[Federal Register Volume 62, Number 209 (Wednesday, October 29, 1997)]
[Rules and Regulations]
[Pages 56051-56056]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-28585]
=======================================================================
-----------------------------------------------------------------------
NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 792
Production of Nonpublic Records and Testimony of NCUA Employees
in Legal Proceedings
AGENCY: National Credit Union Administration (NCUA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The NCUA amends its rules regarding subpoenas seeking
nonpublic records or the testimony of NCUA employees. The rule provides
procedures, requirements and information on how the NCUA will handle
these matters and expressly prohibits any disclosure or testimony
except as provided by the rule. The rule also amends the current rule
regarding release of NCUA records that are exempt from disclosure under
the Freedom of
[[Page 56052]]
Information Act to conform with the procedures provided in this
proposed rule.
DATES: Effective October 29, 1997.
ADDRESSES: National Credit Union Administration, 1775 Duke Street,
Alexandria, Virginia 22314-3428.
FOR FURTHER INFORMATION CONTACT: Sheila Albin, Associate General
Counsel, or Allan Meltzer, Associate General Counsel, (703) 518-6540.
SUPPLEMENTARY INFORMATION:
Background
The NCUA receives numerous subpoenas and requests for NCUA
employees to provide evidence in litigation. Typically, these subpoenas
are for NCUA records that are not available to the public under the
Freedom of Information Act (FOIA). Also, we receive numerous subpoenas
and requests for NCUA employees to appear as witnesses in litigation in
conjunction with a request for nonpublic records or to provide
testimony.
In recent years, the number of requests has averaged about two or
three a month. Often, these subpoenas and requests relate to litigation
involving federally-insured credit unions where there is some issue for
which one or both of the parties want to use nonpublic records, such as
NCUA examination reports, as evidence in the case. In addition, the
parties want to have an NCUA employee, often an examiner, testify to
establish the authenticity of the records or explain the information
contained in the records. If we provide these records and an examiner
appears as a witness, this will mean a significant disruption in the
examiner's work schedule. In many cases, parties want to use the
examiner as an expert witness on matters such as the financial
condition of the credit union or other issues involving opinions. Our
experience has been that, in many cases, the parties can deal with
these issues through the testimony of other witnesses, including hiring
their own independent, expert witness, and using the parties' own
records.
Proposed Rule
On April 16, 1997, the NCUA Board issued a proposed rule to revise
Part 792.62 FR 19941 (April 24, 1997). The proposed rule was presented
in a question and answer format to promote clarity and uses simple
terms. It continued the basic prohibition against disclosure of
nonpublic records or testimony by NCUA employees without obtaining
permission. The proposed rule also set out for the public what
information to submit and what factors the NCUA will consider; and
identified filing times, fees, and potential restrictions on
disclosures or testimony. The rule identified the proposed charges for
witnesses as 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.
Comments
In the Supplementary Information section of the proposed rule, the
NCUA stated its interest in receiving comments on the application of
the proposed regulation to former as well as current employees,
including its application to proceedings to which NCUA is a party, the
exception from coverage for expert testimony by former employees, and
any other factors that commenters believed the NCUA should consider in
addition to those set out in Sec. 792.46 in reaching a final
determination. Four comment letters were received: two from national
trade associations, one from a state league and one from a federal
credit union.
Comments from the two national trade associations indicated their
general support for more efficient procedures and recognized the need
to protect the confidentiality of examination-related records. Both
trade associations commented on NCUA's authority to prevent former
employees from testifying. One trade association stated that it
questioned NCUA's authority to prevent the testimony of former
employees unless it was clear that nonpublic records such as
examination records would be divulged.
We first want to note that the rule is substantially similar to
regulations issued by our sister financial regulatory agencies that
also restrict disclosure of confidential information by former
employees or any person in possession of such information. Federal
Deposit Insurance Corporation, 12 C.F.R. 309.7; Office of Thrift
Supervision, 12 C.F.R. 510.5; The Federal Reserve System, 12 C.F.R.
261.14. The focus of the rule is on requiring that NCUA receive notice
of proposed testimony by a former employee. The purpose is not to
restrict former employees but to protect the release of confidential
records and information that may be in their possession. Even when
former employees are not in possession of nonpublic records, they may
still have substantial knowledge and information that they recall
regarding matters that remain confidential. For this reason, the NCUA
wants an opportunity, in advance of testimony being given, to consult
with former employees and any party wishing to use their testimony in
order to protect the confidentiality of that information by prohibiting
or limiting such testimony as appropriate.
