[Federal Register Volume 81, Number 205 (Monday, October 24, 2016)]
[Rules and Regulations]
[Pages 73015-73020]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23215]



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  Federal Register / Vol. 81, No. 205 / Monday, October 24, 2016 / 
Rules and Regulations  

[[Page 73015]]



OFFICE OF SPECIAL COUNSEL

5 CFR Part 1820


Revision of Regulations Governing Freedom of Information Act 
Requests and Appeals, and Revision of Touhy Regulations Governing 
Release of Information in Response to Legal Proceedings

AGENCY: U.S. Office of Special Counsel.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Final rule.
    This final rule updates and clarifies the procedures for submitting 
Freedom of Information Act (FOIA) requests and appeals to the U.S. 
Office of Special Counsel (OSC). The rule describes additional methods 
for submitting FOIA requests and appeals. It also promotes efficiency 
in FOIA administration by enhancing OSC's ability to respond to certain 
requests on an expedited basis. The final rule makes minor technical 
revisions to the name of an OSC unit and to OSC's Internet, fax, and 
physical address information. The rule also establishes procedures that 
requesters must follow when making demands on or requests to an OSC 
employee to produce official records or provide testimony relating to 
official information in connection with a legal proceeding in which the 
OSC is not a party.

DATES: This final rule is effective October 24, 2016.

FOR FURTHER INFORMATION CONTACT: Amy Beckett, Senior Litigation 
Counsel, U.S. Office of Special Counsel, 202-254-3657

SUPPLEMENTARY INFORMATION: OSC published a proposed rule on May 5, 
2015, FR Doc No: 2016-09799 and solicited public comment on that rule. 
OSC has considered the comments and is issuing this final rule in due 
course.

I. Background

    FOIA Regulations. The U.S. Office of Special Counsel (OSC) revises 
its FOIA regulations to account for the additional electronic methods 
by which requesters may submit FOIA requests and appeals, and modifies 
the manner by which requests qualify for expedited processing. OSC also 
makes minor technical revisions to the name of an OSC unit and to OSC's 
Internet, fax, and physical address information.
    The existing language of 5 CFR 1820.2 and 1820.6 describes regular 
mail and fax as the methods by which to submit FOIA requests and 
appeals. The final rule adds email or other electronic submission 
methods.
    The existing language of 5 CFR 1820.1 refers to the main OSC 
Internet and FOIA page addresses. The final rule describes Internet 
access to OSC FOIA resources through the main OSC Internet address. The 
first commenter suggested that subsection (a)(1) identify OSC's fax 
number and email address. At the risk of the contact information later 
being changed, OSC considered and adopted the suggested change to 
subsection (a)(1). The commenter also suggested a minor grammatical 
change to subsection (c), which OSC also considered and adopted. The 
first commenter also proposed changes to Section 1820.3 regarding 
whether OSC may consult with entities the commenter argues are not 
``agencies'' for FOIA purposes. OSC is postponing consideration of this 
suggested change pending its mandated update to the regulation required 
by the recently enacted FOIA Improvement Act of 2016, Public Law 114-
185.
    The existing language of 5 CFR 1820.2 and 1820.6 regarding OSC's 
physical address would be modified in a minor, technical manner. The 
first commenter also suggested that subsection (a)(3) allow requesters 
to submit appeals by email in addition to ``other electronic means.'' 
OSC has accepted email requests and appeals for several years, so OSC 
adopts the suggested change both to conform the rule to OSC's current 
practice and to specify that OSC accepts email submissions. The 
commenter also urged OSC to notify requesters of the mediation services 
offered by the Office of Government Information Services and to add 
that OSC will respond to administrative appeals within the statutory 
deadline. OSC has already adopted this practice pursuant to the 
recently enacted FOIA Improvement Act of 2016, Public Law 114-185. OSC 
has also begun to notify new requesters as of June 30, 2016 that they 
have 90 days to appeal an adverse determination and will revise the 
regulation to reflect this, and other updated practices, when it issues 
its mandated update to the regulation required by the recently enacted 
FOIA Improvement Act of 2016, Public Law 114-185. The existing language 
of 5 CFR 1820.6 refers to an OSC unit as the ``Legal Counsel and Policy 
Division.'' The name of that unit is updated in the final rule to the 
``Office of General Counsel.''
    The existing language of 5 CFR 1820.4(c)(1)(iii) discusses one of 
the three criteria under which a FOIA request can be processed out of 
order of receipt and addressed on an expedited basis. That language 
provides, in part, expedited treatment of a FOIA request when the 
requested records relate to ``an appeal that is pending before, or that 
the requester faces an imminent deadline for filing with'' another 
administrative or judicial tribunal, ``seeking personal relief pursuant 
to a complaint filed by the requester with OSC, or referred to OSC 
pursuant to title 38 of the U.S. Code.''
    The final rule clarifies that the criteria discussed at 5 CFR 
1820.4(c)(1)(iii) applies only when the requested records relate to an 
appeal for which the requester faces an imminent deadline for filing 
with another administrative or judicial tribunal. In addition, the 
final rule specifies that a grant of expedited treatment applies only 
to the following requested records: Letters sent to a complainant by 
OSC, and the official complaint form submitted to OSC by the 
complainant or the original referred complaint if referred to OSC 
pursuant to title 38 of the U.S. Code. All other requested records 
would be processed according to the order in which OSC received the 
request.
    By narrowing the focus of expedited status to certain records that 
are of interest to complainant-requesters, and are typically readily 
available for disclosure to the complainant-requesters, OSC is able to 
process and respond to expedited requests more efficiently. Any other 
requested records will generally be processed in the order OSC received 
the request.

