[Federal Register Volume 73, Number 249 (Monday, December 29, 2008)]
[Rules and Regulations]
[Pages 79392-79396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30885]


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NATIONAL ARCHIVES AND RECORDS ADMINISTRATION

36 CFR Parts 1250, 1251, and 1256

[NARA-07-0006]
RIN 3095-AB32


Testimony by NARA Employees Relating to Agency Information and 
Production of Records in Legal Proceedings

AGENCY: National Archives and Records Administration.

ACTION: Final rule.

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SUMMARY: The National Archives and Records Administration (NARA) is 
revising its regulations relating to demands for records or testimony 
in legal proceedings. The rule is intended to facilitate access to 
records in NARA's custody, centralize agency decision making in 
response to demands for records or testimony, minimize the disruption 
of official duties in complying with demands, maintain agency control 
over the release of agency information, and protect the interests of 
the United States. In addition, this rule consolidates existing 
regulations and applies to demands in legal proceedings where the 
United States is a party and to demands in legal proceedings where the 
United States is not a party. The rule affects parties to lawsuits and 
their counsel.

DATES: Effective Date: January 28, 2009.

FOR FURTHER INFORMATION CONTACT: Laura McCarthy at (301) 837-3023 or 
via fax number 301-837-0319.

SUPPLEMENTARY INFORMATION: On November 16, 2007, NARA published a 
proposed rule (72 FR 64558) for a 60-day public comment period on new 
regulations containing NARA's policy and procedures in response to 
demands for testimony or records in legal proceedings.
    We notified several listservs and researcher organizations about 
the proposed rule and its availability on regulations.gov. We also 
posted a notice about the rule on our Web site, http://www.archives.gov. We received no public comments. We are adopting the 
proposed rule as a final rule after making a number of minor changes to 
clarify the rule.

[[Page 79393]]

    In particular, in several instances we made minor word changes to 
clarify the meaning of a particular sentence or paragraph: we clarified 
the requirements of the Privacy Act, 5 U.S.C. 552a, if records sought 
are covered by the Privacy Act; specified that the demanding party is 
responsible for complying with all service requirements; and clarified 
the process for submitting witness fees and fees for the production of 
records.
    This final rule contains information collection activities that are 
subject to review and approval by the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act of 1995. These information 
collection requirements, contained in Sec.  1251.10, have been approved 
by OMB under the control number 3095-0038 with a current expiration 
date of May 31, 2011.
    This rule is not a significant regulatory action for the purposes 
of Executive Order 12866 and has not been reviewed by the Office of 
Management and Budget. As required by the Regulatory Flexibility Act, I 
certify that this rule will not have a significant impact on a 
substantial number of small entities because it affects individuals. 
This regulation does not have any federalism implications. This rule is 
not a major rule as defined in 5 U.S.C. chapter 8, Congressional Review 
of Agency Rulemaking.

List of Subjects

36 CFR Part 1250

    Confidential business information, Freedom of information.

36 CFR Part 1251

    Administrative practice and procedure.

36 CFR Part 1256

    Archives and records, Copyright, Reporting and recordkeeping 
requirements.

0
For the reasons set forth in the preamble, NARA amends Subchapter C of 
36 CFR Chapter XII as follows:

PART 1250--PUBLIC AVAILABILITY AND USE OF FEDERAL RECORDS

0
1. The authority citation for part 1250 is revised to read as follows:

    Authority: 44 U.S.C. 2104(a), 2204; 5 U.S.C. 552; E.O. 12600, 52 
FR 23781, 3 CFR, 1987 Comp., p. 235.


Sec.  1250.84   [Removed]

0
2. Remove Sec.  1250.84.