Our view is that the definition of employee makes clear that the
NCUA's intent is to protect confidential information. Former employees
remain prohibited from testifying about specific matters for which they
had responsibility during their active employment, unless permitted to
testify as provided in the rule. They would not, however, be barred
from appearing on general matters or otherwise employing their
expertise as, for example, expert witnesses. Finally, we want to
highlight the fact that the final rule, as in the proposed rule,
contains a prohibition against release of nonpublic records by any
person who may have custody of them.
Both trade associations also commented on Sec. 792.46 that sets out
the factors NCUA will consider in reviewing a request. One commented
that the factors were too subjective. The other commented that a better
rationale would be to rely on a legal basis such as a statute or
evidentiary privilege and suggested using the standard used by the
Federal Reserve Board which is whether the need for the information
outweighs the need for confidentiality and whether disclosure is
consistent with Board policy and supervisory and regulatory
responsibilities. 12 CFR 261.13(c). We believe that the factors we have
listed include several examples of established statutory and
evidentiary privileges and that, although phrased differently, the
factors in the final rule set the same basic standard used by the
Federal Reserve Board but in simpler, more specific language. We do not
think the factors are subjective but are necessarily and appropriately
flexible. For example, the factor of whether a request is burdensome
must be considered on a case-by-case.
Both trade associations commented on the information that a written
request must include. One commented that it made difficult for a
litigant to know the relevance of what is sought and offered as an
alternative that a requester only be required to assert affirmatively
that the documents are relevant. We disagree. The regulation is
designed to protect nonpublic records and the testimony of employees,
which by their nature, will likely contain sensitve and confidential
information. Without a basis for concluding that the records or
testimony are relevant in a particular matter, the NCUA should not
consider releasing them. In addition, merely establishing that records
or testimony are relevant is not sufficient. In order to be able to
consider the factors set out in Sec. 792.46,
[[Page 56053]]
the NCUA must have information about the nature of the proceedings. The
NCUA must know something about the proceedings in order to consider
whether the litigant can obtain the information or testimony from other
sources. For example, if litigants want nonpublic records or the
testimony of NCUA employees merely to establish the general financial
condition of a credit union, we think they should seek financial
records directly from the credit union and hire their own expert
witness to testify about them. In response to the comment that it may
be difficult for a requester to specify what records it wants because
he or she may not know what is available, we think a requester can
phrase such a request in terms of the facts or issues that are relevant
in much the same way that the Freedom of Information Act requests or
discovery requests in civil litigation are prepared. Thus, if a
requester cannot identify specific records, the description of the
facts or issues involved should be sufficient to permit the NCUA to
identify responsive records.
With regard to application of the rule to proceedings to which NCUA
is a party, there was one comment that NCUA should have to abide by the
same rules of evidence as other litigants. Another comment was to the
effect that the statement that NCUA will be subject to applicable rules
of civil procedure when it is a party to a proceeding should be more
conspiculously placed. This statement appears in the definition of
``legal proceedings'' and, we believe, states clearly that NCUA will be
subject to the applicable rules of procedure when it is a party. As a
matter of drafting, we believe that it is appropriately placed in the
definition section. That same definition also states clearly that, the
rule will still apply to the testimony of former employees even when
the NCUA is a party to a proceeding. Unless the NCUA receives notice as
provided under the rule, it may not otherwise receive notice of a
former employee's testimony even though NCUA is a party to a
proceeding. This is because a former employee may otherwise be
contacted for testimony in the form of declarations, affidavits,
statements or interviews, which could involve the former employee's
revealing confidential information without any prior notice to NCUA of
the nature of the testimony. For that reason, the rule will still apply
to former employees when NCUA is a party to a proceeding. Obviously,
where NCUA is a party to a proceeding, it will be in a position to
receive notice of any requests for records or the testimony of current
employees.
Comments from the state league and one federal credit union
generally were supportive of the proposed regulation but indicated some
concern that the regulation should not be used to deny access to
records that should be made available. The NCUA reiterates its position
stated when it issued the proposed regulation. The final rule is
essentially procedural, not substantive. It does not create a right to
obtain records or the testimony of an NCUA employee nor does it create
any additional right or privilege not already available to NCUA to deny
such a request.