[[Page 73016]]

    Touhy Regulations. OSC also revises its regulations relating to the 
release of information in response to requests made in connection with 
legal proceedings, such as summonses, complaints, subpoenas, and other 
litigation-related requests or demands for OSC's records or official 
information. These regulations are often referred to as Touhy 
regulations.
    Federal agencies often receive demands consisting of informal 
requests for production of records, information, or testimony in 
judicial, legislative, or administrative proceedings in which the 
agency is not a named party. OSC revises its regulation to improve its 
evaluation and processing of such requests.
    The United States Supreme Court upheld this type of regulation in 
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), holding that 
provisions in the federal ``housekeeping'' statute authorize agencies 
to promulgate rules governing record production and employee testimony. 
See 5 U.S.C. 301.
    The prior language of 5 CFR1820.10 referred to the ``[p]roduction 
of official records or testimony in legal proceedings.'' This revision 
provides the agency with more clearly delineated standards for 
releasing information or witness testimony. Generally, this revision 
re-establishes that no OSC employee or former employee shall release 
official information or records without the prior approval of the 
Special Counsel or the Special Counsel's duly authorized designee.
    Under this final rule, OSC establishes procedural requirements for 
the form and content of requests for official OSC information made 
through a litigation request or demand, as well as establishing 
procedures for responding to the requests. This final rule also states 
the factors that OSC will consider in determining whether to authorize 
a release of official information in response to a request.

II. Overview of Comments Received

    In response to the proposed rule, OSC received two comment letters 
regarding the proposed changes to the FOIA regulation, including 
suggestions for changing additional sections of the regulation. The 
first commenter suggested that OSC include additional contact details 
within the text of the FOIA regulation, that OSC amend the section 
governing consultations and referrals, and that OSC make additional 
changes as to the appeals process. The second commenter suggested 
changes regarding the definition of ``representative of the news 
media,'' fees, records preservation, and records management. OSC will 
postpone consideration of several of the proposed changes pending its 
mandated update to the regulation required by the recently enacted FOIA 
Improvement Act of 2016l, Public Law 114-185.
    OSC did not receive any comments concerning its Touhy regulation. 
Accordingly, OSC will issue the final rule without modification to the 
Touhy provisions.
    In section IV below, OSC set forth its final rule, a section by 
section summary of the two comments it received to the proposed final 
rule, and OSC's responses to these comments.