0
3. Add new part 1251 to read as follows:

PART 1251--TESTIMONY BY NARA EMPLOYEES RELATING TO AGENCY 
INFORMATION AND PRODUCTION OF RECORDS IN LEGAL PROCEEDINGS

Sec.
1251.1 What is the purpose of this part?
1251.2 To what demands does this part apply?
1251.3 What definitions apply to this part?
1251.4 May employees provide records or give testimony in response 
to a demand without authorization?
1251.6 How does the General Counsel determine whether to comply with 
a demand for records or testimony?
1251.8 Who is authorized to accept service of a subpoena demanding 
the production of records or testimony?
1251.10 What are the filing requirements for a demand for documents 
or testimony?
1251.12 How does NARA process your demand?
1251.14 Who makes the final determination on compliance with demands 
for records or testimony?
1251.16 Are there any restrictions that apply to testimony?
1251.18 Are there any restrictions that apply to the production of 
records?
1251.20 Are there any fees associated with providing records or 
testimony?
1251.22 Are there penalties for providing records or testimony in 
violation of this part?

    Authority: 44 U.S.C. 2104; 44 U.S.C. 2108; 44 U.S.C. 2109; 44 
U.S.C. 2111 note; 44 U.S.C. 2112; 44 U.S.C. 2116; 44 U.S.C. ch. 22; 
44 U.S.C. 3103.


Sec.  1251.1   What is the purpose of this part?

    (a) This part provides the policies and procedures to follow when 
submitting a demand to an employee of the National Archives and Records 
Administration (NARA) to produce records or provide testimony relating 
to agency information in connection with a legal proceeding. You must 
comply with these requirements when you request the release or 
disclosure of records or agency information.
    (b) The National Archives and Records Administration intends these 
provisions to:
    (1) Promote economy and efficiency in its programs and operations;
    (2) Minimize NARA's role in controversial issues not related to its 
mission;
    (3) Maintain NARA's impartiality among private litigants when NARA 
is not a named party; and
    (4) Protect sensitive, confidential information and the 
deliberative processes of NARA.
    (c) In providing for these requirements, NARA does not waive the 
sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of 
NARA. It does not create any right or benefit, substantive or 
procedural, that a party may rely upon in any legal proceeding against 
the United States.


Sec.  1251.2   To what demands does this part apply?

    This part applies to demands to NARA employees for factual, 
opinion, or expert testimony relating to agency information or for 
production of records in legal proceedings whether or not NARA is a 
named party. However, it does not apply to:
    (a) Demands upon or requests for a NARA employee to testify as to 
facts or events that are unrelated to his or her official duties and 
that are unrelated to the functions of NARA;
    (b) Demands upon or requests for a former NARA employee to testify 
as to matters in which the former employee was not directly or 
materially involved while at NARA;
    (c) Requests for the release of, or access to, records under the 
Freedom of Information Act, 5 U.S.C. 552, as amended; the Privacy Act, 
5 U.S.C. 552a; the Federal Records Act, 44 U.S.C. chs. 21, 29, 31, 33; 
the Presidential Records Act, 44 U.S.C. ch. 22; or the Presidential 
Recordings and Materials Preservation Act, 44 U.S.C. 2111 note;
    (d) Demands for records or testimony in matters before the Equal 
Employment Opportunity Commission or the Merit Systems Protection 
Board; and
    (e) Congressional demands and requests for testimony or records.


Sec.  1251.3   What definitions apply to this part?

    The following definitions apply to this part:
    Court of competent jurisdiction means, for purposes of this part, 
the judge or some other competent entity, as authorized by statute or 
regulation or other lawful means, and not simply by an attorney or 
court clerk, must sign a demand for records the disclosure of which is 
constrained by the Privacy Act, 5 U.S.C. 552a because section (b)(11) 
of the Act requires appropriate authorization of a court of competent 
jurisdiction. See Doe v. Digenova, 779 F.2d 74 (D.C. Cir. 1985); Stiles 
v. Atlanta Gas Light Company, 453 F. Supp. 798 (N.D. Ga. 1978).
    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 in a legal proceeding, or for the appearance and testimony 
of a NARA employee in a legal proceeding.
    General Counsel means the General Counsel of NARA or a person to 
whom the General Counsel has delegated