Final Rule
The final rule is the same as the proposed rule. It solves some
problems that have arisen in the past. It should eliminate or reduce
eleventh hour requests. Also, by centralizing the service of subpoenas
and the determination of the NCUA's response, it should eliminate
attempts to serve subpoenas or present requests for disclosure of
nonpublic records to field staff and regional offices. The procedures
and criteria will ensure a more efficient use of NCUA resources,
minimize the possibility of involving the NCUA in issues unrelated to
its responsibilities, promote uniformity in responding to such requests
and subpoenas and maintain the impartiality of NCUA between private
litigants. The final rule will serve NCUA's interest in protecting
sensitive, confidential and privileged information and records
generated by its supervisory and regulatory work.
The NCUA reiterates its position that, in issuing this regulation,
it is not making any waiver of its sovereign immunity. For reference,
the NCUA notes that, in addition to the foregoing, a discussion of the
legal authority for issuance of this regulation is set out in the
Supplemental Information accompanying the publication of the proposed
regulation. 62 FR 19941 (April 24, 1997).
Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act requires the NCUA to prepare an
analysis to describe any significant economic impact any proposed
regulation may have on a substantial number of small credit unions,
meaning those under $1 million in assets. The NCUA Board has determined
and certifies that the proposed rule, if adopted, will not have a
significant economic impact on a substantial number of small credit
unions. The reasons for this determination are that the copying and
witness fees to be charged to person and entities submitting requests
under the regulation are not large and will not create a financial
burden. The proposed rule will not create any significant demand for
legal, accounting, or consulting expenditures. Accordingly, the NCUA
Board has determined that a Regulatory Flexibility Analysis is not
required.
Paperwork Reduction Act
The NCUA submitted a copy of the proposed rule to the Office of
Management and Budget (OMB) for its review. OMB received no comments on
the proposed rule. Under the Paperwork Reduction Act of 1995, no
persons are required to respond to a collection of information unless
it displays a valid OMB control number. OMB has assigned 31330146 as
the control number that will be displayed in the table at 12 CFR Part
795.
Executive Order 12612
Executive Order 12612 requires NCUA to consider the effect of its
actions on state interests. This final rule is essentially of a
procedural nature only governing release of NCUA's own nonpublic
records and the appearance of NCUA employees in legal proceedings. The
NCUA has determined that the final rule does not constitute a
significant regulatory action for purposes of the Executive Order.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) (Pub. L. 104-121) provides generally for congressional review
of agency rules. The reporting requirement is triggered when a final
rule is issued. The rule was submitted to OMB for determination of
whether this final rule constitutes a major rule as defined under the
statute. A major rule is one that OMB finds has resulted in or is
likely to result in: (1) An annual effect on the economy of $100
million or more; (2) a major increase in costs or prices for consumers,
individual, industries, federal, state, or local government agencies,
or geographic regions; or (3) significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of the United States based enterprises to compete with
foreign-based enterprises in domestic and export markets. OMB has
determined that this is not a major rule.
[[Page 56054]]
List of Subjects in 12 CFR Part 792
Administrative practice and procedure, Credit unions, Confidential
business information, Freedom of Information Act, Government employees,
Reporting and recordkeeping requirement, Subpoenas.
By the National Credit Union Administration Board on October 22,
1997.
Hattie Ulan,
Acting Secretary of the Board.
For the reasons set forth in the preamble, NCUA proposes to amend
12 CFR part 792 as set forth below:
PART 792--[AMENDED]
1. The authority citation for part 792 is revised to read as
follows:
Authority: 5 U.S.C. 301, 552, 552a, 552b; 12 U.S.C. 1752a(d),
1766, 1789, 1795f; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p.
235; E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333.
2. Amend Sec. 792.4 to remove paragraph (b)(3) and revise paragraph
(a) to read as follows:
Sec. 792.4 Release of exempt records.
(a) Prohibition against disclosure. Except as provided in paragraph
(b) of this section and subpart C of this part, no officer, employee,
or agent of NCUA or of any federally-insured credit union shall
disclose or permit the disclosure of any exempt records of the Agency
to any person other than those NCUA or credit union officers,
employees, or agents properly entitled to such information for the
performance of their official duties.