Subpart A, Sections 1820.10, 11, and 12

III. Procedural Determinations

    Administrative Procedure Act (APA): This action is taken under the 
Special Counsel's authority at 5 U.S.C. 1212(e) to publish regulations 
in the Federal Register.
    Executive Order 12866 (Regulatory Planning and Review): OSC does 
not anticipate that this final rule will have significant economic 
impact, raise novel issues, and/or have any other significant impacts. 
Thus this final rule is not a significant regulatory action under 3(f) 
of Executive Order 12866 and does not require an assessment of 
potential costs and benefits under 6(a)(3) of the Order.
    Congressional Review Act (CRA): OSC has determined that this final 
rule is not a major rule under the Congressional Review Act, as it is 
unlikely to result in an annual effect on the economy of $100 million 
or more; is unlikely to result in a major increase in costs or prices 
for consumers, individual industries, federal, state, or local 
government agencies or geographic regions; and is unlikely to have a 
significant adverse effect on competition, employment, investment, 
productivity, or innovation, or on the ability of U.S.-based 
enterprises to compete in domestic and export markets.
    Regulatory Flexibility Act (RFA): The Regulatory Flexibility Act 
does not apply, even though this final rule was offered for notice and 
comment procedures under the APA. This final rule will not directly 
regulate small entities. OSC therefore need not perform a regulatory 
flexibility analysis of small entity impacts.
    Unfunded Mandates Reform Act (UMRA): This revision does not impose 
any federal mandates on state, local, or tribal governments, or on the 
private sector within the meaning of the UMRA.
    National Environmental Policy Act (NEPA): This final rule will have 
no physical impact upon the environment and therefore will not require 
any further review under NEPA.
    Paperwork Reduction Act (PRA): This final rule does not impose any 
new recordkeeping, reporting, or other information collection 
requirements on the public. The final rule sets forth procedures by 
which litigants may serve summonses, complaints, subpoenas, and other 
legal process, demands, and requests upon the OSC. The final rule 
imposes special procedural requirements for those who seek to serve 
third-party subpoenas upon the OSC in accordance with United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951). These requirements may 
increase the time and burden associated with obtaining records of the 
OSC in response to such third-party subpoenas.
    Executive Order 13132 (Federalism): This final revision does not 
have new federalism implications under Executive Order 13132.
    Executive Order 12988 (Civil Justice Reform): This final rule meets 
applicable standards of 3(a) and 3(b)(2) of Executive Order 12988.

List of Subjects in 5 CFR Part 1820

    Administrative practice and procedure, Freedom of Information, 
Government employees, Touhy regulations.

IV. Authority and Issuance

    For the reasons stated in the preamble, OSC revises 5 CFR part 1820 
as follows:

PART 1820--FREEDOM OF INFORMATION ACT REQUESTS; PRODUCTION OF 
RECORDS OR TESTIMONY

0
1. The authority citation for 5 CFR part 1820 continues to read as 
follows:

    Authority: 5 U.S.C. 552 and 1212(e); Executive Order No. 12600, 
52 FR 23781.


0
2. Revise Sec.  1820.1 to read as follows:


Sec.  1820.1  General provisions.

    This part contains rules and procedures followed by the U.S. Office 
of Special Counsel (OSC) in processing requests for records under the 
Freedom of Information Act (FOIA), as amended, at 5 U.S.C. 552. These 
rules and procedures should be read together with the FOIA, which 
provides additional information about access to agency records. Further 
information about the FOIA and access to OSC records is available on 
the FOIA page of OSC's Web site (https://www.osc.gov). Information 
routinely provided to the public as part of a regular OSC activity--for 
example, forms, press releases issued by the public affairs officer, 
records published on the agency's Web site, or public lists

[[Page 73017]]

maintained at OSC headquarter offices pursuant to 5 U.S.C. 1219--may be 
requested and provided to the public without following this part. This 
part also addresses responses to demands by a court or other authority 
to an employee for production of official records or testimony in legal 
proceedings.

0
3. Revise Sec.  1820.2 to read as follows:


Sec.  1820.2  Requirements for making FOIA requests.

