[Federal Register Volume 73, Number 121 (Monday, June 23, 2008)]
[Proposed Rules]
[Pages 35354-35358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-14059]


 ========================================================================
 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. 73, No. 121 / Monday, June 23, 2008 / 
Proposed Rules  

[[Page 35354]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR PART 295

RIN 3206-AL22


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

AGENCY: U.S. Office of Personnel Management (OPM).

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Personnel Management 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 OPM employee 
to produce official records or provide testimony relating to official 
information, in connection with a legal proceeding in which OPM 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 August 22, 2008.

ADDRESSES: Send comments to R. Alan Miller, Associate General Counsel, 
U.S. Office of Personnel Management, Room 7353, 1900 E Street, NW., 
Washington, DC 20415 or by electronic mail at [email protected]. 
For e-mail messages, the subject line should include the following 
reference: Proposed Rule on Testimony by OPM Employees and Production 
of Official Records in Legal Proceedings.

FOR FURTHER INFORMATION CONTACT: R. Alan Miller, 202-606-1700.

SUPPLEMENTARY INFORMATION:

Background

    The U.S. Office of Personnel Management (OPM) occasionally receives 
subpoenas and requests for OPM employees to provide evidence in 
litigation in which OPM is not a party. Often these subpoenas and 
requests are for OPM records that are not available to the public under 
the Freedom of Information Act. Also, OPM sometimes receives subpoenas 
and requests for OPM employees to appear as witnesses in litigation in 
conjunction with a request for nonpublic records. Requesters have 
sought information, for example, on retirement records, pay issues, and 
other program matters, under OPM jurisdiction. Responding to such 
demands and requests can result in a significant disruption to OPM 
employees' work schedules. 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 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 sustained 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 U.S. 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 sustained the validity of the DOJ regulations, 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 OPM employees unless there 
is compliance with the OPM rule. The proposed rule identifies the 
factors that OPM will consider in making determinations in response to 
such requests and what information requesters must provide. The 
proposed rule also addresses when the request should be submitted, the 
time period for review, potential fees, and any restrictions that may 
be placed on the disclosure of records or the appearance of an OPM 
employee as a witness if a request is granted. 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 OPM 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 legal 
proceedings in which OPM is not a named party. It also applies to 
former and current OPM employees as well as OPM 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 OPM 
resources, minimize the possibility of involving OPM in issues 
unrelated to its responsibilities, promote uniformity in responding to 
such requests and subpoenas, prevent improper attempts to obtain 
testimony from OPM personnel as to issues of law, prevent improper 
attempts to use OPM personnel as expert witnesses against other Federal 
agencies, and maintain the impartiality of OPM in matters among private 
litigants. It also would serve OPM's interest in protecting sensitive, 
confidential, and privilege information and records that are generated 
in response to the requirements in the personnel laws and regulations.
    The proposed OPM rule is internal, and is essentially procedural, 
not substantive. It would neither create a right to obtain official 
records or the testimony of an OPM employee nor create any additional 
right or privilege not already available to OPM to deny any demand or 
request therefor.

[[Page 35355]]

However, failure to comply with the procedures in the proposed rule 
would be a basis for denying a demand or request submitted to OPM.

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 OPM on 
this proposed regulation, to be received on or before August 22, 2008. 
OPM will review all comments received and consider any modifications to 
this proposal which appear warranted.

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 OPM materials and information in litigation where OPM is 
not a party. Accordingly, OPM 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, OPM 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 OPM, 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. OPM expects the collection of information that 
is called for by the proposed regulation would involve fewer than ten 
persons each year.

List of Subjects in 5 CFR Part 295

    Administrative practice and procedures, Conflict of Interests, 
Courts, Government employees, Records, Subpoenas, Testimony.

U.S. Office of Personnel Management.
Linda M. Springer,
Director.

    Accordingly, for the reasons set forth in the preamble, the U.S. 
Office of Personnel Management proposes to add a new part 295 to 5 CFR 
to read as follows:

PART 295--TESTIMONY BY OPM EMPLOYEES AND PRODUCTION OF OFFICIAL 
RECORDS IN LEGAL PROCEEDINGS

Subpart A--General Provisions
Sec.
295.101 Scope and purpose.
295.102 Applicability.
295.103 Definitions.
Subpart B--Requests for Testimony and Production of Documents
295.201 General prohibition
295.202 Factors OPM will consider.
295.203 Filing requirements for demands or requests for documents or 
testimony.
295.204 Service of subpoenas or requests.
295.205 Processing demands or requests.
295.206 Final determination.
295.207 Restrictions that apply to testimony
295.208 Restrictions that apply to released records.
295.209 Procedure when a decision is not made prior to the time a 
response is required.
295.210 Procedure in the event of an adverse ruling.
Subpart C--Schedule of Fees
295.301 Fees.
Subpart D--Penalties
295.401 Penalties.

    Authority: 5 U.S.C. App. (Sec. 1103, Civil Service Reform Act of 
1978).