* * * * *
3. Revise subpart C of part 792 to read as follows:
Subpart C--Production of Nonpublic Records and Testimony of NCUA
Employees in Legal Proceedings
Sec.
792.40 What does this subpart prohibit?
792.41 When does this subpart apply?
792.42 How do I request nonpublic records or testimony?
792.43 What must my written request contain?
792.44 When should I make a request?
792.45 Where do I send my request?
792.46 What will the NCUA do with my request?
792.47 If my request is granted, what fees apply?
792.48 If my request is granted, what restrictions may apply?
792.49 Definitions.
Subpart C--Production of Nonpublic Records and Testimony of NCUA
Employees in Legal Proceedings
Sec. 792.40 What does this subpart prohibit?
This subpart prohibits the release of nonpublic records or the
appearance of an NCUA employee to testify in legal proceedings except
as provided in this subpart. Any person possessing nonpublic records
may release them or permit their disclosure only as provided in this
subpart.
(a) Duty of NCUA employees. (1) If an NCUA employee is served with
a subpoena requiring him or her to appear as a witness or produce
records, the employee must promptly notify the Office of General
Counsel. The General Counsel has the authority to instruct NCUA
employees to refuse appearing as a witness or to withhold nonpublic
records. The General Counsel may let an NCUA employee provide
testimony, including expert or opinion testimony, if the General
Counsel determines that the need for the testimony clearly outweighs
contrary considerations.
(2) If a court or other appropriate authority orders or demands
expert or opinion testimony or testimony beyond authorized subjects
contrary to the General Counsel's instructions, an NCUA employee must
immediately notify the General Counsel of the order and respectfully
decline to comply. An NCUA employee must decline to answer questions on
the grounds that this subpart forbids such disclosure and should
produce a copy of this subpart, request an opportunity to consult with
the Office of General Counsel, and explain that providing such
testimony without approval may expose him or her to disciplinary or
other adverse action.
(b) Duty of persons who are not NCUA employees. (1) If you are not
an NCUA employee but have custody of nonpublic records and are served
with a subpoena requiring you to appear as a witness or produce
records, you must promptly notify the NCUA about the subpoena. Also,
you must notify the issuing court or authority and the person or entity
for whom the subpoena was issued of the contents of this subpart.
Notice to the NCUA is made by sending a copy of the subpoena to the
General Counsel of the NCUA, Office of General Counsel, 1775 Duke
Street, Alexandria, Virginia 22314-3428. After receiving notice, the
NCUA may advise the issuing court or authority and the person or entity
for whom the subpoena was issued that this subpart applies and, in
addition, may intervene, attempt to have the subpoena quashed or
withdrawn, or register appropriate objections.
(2) After notifying the Office of General Counsel, you should
respond to a subpoena by appearing at the time and place stated in the
subpoena. Unless authorized by the General Counsel, you should decline
to produce any records or give any testimony, basing your refusal on
this subpart. If the issuing court or authority orders the disclosure
of records or orders you to testify, you should continue to decline to
produce records or testify and should advise the Office of General
Counsel.
(c) Penalties. Anyone who discloses nonpublic records or gives
testimony related to those records, except as expressly authorized by
the NCUA or as ordered by a federal court after NCUA has had the
opportunity to be heard, may face the penalties provided in 18 U.S.C.
641 and other applicable laws. Also, former NCUA employees, in addition
to the prohibition contained in this subpart, are subject to the
restrictions and penalties of 18 U.S.C. 207.
Sec. 792.41 When does this subpart apply?
This subpart applies if you want to obtain nonpublic records or
testimony of an NCUA employee for legal proceedings. It doesn't apply
to the release of records under the Freedom of Information Act (FOIA),
5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a, or the release of
records to federal or state investigatory agencies under
Sec. 792.4(b)(2).
Sec. 792.42 How do I request nonpublic records or testimony?
(a) To request nonpublic records or the testimony of an NCUA
employee, you must submit a written request to the General Counsel of
the NCUA. If you serve a subpoena on the NCUA or an NCUA employee
before submitting a written request and receiving a final
determination, the NCUA will oppose the subpoena on the grounds that
you failed to follow the requirements of this subpart. You may serve a
subpoena as long as it is accompanied by a written request that
complies with this subpart.