    (a) Submission of requests. (1) A request for OSC records under the 
FOIA must be made in writing. The request must be sent by:
    (i) Regular mail addressed to: FOIA Officer, U.S. Office of Special 
Counsel, 1730 M Street NW., Suite 218, Washington, DC 20036-4505; or
    (ii) By fax sent to the FOIA Officer at 202-254-3711, the number 
provided on the FOIA page of OSC's Web site (https://osc.gov/Pages/FOIA-Resources.aspx) (https://www.osc.gov); or
    (iii) By email to [email protected] or other electronic means as 
described on the FOIA page of OSC's Web site, https://osc.gov/Pages/FOIA-Resources.aspx.
    (2) For the quickest handling, both the request letter and envelope 
or any fax cover sheet or email subject line should be clearly marked 
``FOIA Request.'' Whether sent by mail, fax, email, or other prescribed 
electronic method, a FOIA request will not be considered to have been 
received by OSC until it reaches the FOIA office.
    (b) Description of records sought. Requesters must describe the 
records sought in enough detail for them to be located with a 
reasonable amount of effort. When requesting records about an OSC case 
file, the case file number, name, and type (for example, prohibited 
personnel practice, Hatch Act, USERRA or other complaint; Hatch Act 
advisory opinion; or whistleblower disclosure) should be provided, if 
known. Whenever possible, requests should describe any particular 
record sought, such as the date, title or name, author, recipient, and 
subject matter.
    (c) Agreement to pay fees. Making a FOIA request shall be 
considered an agreement by the requester to pay all applicable fees 
chargeable under Sec.  1820.7, up to and including the amount of 
$25.00, unless the requester asks for a waiver of fees or specifies a 
willingness to pay a greater or lesser amount.

0
4. Revise Sec.  1820.4 to read as follows:


Sec.  1820.4  Timing of responses to requests.

    (a) In general. OSC ordinarily will respond to FOIA requests 
according to their order of receipt. In determining which records are 
responsive to a request, OSC ordinarily will include only records in 
its possession as of the date on which it begins its search for them. 
If any other date is used, OSC will inform the requester of that date.
    (b) Multitrack processing. (1) OSC may use two or more processing 
tracks by distinguishing between simple and more complex requests based 
on the amount of work and/or time needed to process the request.
    (2) When using multitrack processing, OSC may provide requesters in 
its slower track(s) with an opportunity to limit the scope of their 
requests in order to qualify for faster processing within the specified 
limits of the faster track(s).
    (c) Expedited processing. (1) Requests and appeals will be taken 
out of order and given expedited treatment whenever OSC has established 
to its satisfaction that:
    (i) Failure to obtain requested records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) With respect to a request made by a person primarily engaged 
in disseminating information, an urgency exists to inform the public 
about an actual or alleged federal government activity; or
    (iii) The requested records relate to an appeal for which the 
requester faces an imminent deadline for filing with the Merit Systems 
Protection Board or other administrative tribunal or a court of law, 
seeking personal relief pursuant to a complaint filed by the requester 
with OSC, or referred to OSC pursuant to title 38 of the U.S. Code. 
Expedited status granted under this provision will apply only to the 
following requested records: Letters sent to the complainant by OSC; 
and the official complaint form submitted to OSC by the complainant or 
the original referred complaint if referred to OSC pursuant to title 38 
of the U.S. Code. All other requested records will be processed 
according to the order in which OSC received the request.
    (2) A request for expedited processing must be made in writing and 
sent to OSC's FOIA Officer. Such a request will not be considered to 
have been received until it reaches the FOIA Officer.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of that 
person's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. For example, a requester within the 
category described in paragraph (c)(1)(ii) of this section, if not a 
full-time member of the news media, must establish that he or she is a 
person whose main professional activity or occupation is information 
dissemination, though it need not be his or her sole occupation. The 
formality of certification may be waived as a matter of OSC's 
administrative discretion.
    (4) OSC shall decide whether to grant a request for expedited 
processing and notify the requester of its decision within 10 calendar 
days of the FOIA Officer's receipt of the request. If the request for 
expedited processing is granted, the request for records shall be 
processed as soon as practicable. If a request for expedited processing 
is denied, any administrative appeal of that decision shall be acted on 
expeditiously.
    (d) Aggregated requests. OSC may aggregate multiple requests by the 
same requester, or by a group of requesters acting in concert, if it 
reasonably believes that such requests constitute a single request 
involving unusual circumstances, as defined by the FOIA, supporting an 
extension of time to respond, and the requests involve clearly related 
matters.