Subpart A--General Provisions


Sec.  295.101   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 U.S. Office 
of Personnel Management (OPM) 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) OPM intends these provisions to:
    (1) Promote economy and efficiency in its programs and operations;
    (2) Minimize the possibility of involving OPM in controversial 
issues not related to our functions;
    (3) Prevent the misuse of OPM employees as involuntary expert 
witnesses for private interests or as inappropriate expert witnesses as 
to the state of the law;
    (4) Maintain OPM's impartiality among private litigants where 
neither OPM nor any other Federal entity is a named party; and
    (5) Protect sensitive, confidential information and the 
deliberative processes of OPM.
    (c) In providing for these requirements, OPM does not waive the 
sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of OPM. 
It does not create any right or benefits, substantive or procedural, 
that a party may rely upon in any legal proceeding against the United 
States.


Sec.  295.102   Applicability.

    This part applies to demands and requests to employees of OPM in 
legal proceedings in which OPM is not a named party, for factual or 
expert testimony relating to official information or for production of 
official records or information. However, it does not apply to:
    (a) Demands upon or requests for a current OPM 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 OPM;
    (b) Demands upon or requests for a former OPM employee to testify 
as to matters in which the former employee was not directly or 
materially involved while at OPM;
    (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. 552(a); and
    (d) Congressional or Government Accountability Office (GAO) demands 
and requests for testimony or records.


Sec.  295.103   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 OPM employee that 
is issued in a legal proceeding.
    General Counsel means the General Counsel of OPM or a person to 
whom

[[Page 35356]]

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.
    OPM means the U.S. Office of Personnel Management.
    OPM employee or employee means:
    (1) Any current or former officer or employee of OPM;
    (2) Any other individual hired through contractual agreement by or 
on behalf of the OPM or who has performed or is performing services 
under such an agreement for OPM; and
    (3) Any individual who served or is serving in any consulting or 
advisory capacity to OPM, whether formal or informal.
    (4) Provided, that this definition does not include persons who are 
no longer employed by OPM and who are retained or hired as expert 
witnesses or who agree to testify about general matters available to 
the public, or matters with which they had no specific involvement or 
responsibility during their employment with OPM.
    Records or official records and information mean:
    (1) All documents and materials which are OPM agency records under 
the Freedom of Information Act, 5 U.S.C. 552;
    (2) All other documents and materials contained in OPM files; and
    (3) All other information or materials acquired by an OPM employee 
in the performance of his or her official duties or because of his or 
her official status.
    Request means any informal requests, 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.  295.201  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.  295.202  Factors OPM 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 an appropriate 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) OPM 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 OPM in performing its statutory duties or use OPM resources 
in a way that will interfere with the ability of OPM employees to do 
their regular work;
    (e) Allowing such testimony or production of records would be in 
the best interest of OPM 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 OPM appearing to favor one private 
litigant over another private litigant;
    (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;
    (o) The demand improperly seeks to compel an OPM employee to serve 
as an expert witness for a private interest;
    (p) The demand improperly seeks to compel an OPM employee to 
testify as to a matter of law;
    (q) The demand or request is sufficiently specific to be answered.


Sec.  295.203  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 OPM 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 OPM or an OPM employee 
before submitting a written request and receiving a final 
determination, OPM 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 OPM 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 OPM 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;
    (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 OPM employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding.
    (c) The Office of Personnel Management reserves the right to 
require additional information to complete your request where 
appropriate.

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    (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.  295.204  Service of subpoenas or request.

    Subpoenas or requests for official records or information or 
testimony must be served on the General Counsel, U.S. Office of 
Personnel Management, 1900 E Street, NW., Washington, DC 20415.


Sec.  295.205  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) OPM will process requests in the order in which they are 
received. Absent exigent or unusual circumstances, OPM 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 OPM or the United States or for other 
good cause.


Sec.  295.206  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 OPM employee.


Sec.  295.207  Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on 
the testimony of OPM 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) OPM 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 OPM or the United 
States; or
    (3) For a current OPM 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 OPM unless testimony is being given 
on behalf of the United States.


Sec.  295.208  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, OPM 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 OPM 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 OPM records, and 
they are not 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.  295.209  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. 295.206, 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.  295.210  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.  295.301  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 OPM.
    (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 OPM in its Freedom of Information Act regulations at 5 
CFR part 294.
    (c) Witness fees. Fees for attendance by a witness will include 
fees, expenses, 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.
    (d) Payment of fees. You must pay witness fees for current OPM 
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

[[Page 35358]]

Treasury of the United States. In the case of testimony by former OPM 
employees, you must pay applicable fees directly to the former employee 
in accordance with 28 U.S.C. 1821 or other applicable statutes.
    (e) Certification (authentication) of copies of records. The U.S. 
Office of Personnel Management 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 OPM 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.
    (f) 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.
    (g) De minimis fees. Fees will not be assessed if the total charge 
would be $10.00 or less.

Subpart D--Penalties


Sec.  295.401  Penalties.

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

[FR Doc. E8-14059 Filed 6-20-08; 8:45 am]
BILLING CODE 6325-48-P