(b) To request nonpublic records that are part of the records of
the Office of the Inspector General or the testimony of an NCUA
employee on matters within the knowledge of the NCUA employee as a
result of his or her employment with the Office of the Inspector
General, you must submit a written request to the Office of the
Inspector General. Your request will be handled in accordance with the
provisions of this subpart except that the Inspector General will be
[[Page 56055]]
responsible for those determinations that would otherwise be made by
the General Counsel.
Sec. 792.43 What must my written request contain?
Your written request for records or testimony must include:
(a) The caption of the legal proceeding, docket number, and name of
the court or other authority involved.
(b) 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.
(c) 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.
(d) A statement as to how the need for the information outweighs
the need to maintain the confidentiality of the information and
outweighs the burden on the NCUA to produce the records or provide
testimony.
(e) A statement indicating that the information sought is not
available from another source, such as a credit union's own books and
records, other persons or entities, or the testimony of someone other
than an NCUA employee, for example, retained experts.
(f) A description of all prior decisions, orders, or pending
motions in the case that bear upon the relevance of the records or
testimony you want.
(g) The name, address, and telephone number of counsel to each
party in the case.
(h) An estimate of the amount of time you anticipate that you and
other parties will need with each NCUA employee for interviews,
depositions, or testifying.
Sec. 792.44 When should I make a request?
You should submit your request at least 45 days before the date
that you need the records or testimony. If you want to have your
request processed in less time, you must explain why you couldn't
submit the request earlier and why you need expedited processing. If
you are requesting the testimony of an NCUA employee, the NCUA expects
you to anticipate your need for the testimony in sufficient time to
obtain it by a deposition. The General Counsel may deny a request for
testimony at a legal proceeding unless you explain why you could not
use deposition testimony. The General Counsel will determine the
location of a deposition taking into consideration the NCUA's interest
in minimizing the disruption for an NCUA employee's work schedule and
the costs and convenience of other persons attending the deposition.
Sec. 792.45 Where do I send my request?
You must send your request or subpoena for records or testimony to
the attention of the General Counsel for the NCUA, Office of General
Counsel, 1775 Duke Street, Alexandria, Virginia 22314-3428. You must
send your request or subpoena for records or testimony from the Office
of the Inspector General to the attention of the NCUA Inspector
General, 1775 Duke Street, Alexandria, Virginia 22314-3428.
Sec. 792.46 What will the NCUA do with my request?
(a) Factors the NCUA will consider. The NCUA may consider various
factors in reviewing a request for nonpublic records or testimony of
NCUA employees, including:
(1) Whether disclosure would assist or hinder the NCUA in
performing its statutory duties or use NCUA resources unreasonably,
including whether responding to the request will interfere with NCUA
employees' ability to do their work.
(2) Whether disclosure is necessary to prevent the perpetration of
a fraud or other injustice in the matter or if you can get the records
or testimony you want from sources other than the NCUA.
(3) Whether the request is unduly burdensome.
(4) Whether disclosure would violate a statute, executive order, or
regulation, for example, the Privacy Act, 5 U.S.C. 552a.
(5) Whether disclosure would reveal confidential, sensitive or
privileged information, trade secrets or similar, confidential
commercial or financial information, or would otherwise be
inappropriate for release and, if so, whether a confidentiality
agreement or protective order as provided in Sec. 792.48(a) can
adequately limit the disclosure.
(6) Whether the disclosure would interfere with law enforcement
proceedings, compromise constitutional rights, or hamper NCUA research
or investigatory activities.
(7) Whether the disclosure could result in NCUA appearing to favor
one litigant over another.
(8) Any other factors the NCUA determines to be relevant to the
interests of the NCUA.
(b) Review of your request. The NCUA will process your request in
the order it is received. The NCUA will try to respond to your request
within 45 days, but this may vary depending on the scope of your
request.
(c) Final determination. The General Counsel makes the final
determination on requests for nonpublic records or NCUA employee
testimony. All final determinations are in the sole discretion of the
General Counsel. The General Counsel will notify you and the court or
other authority of the final determination of your request. In
considering your request, the General Counsel may contact you to inform
you of the requirements of this subpart, ask that the request or
subpoena be modified or withdrawn, or may try to resolve the request or
subpoena informally without issuing a final determination. You may seek
judicial review of the final determination under the Administrative
Procedure Act. 5 U.S.C. 702.