[[Page 79394]]

authority under this part. General Counsel also means the Inspector 
General of NARA (or a person to whom the Inspector General has 
delegated authority under this part) when a demand is made for records 
of NARA's Office of the Inspector General, or for the testimony of an 
employee of NARA's Office of the Inspector General.
    Legal proceeding means any matter before a court of law, 
administrative board or tribunal, commission, administrative law judge, 
hearing officer, legislative body, or other body that conducts a legal 
or administrative proceeding. Legal proceeding includes all phases of 
litigation.
    NARA means the National Archives and Records Administration.
    NARA employee or employee means:
    (1) Any current or former officer or employee of NARA, except that 
this definition does not include former NARA employees who are retained 
or hired as expert witnesses concerning, or who agree to testify about, 
matters available to the public or matters with which they had no 
specific involvement or responsibility during their employment with 
NARA;
    (2) Any other individual hired through contractual agreement by or 
on behalf of NARA or who has performed or is performing services under 
such an agreement for NARA;
    (3) Any individual who served or is serving in any consulting or 
advisory capacity to NARA, whether formal or informal; and
    (4) Any individual who served or is serving in any volunteer or 
internship capacity to NARA.
    Records or agency information means:
    (1) Archival records, which are permanently valuable records of the 
United States Government that have been transferred to the legal 
custody of the Archivist of the United States;
    (2) Operational records, which are those records that NARA creates 
or receives in carrying out its mission and responsibilities as an 
executive branch agency. This does not include archival records as 
defined above in this section;
    (3) All documents and materials which are NARA agency records under 
the Freedom of Information Act, 5 U.S.C. 552, as amended;
    (4) Presidential records as defined in 44 U.S.C. 2201; historical 
materials as defined in 44 U.S.C. 2101; records as defined in 44 U.S.C. 
2107 and 44 U.S.C. 3301;
    (5) All other documents and materials contained in NARA files; and
    (6) All other information or materials acquired by a NARA employee 
in the performance of his or her official duties or because of his or 
her official status.
    Testimony means any written or oral statements, including 
depositions, answers to interrogatories, affidavits, declarations, 
interviews, and statements made by an individual in connection with a 
legal proceeding.


Sec.  1251.4   May employees provide records or give testimony in 
response to a demand without authorization?

    No, except as otherwise permitted by Sec.  1251.14 of this part, no 
employee may produce records and information or provide any testimony 
relating to agency information in response to a demand, or other legal 
request, without the prior, written approval of the General Counsel.


Sec.  1251.6   How does the General Counsel determine whether to comply 
with a demand for records or testimony?

    The General Counsel may consider the following factors in 
determining whether or not to grant an employee permission to testify 
on matters relating to agency information, or permission to produce 
records in response to a demand:
    (a) NARA's compliance with the demand is required by federal law, 
regulation or rule, or is otherwise permitted by this part;
    (b) The purposes of this part are met;
    (c) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (d) NARA has an interest in the decision that may be rendered in 
the legal proceeding;
    (e) Allowing such testimony or production of records would assist 
or hinder NARA in performing its statutory duties;
    (f) Allowing such testimony or production of records would involve 
a substantial use of NARA resources;
    (g) Responding to the demand would interfere with the ability of 
NARA employees to do their work;
    (h) Allowing such testimony or production of records would be in 
the best interest of NARA or the United States;
    (i) The records or testimony can be obtained from the publicly 
available records of NARA or from other sources;
    (j) The demand 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 arose;
    (k) Disclosure would violate a statute, Executive Order or 
regulation;
    (l) Disclosure would reveal confidential, sensitive, or privileged 
information, trade secrets or similar, confidential commercial or 
financial information, otherwise protected information, or information 
which would otherwise be inappropriate for release;
    (m) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceeding, or compromise constitutional 
rights;
    (n) Disclosure would result in NARA appearing to favor one litigant 
over another;
    (o) Disclosure relates to documents that were created by another 
agency;
    (p) A substantial Government interest is implicated;
    (q) The demand is within the authority of the party making it;
    (r) The demand is sufficiently specific to be answered; and
    (s) Other factors, as appropriate.


Sec.  1251.8   Who is authorized to accept service of a subpoena 
demanding the production of records or testimony?

