[Federal Register Volume 73, Number 202 (Friday, October 17, 2008)]
[Proposed Rules]
[Pages 61772-61773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-24747]


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OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

32 CFR Part 1703


Regulations Governing the Production of Office of the Director of 
National Intelligence Information or Material in Proceedings Before 
Federal, State, Local or Other Government Entity of Competent 
Jurisdiction

AGENCY: Office of the Director of National Intelligence.

ACTION: Proposed regulation.

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SUMMARY: The ODNI is publishing this proposed regulation to invite 
public comment prior to final adoption of the regulation governing the 
procedures it will follow for the production of ODNI information or 
material in proceedings before federal, state, local or other 
government entity of competent jurisdiction.

DATES:  Submit comments on or before November 17, 2008.

ADDRESSES: You may submit comments by either of the following methods:
    Mail: Office of the Director of National Intelligence--Office of 
the General Counsel, Washington, DC 20511, Attention: Tricia Wellman.
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.

FOR FURTHER INFORMATION CONTACT: Tricia Wellman, (703) 275-2527.

SUPPLEMENTARY INFORMATION: The Office of the Director of National 
Intelligence (ODNI) was created by the Intelligence Reform and 
Terrorism Prevention Act of 2004, Public Law 108-458, 118 Stat.3638. 
The ODNI began operations on April 22, 2005, the day after the first 
Director of National Intelligence took office. Since that time the ODNI 
has been working to publish regulations for matters that may affect the 
public.
    This regulation outlines the procedures current and former ODNI 
employees must follow when they receive a demand for ODNI information 
or material in connection with proceedings before federal, state, local 
or other government entity of competent jurisdiction. These regulations 
are typically called Touhy regulations because of the Supreme Court's 
decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), 
in which the Court held that an agency employee could not be held in 
contempt for refusing to disclose agency records or information when 
following the instructions of his or her supervisor.

Lists of Subjects in 32 CFR Part 1703

    Courts, government employees.

    Title 32 of the Code of Federal Regulations is amended by adding 
Part 1703 to read as follows:

PART 1703--PRODUCTION OF ODNI INFORMATION OR MATERIAL IN 
PROCEEDINGS BEFORE FEDERAL, STATE, LOCAL OR OTHER GOVERNMENT ENTITY 
OF COMPETENT JURISDICTION

Sec.
1703.1 Scope and purpose.
1703.2 Definitions.
1703.3 General.
1703.4 Procedure for production.
1703.5 Interpretation.

    Authority: The Intelligence Reform and Terrorism Prevention Act 
of 2004, Public Law No. 108-458, 118 Stat. 3638 (2004); National 
Security Act of 1947, as amended, 50 U.S.C. sec. 401 et seq.; 
Executive Order 12333, as amended; and United States ex rel. Touhy 
v. Ragen, 340 U.S. 462 (1951).


Sec.  1703.1  Scope and purpose.

    This Part sets forth the policy and procedures with respect to the 
production or disclosure of material contained in the files of the 
ODNI, information relating to or based upon material contained in the 
files of the ODNI, and information acquired by any person while such 
person was an employee of the ODNI as part of the performance of that 
person's official duties or because of that person's association with 
the ODNI.


Sec.  1703.2  Definitions.

    The following definitions apply to this Part:
    Defenses: Any and all legal defenses, privileges or objections 
available to the ODNI in response to a demand.
    Demand:
    (1) Any subpoena, order or other legal summons issued by a federal, 
state, local or other government entity of competent jurisdiction with 
the authority to require a response on a particular matter or a request 
for appearance of an individual where a demand could issue.
    (2) Any request for production or disclosure which may result in 
the issuance of a subpoena, order, or other legal process to compel 
production or disclosure.
    DNI: The Director of National Intelligence.
    General Counsel: The ODNI's General Counsel, Acting General Counsel 
or Deputy General Counsel.
    ODNI: The Office of the Director of National Intelligence and all 
of its components, including, but not limited to, the Office of the 
National Counterintelligence Executive, the National Counterterrorism 
Center, the National Counterproliferation Center, the Program Manager 
for the Information Sharing Environment, and all national intelligence 
centers and program managers the DNI may establish.
    ODNI Employee: Any current or former employee, contractor, 
independent contractor, assignee or detailee to the ODNI.
    ODNI Information or Material: Information or material that is 
contained in ODNI files, related to or based upon material contained in 
ODNI files or acquired by any ODNI employee as part of that employee's 
official duties or because of that employee's association with the 
ODNI.
    OGC: The Office of the General Counsel of the ODNI.
    OGC Attorney: Any attorney in the OGC.
    Proceeding: Any matter before a court of law, administrative law 
judge, administrative tribunal or commission or other body that 
conducts legal or administrative proceedings, and includes all phases 
of the proceeding.
    Production or Produce: The disclosure of ODNI information or 
material in response to a demand.


