PART 9302—REQUESTS FOR TESTIMONY OR THE PRODUCTION OF RECORDS IN A COURT OR OTHER PROCEEDINGS IN WHICH THE UNITED STATES IS NOT A PARTY Authority: Pub. L. 110-181 (Jan. 28, 2008), Section 1229 (122 Stat. 378-85), as amended, and Section 842 (122 Stat. 234-36), 10 U.S.C. 2302 note; and 5 U.S.C. 301. Source: 77 FR 15562, Mar. 16, 2012, unless otherwise noted. § 9302.1 SIGAR Touhy regulations. (a) Applicability. (2) This section does not apply to any legal proceeding in which an employee is to testify while on leave status regarding facts or events that are unrelated to the official business of SIGAR. (3)(i) Nothing in this section affects the rights and procedures governing public access to agency records pursuant to the Freedom of Information Act (5 U.S.C. 552) or the Privacy Act (5 U.S.C. 552a). (ii) Demands in legal proceedings in which the United States is not a party for the production of SIGAR records or information, or for the testimony of SIGAR employees, regarding information or documents that are protected by the Privacy Act (5 U.S.C. 552a), the Trade Secrets Act (18 U.S.C. 1905) or other statutes, must satisfy the requirements for disclosure set forth in those statutes and the applicable regulations of this part, before the records may be provided or testimony given. (4) This section is intended to provide guidance for the internal operations of SIGAR and to inform the public about SIGAR procedures concerning service of process upon SIGAR and its responses to demands. The procedures specified in this section, or the failure of any SIGAR employee to follow the procedures specified in this section, are not intended to, do not, and may not be relied upon to create a right or benefit, substantive or procedural, enforceable at law by a party against the United States. (b) Definitions. Agency counsel Demand Document Employee General Counsel Legal proceeding Official business Testimony (c) SIGAR policy. (2) In appropriate cases, the agency counsel shall notify the United States Department of Justice (DOJ) of the demand and coordinate with the DOJ to file any appropriate motions or other pleadings. (3) No current or former employee shall, in response to a demand, produce any SIGAR documents, provide testimony regarding any information relating to or based upon SIGAR documents, or disclose any information or produce materials acquired as part of the performance of that employee's official duties or official status, in a legal proceeding in which the United States is not a party, without the prior written authorization of the General Counsel. See United States ex rel. Touhy Ragen, (d) Procedures for demand for testimony or production of documents. (2) A subpoena or other demand for testimony directed to an employee or former employee shall be served in accordance with the Federal Rules of Civil or Criminal Procedure or applicable State procedure; and a copy of the subpoena or demand shall be delivered to the General Counsel. (3)(i) Touhy Touhy Touhy Touhy (ii) Agency counsel may consult or negotiate with an attorney for a party or the party, if not represented by an attorney, to refine or limit a demand so that compliance is less burdensome or to obtain information necessary to make the determination required by paragraph (e) of this section. Failure of the requester to cooperate in good faith to enable the General Counsel to make an informed determination under this subpart may serve as a basis for denying the Touhy (iii) A determination under this section to comply or not to comply with the Touhy (4)(i) Employees shall immediately refer all inquiries and demands made to SIGAR or its employees to the General Counsel. (ii) An employee who receives a demand shall forward the demand to the General Counsel, who will determine the agency's response to the demand under this section. (e) Factors to be considered by the General Counsel with respect to a Touhy Request. (i) Whether the demand is unduly burdensome to the agency or otherwise inappropriate under the applicable rules of discovery, evidence and procedure governing the litigation in which the demand arose, balanced against the need for the specific testimony or documents sought; (ii) Whether the demand is appropriate under the relevant substantive law of privilege and disclosure of Government information, or seeks information or documents protected from disclosure under the Freedom of Information Act, 5 U.S.C. 552(b), the Privacy Act, 5 U.S.C. 552a, or the Inspector General Act of 1978, as amended, 5 U.S.C. App.; (iii) Whether the demand would interfere with SIGAR's statutory mandate stated in the “National Defense Authorization Act for Fiscal Year 2008,” Pub. L. 110-181 (Jan. 28, 2008), Section 1229 (122 Stat. 378-85), as amended; Pub. L. 110-181, Section 842 (122 Stat. 234-36), 10 U.S.C. 2302 note; or the Inspector General Act of 1978, as amended, 5 U.S.C. App.; (iv) Whether the demand would be in the public interest; (v) The extent to which the time of employees for conducting official agency business would be compromised; (vi) Whether the request demonstrates that the information requested is relevant and material to the action pending, genuinely necessary to the proceeding, unavailable from other sources, and reasonable in scope; and (vii) Whether other similar requests are likely to have a deleterious cumulative effect on the expenditure of agency time and resources. (2) Among those demands and requests in response to which compliance will ordinarily not be authorized are those with respect to which any of the following factors exists: (i) The requested disclosure elicits information or documents protected by a statute, Executive Order or regulation, including but not limited to Section 7(b) of the Inspector General Act of 1978, as amended, 5 U.S.C. App. 3, section 7(b), or other prohibition from disclosure; (ii) The requested disclosure would interfere with ongoing enforcement proceedings, compromise constitutional rights, reveal the identity of an intelligence source, confidential informant or undercover agent, or disclose trade secrets or similar confidential commercial or financial information. (iii) The integrity of the administrative and deliberative processes of SIGAR would be jeopardized; (iv) The requested disclosure would not be appropriate under the rules of procedure governing the pending litigation or matter in which the demand arose; (v) The requested disclosure is not appropriate under the relevant substantive law concerning privilege; or (vi) The requested disclosure, except when production is in camera, would reveal information properly classified or other matters exempt from unrestricted disclosure. (3) All decisions granting or denying a Touhy (f) Requests for opinion or expert testimony. (2) Upon a showing by the requestor of exceptional need or unique circumstances, the General Counsel may, in writing, grant authorization for an employee, or former employee, to appear and testify. (3) Any expert or opinion testimony by a former employee of SIGAR shall be excepted from the restriction under 5 CFR 2635.805 where the testimony involves only general expertise gained while employed at SIGAR. (g) Procedures when agency counsel directs an employee not to testify or provide documents. (2) If, despite the determination of the agency counsel that testimony should not be given or documents not be produced, a court of competent jurisdiction or other tribunal orders the employee or former employee to testify and/or produce documents, the employee shall promptly notify the General Counsel of such Order. (i) If agency counsel determines that no further legal review of, appeal from, or challenge to, the Order will be sought, agency counsel shall promptly inform the employee or former employee of said determination. (ii) If SIGAR determines to challenge an Order directing testimony or the production of documents in litigation in which the United States is not a party, the employee should not comply with the Order. The employee should appear at the time and place as commanded in the order or subpoena. If legal counsel cannot appear on behalf of the employee, the employee should produce a copy of this section and respectfully inform the Court or other legal tribunal that he/she has been advised by the General Counsel not to provide the requested testimony or documents pursuant to the decision of the United States Supreme Court in United States ex rel. Touhy Ragen, (h) Fees.