    (a) Demands for testimony, except those involving an employee of 
NARA's Office of the Inspector General, must be addressed to, and 
served on, the General Counsel, National Archives and Records 
Administration, Suite 3110, 8601 Adelphi Road, College Park, MD 20740-
6001.
    (b) Demands for the testimony of an employee of NARA's Office of 
the Inspector General must be addressed to, and served on, the 
Inspector General, National Archives and Records Administration, Suite 
1300, 8601 Adelphi Road, College Park, MD 20740-6001.
    (c) Demands for the production of NARA operational records, except 
those of the Office of the Inspector General, must be addressed to, and 
served on, the General Counsel.
    (d) Demands for records of the Inspector General must be addressed 
to, and served on, the Inspector General.
    (e) Demands for the production of records stored in a Federal 
Records Center (FRC), including the National Personnel Records Center, 
must be addressed to, and served on, the director of the FRC where the 
records are stored. NARA honors the demand to the extent required by 
law, if the agency having legal title to the records has not imposed 
any restrictions. If the agency has imposed restrictions, NARA notifies 
the authority issuing the demand that NARA abides by the agency-imposed 
restrictions and refers the authority to the agency for further action.
    (f) Demands for the production of materials designated as Federal 
archival records, Presidential records or donated historical materials 
administered by NARA must be addressed to, and served

[[Page 79395]]

on either: the Assistant Archivist for Records Services--Washington, DC 
(for records located in Headquarters); Director of Archival Operations 
(for records located in the regions); or the appropriate Presidential 
Library Director.
    (g) For matters in which the United States is a party, the 
Department of Justice should contact the General Counsel instead of 
submitting a demand for records or testimony on its own or another 
agency's behalf.
    (h) The demanding party is responsible for complying with all 
service requirements, including any additional requirements contained 
in the Federal Rules of Civil Procedure or other statutory or 
regulatory authority.
    (i) Contact information for each NARA facility may be found at 36 
CFR part 1253.


Sec.  1251.10   What are the filing requirements for a demand for 
documents or testimony?

    You must comply with the following requirements, as appropriate, 
whenever you issue a demand to a NARA employee for records, agency 
information or testimony:
    (a) Your demand must be in writing and must be served on the 
appropriate party as identified in Sec.  1251.8.
    (b) Demands for production of records that are governed by the 
Privacy Act require authorization of a court of competent jurisdiction 
as defined in Sec.  1251.3.
    (c) Your written demand (other than a demand pursuant to the 
Federal Rules of Civil Procedure in a case in which NARA is a party, in 
which case you must comply with the requirements of that rule) 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 NARA 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 a NARA 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 instead of testimony;
    (7) A description of all previous 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 may require with each NARA employee for time spent by the 
employee in connection with the request for testimony.
    (d) NARA reserves the right to require additional information to 
process your demand.
    (e) Your demand (other than a demand pursuant to the Federal Rules 
of Civil Procedure in a case in which NARA is a party, in which case 
you must comply with the requirements of that rule) should be submitted 
at least 45 days before the date that records or testimony is required. 
Demands 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.
    (f) 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 demand.
    (g) The information collection contained in this section has been 
approved by the Office of Management and Budget under the Paperwork 
Reduction Act under the control number 3095-0038.


Sec.  1251.12   How does NARA process your demand?

    (a) After service of a demand for production of records or for 
testimony, an appropriate NARA official reviews the demand and, in 
accordance with the provisions of this, determines whether, or under 
what conditions, to produce records or authorize the employee to 
testify on matters relating to agency information.
    (b) NARA processes demands in the order in which we receive them. 
NARA will not complete and return certifications, affidavits, or 
similar documents submitted with a demand for records, but if requested 
will certify records in accordance with NARA's published fee schedule 
at 36 CFR part 1258. Absent exigent or unusual circumstances, NARA 
responds within 45 days from the date of receipt. The time for response 
depends upon the scope of the demand.
    (c) The General Counsel may grant a waiver of any procedure 
described by this part where a waiver is considered necessary to 
promote a significant interest of NARA or the United States or for 
other good cause.


Sec.  1251.14   Who makes the final determination on compliance with 
demands for records or testimony?

