transcript of the permitted testimony be kept under seal or will 
only be used or made available in the particular legal proceeding for 
which testimony was demanded;
    (6) A requirement that the requester provide the Department with a 
copy of a transcript of the employee's testimony free of charge; or
    (7) Any other condition or restriction deemed to be in the best 
interests of the United States.
    (d) The determination made with respect to the production of 
material or provision of testimony is within the sole discretion of the 
Secretary or General Counsel and shall constitute final agency action 
from which no administrative appeal is available.


Sec.  15.205  Method of production of material or provision of 
testimony.

    (a) Where the Secretary or General Counsel has authorized the 
production of material or provision of testimony, the Department shall 
produce such material or provide such testimony in accordance with this 
section and any conditions imposed upon production of material or 
provision of testimony pursuant to Sec.  15.204.
    (b) In any legal proceeding where the Secretary or General Counsel 
has authorized the production of documents, the Department shall 
respond by producing authenticated copies of the documents, to which 
the seal of the Department has been affixed, in accordance with its 
authentication procedures. That authentication shall be evidence that 
the documents are true copies of documents in the Department's files 
and be sufficient for the purposes of Rule 902 of the Federal Rules of 
Evidence.
    (c) If response to the demand is required before the determination 
from the Secretary or General Counsel is received, the U.S. Attorney, 
or such other attorney as may be designated for the purpose, will 
appear or make such filings as are necessary to furnish the court or 
other authority with a copy of the regulations contained in this 
subpart and inform the court or other authority that the demand has 
been, or is being, as the case may be, referred for prompt 
consideration. The court or other authority shall be requested 
respectfully to stay the demand pending receipt of the requested 
determination from the Secretary or General Counsel.


Sec.  15.206  Procedure in the event of an adverse ruling regarding 
production of material or provision of testimony.

    If the court or other authority declines to stay the demand made in 
accordance with Sec.  15.205 pending receipt of the determination from 
the Secretary or General Counsel, or if the court or other authority 
rules that the demand must be complied with irrespective of the 
determination by the Secretary or General Counsel not to produce the 
material or provide the testimony demanded or to produce subject to 
conditions or restrictions, the employee upon whom the demand has been 
made shall, if so directed by an attorney representing the Department, 
respectfully decline to comply with the demand. (United States ex rel. 
Touhy v. Ragen, 340 U.S. 462 (1951)).

0
5. Revise subpart D to read as follows:
Subpart D--Production of Material or Provision of Testimony in Response 
to Demands in Legal Proceedings in Which the United States Is a Party
Sec.
15.301 Purpose and scope.
15.302 Procedure for review of demands for production of material or 
provision of testimony in any legal proceeding in which the United 
States is a party.
15.303 Consideration of demands for production of material or 
provision of testimony.
15.304 Method of production of material or provision of testimony.

Subpart D--Production of Material or Provision of Testimony in 
Response to Demands in Legal Proceedings in Which the United States 
Is a Party


Sec.  15.301  Purpose and scope.

    (a) This subpart contains the regulations of the Department 
concerning the procedures to be followed and standards to be applied 
when demand is issued in a legal proceeding in which the United States 
is a party for the production or disclosure of any material, whether 
provided through production of material or provision of testimony.
    (b) This subpart does not apply to demands, which are covered by 
part 2004 of this title, for production of material in the files of the 
Office of Inspector General or provision of testimony by employees 
within the Office of Inspector General.


Sec.  15.302  Procedure for review of demands for production of 
material or provision of testimony in any legal proceeding in which the 
United States is a party.

    All demands for production of material or provision of testimony in 
any legal proceeding in which the United States is a party shall be 
directed to the agency through the attorney representing the United 
States in the proceeding. Whenever the Department or an employee of the 
Department is notified by the attorney representing the United States 
of the demand for the production of material or provision of testimony 
in any legal proceeding in which the United States is a party, the 
Associate General Counsel for Litigation or designee shall be notified 
immediately.


Sec.  15.303  Consideration of demands for production of material or 
provision of testimony.

    (a) The Secretary or General Counsel shall consult with the 
attorney representing the United States as to the response to the 
demand for production of material or to the provision of testimony.

[[Page 8584]]

    (b) An employee of the Department may not testify as an expert or 
opinion witness unless specifically authorized by the Secretary or the 
General Counsel for good cause shown.
    (c) The Secretary or General Counsel may impose conditions or 
restrictions on the production of any material or provision of any 
testimony, as set forth in section 15.204(c).


Sec.  15.304  Method of production of material or provision of 
testimony.

    Where the Secretary or General Counsel has authorized the 
production of material or provision of testimony, the Associate General 
Counsel for Litigation or designee shall arrange for the production of 
any authorized material or provision of any authorized testimony 
through the attorney representing the United States. Where the 
Secretary or General Counsel has authorized the production of 
documents, the Department may respond by producing authenticated copies 
of the documents, to which the seal of the Department has been affixed 
in accordance with its authentication procedures. That authentication 
shall be evidence that the documents are true copies of documents in 
the Department's files and be sufficient for the purposes of Rule 902 
of the Federal Rules of Evidence.

    Dated: February 16, 2007.
Roy A. Bernardi,
Deputy Secretary.
[FR Doc. E7-3140 Filed 2-23-07; 8:45 am]
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