0
5. Revise Sec.  1820.6 to read as follows:


Sec.  1820.6  Appeals.

    (a) Appeals of adverse determinations. A requester may appeal an 
adverse determination denying a FOIA request in any respect to the 
Office of General Counsel, U.S. Office of Special Counsel, 1730 M 
Street NW., Suite 218, Washington, DC 20036-4505. The appeal must be in 
writing, and must be submitted either by:
    (1) Regular mail sent to the address listed in this subsection, 
above; or
    (2) By fax sent to the FOIA Officer at, (202) 254-3711, the number 
provided on the FOIA page of OSC's Web site https://osc.gov/Pages/FOIA-Resources.aspx; or
    (3) By email to [email protected], or other electronic means as 
described on the FOIA page of OSC's Web site, https://osc.gov/Pages/FOIA-Resources.aspx.
    (b) Submission and content. The appeal must be received by the 
Office of General Counsel within 45 days of the date of the letter 
denying the request. For the quickest possible handling, the appeal 
letter and envelope or any fax cover sheet should be clearly marked 
``FOIA Appeal.'' The appeal letter must clearly identify the OSC 
determination (including the assigned FOIA request number, if known) 
being appealed. An appeal ordinarily will not be acted on if

[[Page 73018]]

the request becomes a matter of FOIA litigation.
    (c) Responses to appeals. The agency decision on an appeal will be 
made in writing. A decision affirming an adverse determination in whole 
or in part shall inform the requester of the provisions for judicial 
review of that decision. If the adverse determination is reversed or 
modified on appeal, in whole or in part, the requester will be notified 
in a written decision and the request will be reprocessed in accordance 
with that appeal decision.

0
6. Add a new heading for subpart A before Sec.  1820.10 as set forth 
below.

0
7. Revise Sec.  1820.10 and add Sec. Sec.  1820.11 and 1820.12 to 
subpart A to read as follows:

Subpart A--Touhy Regulations General Provisions

Sec.
1820.10 Scope and purpose.
1820.11 Applicability.
1820.12 Definitions.


Sec.  1820.10  Scope and purpose.

    (a) This part establishes policy, assigns responsibilities and 
prescribes procedures with respect to:
    (1) The production or disclosure of official information or records 
by current and former OSC employees, and contractors; and
    (2) The testimony of current and former OSC employees, advisors, 
and consultants relating to official information, official duties, or 
the OSC's records, in connection with federal or state litigation or 
administrative proceedings in which the OSC is not a party.
    (b) The OSC intends this part to:
    (1) Conserve the time of OSC employees for conducting official 
business;
    (2) Minimize the involvement of OSC employees in issues unrelated 
to OSC's mission;
    (3) Maintain the impartiality of OSC employees in disputes between 
private litigants; and
    (4) Protect sensitive, confidential information and the 
deliberative processes of the OSC.
    (c) In providing for these requirements, the OSC does not waive the 
sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of OSC. 
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.  1820.11  Applicability.

    This part applies to demands and requests to current and former 
employees, and contractors, for factual or expert testimony relating to 
official information or official duties or for production of official 
records or information, in legal proceedings in which the OSC is not a 
named party. This part does not apply to:
    (a) Demands upon or requests for current or former OSC employees or 
contractors to testify as to facts or events that are unrelated to his 
or her official duties or that are unrelated to the functions of the 
OSC;
    (b) 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. 552a; or
    (c) Congressional demands and requests for testimony, records or 
information.


Sec.  1820.12  Definitions.