    The General Counsel makes the final determination on demands to 
employees for testimony. The appropriate NARA official authorized to 
accept service, as described in Sec.  1251.8, makes the final 
determination on demands for the production of records. The NARA 
official notifies the requester and, as necessary, the court or other 
authority of the final determination and any conditions that may be 
imposed on the release of records or information, or on the testimony 
of a NARA employee. If the NARA official deems it appropriate not to 
comply with the demand, the official communicates the reasons for the 
noncompliance as appropriate.


Sec.  1251.16   Are there any restrictions that apply to testimony?

    (a) The General Counsel may impose conditions or restrictions on 
the testimony of NARA 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) NARA may offer the employee's written declaration instead 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 
must not:
    (1) Disclose confidential or privileged information; or
    (2) For a current NARA 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 NARA unless testimony is being 
given on behalf of the United States.

[[Page 79396]]

Sec.  1251.18   Are there any restrictions that apply to the production 
of records?

    (a) The General Counsel may impose conditions or restrictions on 
the release of records and agency 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, NARA may condition the release of records and agency 
information on an amendment to the existing protective order or 
confidentiality agreement.
    (b) Typically, original NARA records will not be produced in 
response to a demand. Instead of the original records, NARA provides 
certified copies for evidentiary purposes (see 28 U.S.C. 1733; 44 
U.S.C. 2116). Such copies must be given judicial notice and must be 
admitted into evidence equally with the originals from which they were 
made (see 44 U.S.C. 2116). If the General Counsel so determines, under 
exceptional circumstances, original NARA records may be made available 
for examination in response to a demand, but they are not to be 
presented as evidence.


Sec.  1251.20   Are there any fees associated with producing records or 
providing testimony?

    (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 NARA.
    (b) Fees for records. Fees for producing records 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 are calculated on the 
basis of the hourly pay of the employee (including all pay, allowance, 
and benefits). Fees for duplication are the same as those charged by 
NARA in part 1258 of this title.
    (c) Witness fees. Fees for attendance by a witness include fees, 
expenses, and allowances prescribed by the court's rules. If no such 
fees are prescribed, witness fees are determined based upon the rule of 
the Federal district court closest to the location where the witness 
appears.
    (d) Payment of fees.
    (1) Witness fees for current NARA employees must be submitted to 
the General Counsel and made payable to the Treasury of the United 
States.
    (2) Fees for the production of records, including records 
certification fees, must be submitted to the official who makes the 
final determination on demands for the production of records, as 
described in Sec.  1251.14, and made payable to the National Archives 
Trust Fund (NATF).
    (3) Applicable fees paid to former NARA employees providing 
testimony should be paid directly to the former employee in accordance 
with 28 U.S.C. 1821 or other applicable statutes.
    (e) Certification (authentication) of copies of records. NARA may 
certify that records are true copies in order to facilitate their use 
as evidence. Request certified copies from NARA at least 45 days before 
the date they are needed. We charge a certification fee for each 
document certified.
    (f) Waiver or reduction of fees. The General Counsel, in his or her 
sole discretion, may, upon a showing of good cause, waive or reduce any 
fees in connection with the testimony, production, or certification of 
records.
    (g) De minimis fees. Fees are not assessed if the total charge is 
$10.00 or less, or as otherwise stated in NARA policy.


Sec.  1251.22   Are there any penalties for providing records or 
testimony in violation of this part?

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

PART 1256--PUBLIC AVAILABILITY AND USE OF FEDERAL RECORDS

0
4. The authority citation for part 1256 continues to read as follows:

    Authority: 44 U.S.C. 2101-2118; 22 U.S.C. 1461(b); 5 U.S.C. 552; 
E.O. 12958 (60 FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 13292, 68 
FR 15315, 3 CFR, 2003 Comp., p. 196; E.O. 13233, 66 FR 56023, 3 CFR, 
2001 Comp., p. 815.


Sec.  1256.4   [Removed]

0
5. Remove Sec.  1256.4.

    Dated: December 19, 2008.
Adrienne C. Thomas,
Deputy Archivist of the United States.
 [FR Doc. E8-30885 Filed 12-24-08; 8:45 am]
BILLING CODE 7515-01-P