Sec.  1703.3  General.

    (a) No ODNI employee shall respond to a demand for ODNI information 
or material without prior authorization as set forth in this Part.
    (b) This part is intended only to provide procedures for responding 
to

[[Page 61773]]

demands for production of documents or information, and does not create 
any right or benefit, substantive or procedural, enforceable by any 
party against the United States.


Sec.  1703.4  Procedure for production.

    (a) Whenever a demand is made for ODNI information or material, the 
employee who received the demand shall immediately notify OGC ((703) 
275-2527). The OGC and the ODNI employee shall then follow the 
procedures set forth in this section.
    (b) The OGC may assert any and all defenses before any search for 
potentially responsive ODNI information or material begins. Further, in 
its sole discretion the ODNI may decline to begin a search for 
potentially responsive ODNI information or material until a final and 
non-appealable disposition of any or all of the asserted defenses is 
made by the federal, state, local or government entity of competent 
jurisdiction. When the OGC determines that it is appropriate to search 
for potentially responsive ODNI information and material, the OGC will 
forward the demand to the appropriate ODNI offices or entities with 
responsibility for the ODNI information or material sought in the 
demand. Those ODNI offices or entities shall then search for and 
provide to the OGC all potentially responsive ODNI information and 
material. The OGC may then assert any and all defenses to the 
production of what it determines is responsive ODNI information or 
material.
    (c) In reaching a decision on whether to produce responsive ODNI 
information or material, or to object to the demand, the OGC shall 
consider whether:
    (1) Any relevant privileges are applicable;
    (2) The applicable rules of discovery or procedure require 
production;
    (3) Production would violate a statute, regulation, executive order 
or other provision of law;
    (4) Production would violate a non-disclosure agreement;
    (5) Production would be inconsistent with the DNI's responsibility 
to protect intelligence sources and methods, or reveal classified 
information or state secrets;
    (6) Production would violate a specific ODNI policy issuance or 
instruction; and
    (7) Production would unduly interfere with the orderly conduct of 
ODNI functions.
    (d) If oral or written testimony is sought by a demand in a case or 
matter in which the ODNI is not a party, a reasonably detailed 
description of the testimony sought in the form of an affidavit, or a 
written statement if that is not feasible, by the party seeking the 
testimony or its attorney must be furnished to the OGC.
    (e) The OGC shall notify the appropriate employees of all decisions 
regarding responses to demands and provide advice and counsel for the 
implementation of the decisions.
    (f) If response to a demand is required before a decision is made 
whether to provide responsive ODNI information or material, an OGC 
attorney will request that a Department of Justice attorney appear with 
the ODNI employee upon whom that demand has been made before the court 
or other competent authority and provide it with a copy of this 
regulation and inform the court or other authority as to the status of 
the demand. The court will be requested to stay the demand pending 
resolution by the ODNI. If the request for a stay is denied or there is 
a ruling that the demand must be complied with irrespective of 
instructions rendered in accordance with this Part, the employee upon 
whom the demand was made shall, if directed to do so by the General 
Counsel or its designee, respectfully decline to comply with the demand 
under the authority of United States ex rel. Touhy v. Ragen, 340 U.S. 
462 (1951), and this regulation.
    (g) ODNI officials may delegate in writing any authority given to 
them in this Part to subordinate officials.
    (h) Any individual or entity not an ODNI employee as defined in 
this Part who receives a demand for the production or disclosure of 
ODNI information or material acquired because of that person's or 
entity's association with the ODNI should notify the OGC ((703) 275-
2527) for guidance and assistance. In such cases the provisions of this 
regulation shall be applicable.


Sec.  1703.5  Interpretation.

    Any questions concerning interpretation of this Regulation shall be 
referred to the OGC for resolution.

    Dated: October 2, 2008.
Corin R. Stone,
Deputy General Counsel, Office of the Director of National 
Intelligence.
[FR Doc. E8-24747 Filed 10-16-08; 8:45 am]
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