    The following definitions apply to this part.
    Demand means an order, subpoena, 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 OSC employee in a 
legal proceeding.
    General Counsel means the General Counsel of the OSC or a person to 
whom 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.
    OSC means the U.S. Office of Special Counsel.
    OSC employee or employee means:
    (1)(i) Any current or former employee of the OSC; and
    (ii) Any other individual hired through contractual agreement by or 
on behalf of the OSC or who has performed or is performing services 
under such an agreement for the OSC.
    (2) This definition does not include persons who are no longer 
employed by the OSC and who agree to testify about matters available to 
the public.
    Records or official records and information means all information 
in the custody and control of the OSC, relating to information in the 
custody and control of the OSC, or acquired by an OSC employee in the 
performance of his or her official duties or because of his or her 
official status, while the individual was employee by or on behalf of 
the OSC.
    Request means any informal request, by whatever method, for the 
production of records and information or for testimony which has not 
been ordered by a court of other competent authority.
    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.

0
8. Add subpart B to read as follows:

Subpart B--Demands or Requests for Testimony and Production of 
Documents

Sec.
1820.13 General prohibition.
1820.14 Factors the OSC will consider.
1820.15 Filing requirements for litigants.
1820.16 Service of requests or demands.
1820.17 Processing requests or demands.
1820.18 Final determinations.
1820.19 Restrictions that apply to testimony.
1820.20 Restrictions that apply to released records.
1820.21 Procedure when a decision is not made prior to the time a 
response is required.
1820.22 Procedure in the event of an adverse ruling.


Sec.  1820.13  General prohibition.

    No employee of OSC 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.  1820.14  Factors the OSC 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 a 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) Allowing such testimony or production of records would assist 
or hinder the OSC in performing its statutory duties;
    (d) Allowing such testimony or production of records would be in 
the best interest of the OSC or the United States;
    (e) The records or testimony can be obtained from other sources;
    (f) The demand or request is unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rule of 
procedure governing the

[[Page 73019]]

case or matter in which the demand or request arose;
    (g) Disclosure would violate a statute, Executive Order or 
regulation;
    (h) Disclosure would reveal confidential, sensitive, or privileged 
information, trade secrets or similar, confidential or financial 
information, otherwise protected information, or information which 
would otherwise be inappropriate for release;
    (i) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceeding, or compromise constitutional 
rights or national security interests;
    (j) Disclosure would result in the OSC appearing to favor one 
litigant over another;
    (k) A substantial government interest is implicated;
    (l) The demand or request is within the authority of the party 
making it; and
    (m) The demand or request is sufficiently specific to be answered.


Sec.  1820.15  Filing requirements for litigants seeking documents or 
testimony.

    A litigant must comply with the following requirements when filing 
a request for official records and information or testimony under this 
part. A request should be filed before a demand is issued.
    (a) The request must be in writing and must be submitted to the 
General Counsel.
    (b) The written request must contain the following information:
    (1) The caption of the legal or administrative proceeding, docket 
number, and name and address of the court or other administrative or 
regulatory 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 or 
administrative 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 
any need to maintain the confidentiality of the information and 
outweighs the burden on the OSC 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 OSC employee, such as a retained 
expert;
    (6) If testimony is requested, the intended use of the 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 of each OSC employee for time spent by the 
employee to prepare for testimony, in travel, and for attendance in the 
legal proceeding.
    (c) The OSC reserves the right to require additional information to 
complete the request where appropriate.
    (d) The request should be submitted at least 30 days before the 
date that records or testimony is required. Requests submitted in less 
than 30 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 the request.
    (f) The request should state that the requester will provide a copy 
of the OSC employee's statement free of charge and that the requester 
will permit the OSC to have a representative present during the 
employee's testimony.


Sec.  1820.16  Service of requests or demands.

    Requests or demands for official records or information or 
testimony under this subpart must be served by mail or hand delivery to 
the Office of General Counsel, U.S. Office of Special Counsel, 1730 M 
St. NW., Suite 213, Washington, DC 20036; or sent by fax to 202-254-
3711.


Sec.  1820.17  Processing requests or demands.

    (a) After receiving service of a request or demand for testimony, 
the General Counsel will review the 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) Absent exigent circumstances, the OSC will issue a 
determination within 30 days from the date the request is received.
    (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 the OSC or the United States, or for 
other good cause.
    (d) Certification (authentication) of copies of records. The OSC 
may certify that records are true copies in order to facilitate their 
use as evidence. If a requester seeks certification, the requester must 
request certified copies from the OSC at least 30 days before the date 
they will be needed.