Sec. 792.47 If my request is granted, what fees apply?
(a) Generally. You must pay any fees associated with complying with
your request, including copying fees for records and witness fees for
testimony. The General Counsel may condition the production of records
or appearance for testimony upon advance payment of a reasonable
estimate of the fees.
(b) Fees for records. You must pay all fees for searching,
reviewing and duplicating records produced in response to your request.
The fees will be the same as those charged by the NCUA under its
Freedom of Information Act regulations, Sec. 792.5.
(c) Witness fees. You must pay the fees, expenses, and allowances
prescribed by the court's rules for attendance by a witness. If no such
fees are prescribed, the local federal district court rule concerning
witness fees, for the federal district court closest to where the
witness appears, will apply. For testimony by current NCUA employees,
you must pay witness fees, allowances, and expenses to the General
Counsel by check made payable to the ``National Credit Union
Administration'' within 30 days from receipt of NCUA's billing
statement. For the testimony of a former NCUA employee, you must pay
witness fees, allowances, and expenses directly to the former employee,
in accordance with 28 U.S.C. 1821 or other applicable statutes.
(d) Certification of records. The NCUA may authenticate or certify
records to facilitate their use as evidence. If you require
authenticated records, you must request certified copies 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 $5.00
per document.
(e) Waiver of fees. A waiver or reduction of any fees in connection
with the testimony, production, or
[[Page 56056]]
certification or authentication of records may be granted in the
discretion of the General Counsel. Waivers will not be granted
routinely. If you request a waiver, your request for records or
testimony must state the reasons why a waiver should be granted.
Sec. 792.48 If my request is granted, what restrictions apply?
(a) Records. The General Counsel may impose conditions or
restrictions on the release of nonpublic records, including a
requirement that you obtain a protective order or execute a
confidentiality agreement with the other parties in the legal
proceeding that limits access to and any further disclosure of the
nonpublic records. The terms of a confidentiality agreement or
protective order must be acceptable to the General Counsel. In cases
where protective orders or confidentiality agreements have already been
executed, the NCUA may condition the release of nonpublic records on an
amendment to the existing protective order or confidentiality
agreement.
(b) Testimony. The General Counsel may impose conditions or
restrictions on the testimony of NCUA employees, including, for
example, limiting the areas of testimony or requiring you and the 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 you requested
the testimony. The General Counsel may also require you to provide a
copy of the transcript of the testimony to the NCUA at your expense.
Sec. 792.49 Definitions.
Legal proceedings means any matter before any federal, state or
foreign administrative or judicial authority, including courts,
agencies, commissions, boards or other tribunals, involving such
proceedings as lawsuits, licensing matters, hearings, trials,
discovery, investigations, mediation or arbitration. When the NCUA is a
party to a legal proceeding, it will be subject to the applicable rules
of civil procedure governing production of documents and witnesses,
however, this subpart will still apply to the testimony of former NCUA
employees.
NCUA employee means current and former officials, members of the
Board, officers, directors, employees and agents of the National Credit
Union Administration, including contract employees and consultants and
their employees. This definition does not include persons who are no
longer employed by the NCUA and are retained or hired as expert
witnesses or agree to testify about general matters, matters available
to the public, or matters with which they had no specific involvement
or responsibility during their employment.
Nonpublic records means any NCUA records that are exempt from
disclosure under Sec. 792.3, the NCUA regulations implementing the
provisions of the Freedom of Information Act. For example, this means
records created in connection with NCUA's examination and supervision
of insured credit unions, including examination reports, internal
memoranda, and correspondence, and, also, records created in connection
with NCUA's enforcement and investigatory responsibilities.
Subpoena means any order, subpoena for records or other tangible
things or for testimony, summons, notice or legal process issued in a
legal proceeding.
Testimony means any written or oral statements made by an
individual in connection with a legal proceeding including personal
appearances in court or at depositions, interviews in person or by
telephone, responses to written interrogatories or other written
statements such as reports, declarations, affidavits, or certifications
or any response involving more than the delivery of records.
[FR Doc. 97-28585 Filed 10-28-97; 8:45 am]
BILLING CODE 7535-01-P