Sec.  1820.18  Final determination.

    The General Counsel makes the final determination regarding 
requests to employees for production of official records and 
information or testimony in litigation in which the OSC is not a party. 
All final determinations are within the sole discretion of the General 
Counsel. The General Counsel will notify the requester and, when 
appropriate, the court or other competent authority of the final 
determination, the reasons for the grant or denial of the request, and 
any conditions that the General Counsel may impose on the release of 
records or information, or on the testimony of an OSC employee. The 
General Counsel's decision exhausts administrative remedies for 
purposes of disclosure of the information.


Sec.  1820.19  Restrictions that apply to testimony.

    (a) The General Counsel may impose conditions or restrictions on 
the testimony of OSC employees including, for example:
    (1) Limiting the areas of testimony;
    (2) Requiring the requester and other parties to the legal 
proceeding to agree that the transcript of the testimony will be kept 
under seal;
    (3) Requiring that the transcript will be used or made available 
only 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) The OSC 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; or
    (2) For a current OSC 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 the OSC unless testimony is being 
given on behalf of the United States (see also 5 CFR 2635.805).

[[Page 73020]]

    (d) The scheduling of an employee's testimony, including the amount 
of time that the employee will be made available for testimony, will be 
subject to the OSC's approval.


Sec.  1820.20  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, the OSC may condition the release of official records and 
information on an amendment to the existing protective order (subject 
to court approval) or confidentiality agreement.
    (b) If the General Counsel so determines, original OSC records may 
be presented for examination in response to a request, but they may not 
be presented as evidence or otherwise used in a manner by which they 
could lose their identity as official OSC records, nor may they be 
marked or altered. In lieu of the original records, certified copies 
may be presented for evidentiary purposes.


Sec.  1820.21  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.  1820.28, the 
General Counsel, when necessary, will provide the court or other 
competent authority with a copy of this part, inform the court or other 
competent authority that the request is being reviewed, provide an 
estimate as to when a decision will be made, and seek a stay of the 
demand or request pending a final determination.


Sec.  1820.22  Procedure in the event of an adverse ruling.

    If the court or other competent authority fails to stay a demand or 
request, the employee upon whom the demand or request is made, unless 
otherwise advised by the General Counsel, will appear, if necessary, 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 or request, citing United States ex rel. Touhy v. Ragen, 340 
U.S. 462 (1951).

0
9. Add subpart C, consisting of Sec.  1820.23, to read as follows:

Subpart C--Schedule of Fees


Sec.  1820.23  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 the OSC.
    (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 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, 
allowances, and benefits). Fees for duplication will be the same as 
those charged by the OSC in its Freedom of Information Act regulations 
at Sec.  1820.7.
    (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 closest to the location where the 
witness will appear and on 28 U.S.C. 1821, as applicable. Such fees 
will include cost of time spent by the witness to prepare for 
testimony, in travel and for attendance in the legal proceeding, plus 
travel costs.
    (d) Payment of fees. A requester must pay witness fees for current 
OSC employees and any record certification fees by submitting to the 
General Counsel a check or money order for the appropriate amount made 
payable to the United States Department of Treasury. In the case of 
testimony of former OSC employees, the requester must pay applicable 
fees directly to the former OSC employee in accordance with 28 U.S.C. 
1821 or other applicable statutes.
    (e) 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.
    (f) De minimis fees. Fees will not be assessed if the total charge 
would be $10.00 or less.

0
10. Add subpart D, consisting of Sec.  1820.24, to read as follows:

Subpart D--Penalties


Sec.  1820.24  Penalties.

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

0
11. Add subpart E, consisting of Sec.  1820.25, to read as follows:

Subpart E--Conformity With Other Laws


Sec.  1820.25  Conformity with other laws.

    This regulation is not intended to conflict with 5 U.S.C. 
2302(b)(13).

    Dated: September 21, 2016.
Lisa V. Terry,
General Counsel.
[FR Doc. 2016-23215 Filed 10-21-16; 8:45 am]
BILLING CODE 7405-01-P