98-32810. Production of Nonpublic Records and Testimony of OPIC Employees in Legal Proceedings  

  • [Federal Register Volume 63, Number 237 (Thursday, December 10, 1998)]
    [Proposed Rules]
    [Pages 68213-68217]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 98-32810]
    
    
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    OVERSEAS PRIVATE INVESTMENT CORPORATION
    
    22 CFR Parts 706 and 713
    
    RIN 3420-AA02
    
    
    Production of Nonpublic Records and Testimony of OPIC Employees 
    in Legal Proceedings
    
    AGENCY: Overseas Private Investment Corporation.
    
    ACTION: Notice of proposed rulemaking.
    
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    SUMMARY: OPIC proposes to establish rules regarding subpoenas seeking 
    nonpublic records or the testimony of OPIC employees in legal 
    proceedings. The proposed rule facilitates access to records in OPIC's 
    custody by centralizing agency decision-making with respect to demands 
    for records or testimony in such legal proceedings. The proposed rule 
    provides procedures, requirements and information on how OPIC will 
    handle these matters and expressly prohibits any disclosure or 
    testimony except as provided by the proposed rule. The effect of the 
    rule will be, among other benefits, to ensure an efficient use of OPIC 
    resources, promote uniformity in decisions, protect confidential 
    information, maintain agency control over the release of official 
    information, protect the interests of the United States, and provide 
    guidance to parties. The proposed rule will also amend the current rule 
    regarding release of OPIC records which are exempt from disclosure 
    under the Freedom of Information Act, to conform with the procedures 
    provided in this proposed rule.
    
    DATES: Submit comments on or before February 8, 1999.
    
    ADDRESSES: Direct comments to Mitchel Neurock, Counsel for 
    Administrative Affairs. Mail or hand-deliver comments to: Overseas 
    Private Investment Corporation, 1100 New York Avenue, NW, Washington, 
    DC 20527. Fax comments to (202) 408-0297. E-mail comments to 
    mneur@opic.gov. Please send comments via one method only.
    
    FOR FURTHER INFORMATION CONTACT: Mitchel Neurock, Counsel for 
    Administrative Affairs, at (202) 336-8400.
    
    SUPPLEMENTARY INFORMATION:
    
    Background
    
        OPIC receives subpoenas and requests for OPIC employees to provide 
    evidence in legal proceedings. Typically, subpoenas are for OPIC 
    records which are not available to the public under the Freedom of 
    Information Act (FOIA). Also, OPIC receives subpoenas and requests for 
    OPIC employees to appear as witnesses in legal proceedings in 
    conjunction with requests for nonpublic records or to provide 
    testimony.
        In recent years, the number of requests has averaged 3 to 4 per 
    year. Often, these subpoenas and requests relate to litigation 
    involving projects financed and/or insured in whole or in part by OPIC, 
    where one or more parties want to use nonpublic records, such as OPIC 
    financing documents, in the case. In addition, parties to litigation 
    frequently wish to have an OPIC employee, often a finance or insurance 
    officer, testify to establish the authenticity of the records or to 
    explain the information contained in those records. If OPIC provides 
    these records and an OPIC employee appears as a witness, this will 
    cause a significant disruption in the employee's work schedule. In many 
    cases, parties want to use the OPIC employee as an expert witness on 
    matters such as the fundamentals of project finance or other issues 
    involving opinion evidence. OPIC's experience has been that, in 
    practically all cases, the parties can address these issues by 
    eliciting the testimony of other witnesses, including the testimony of 
    their own independent expert witnesses. They may also use their own 
    records.
        OPIC's current regulations fail to inform parties about any matter 
    concerning submission of subpoenas. There is no guidance for parties 
    seeking to submit subpoenas addressing when parties should submit a 
    request for nonpublic documents or testimony, the time period for 
    OPIC's review of such a request, potential fees, or, if a request is 
    granted, any restrictions which OPIC might place upon the disclosure of 
    records or the appearance of an OPIC employee as a witness. There is 
    also no guidance for parties about the factors OPIC will consider in 
    making its determination in response to such requests.
        The proposed rule fills in these gaps in OPIC's current 
    regulations. OPIC has tried to write the proposed rule in an easy-to-
    read, question-and-answer format, to promote straightforward English. 
    The proposed rule, in brief: prohibits disclosure of nonpublic records 
    or testimony by OPIC employees absent compliance with the rule; lets 
    the public know what information to submit and what factors OPIC will 
    consider; and sets out filing fees, deadlines and potential 
    restrictions on disclosure of nonpublic documents and testimony of OPIC 
    employees. The proposed charges for witnesses are the same as those 
    provided by the federal courts, and the fees relating to the production 
    of records are the same as those charged under FOIA.
        A few simple definitions clarify that the proposed rule applies to 
    a broad range of cases (not just matters before courts). The proposed 
    rule applies to former as well as to current OPIC employees. Former 
    OPIC employees remain prohibited from testifying about specific matters 
    for which they had responsibility during their OPIC employment, unless 
    permitted to testify as provided in the proposed rule. They would not, 
    however, be barred from appearing on general matters or otherwise 
    employing their expertise (as expert witnesses, for example).
        The proposed rule solves some problems which have arisen in the 
    past. It should eliminate or reduce eleventh hour requests for 
    nonpublic documents or testimony of OPIC employees. The procedures and 
    criteria will ensure a more efficient use of OPIC resources, will 
    minimize the possibility of involving OPIC in issues unrelated to its 
    responsibilities, will promote
    
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    uniformity in responding to such requests, and subpoenas, and will 
    maintain the necessary impartiality of OPIC in matters between private 
    litigants. The proposed rule will serve OPIC's interest in protecting 
    sensitive, confidential and privileged information and records 
    generated by its work.
        The proposed rule is procedural, not substantive. It does not 
    confer a benefit upon anyone. It does not create a right to obtain OPIC 
    records or the testimony of any OPIC employee, past or present, nor 
    does it create any additional right or privilege not already available 
    to OPIC to deny such a request. OPIC makes no waiver of its sovereign 
    immunity by proposing or implementing this rule. Failure to comply with 
    the rule, however, constitutes grounds for OPIC's denial of any 
    request.
        OPIC is most interested in receiving comments on the application of 
    the proposed regulation to former as well as to current employees, 
    including its application to proceedings to which OPIC is a party, the 
    exception from coverage for expert testimony by former OPIC employees, 
    and any other factors which commentors believe OPIC should consider in 
    addition to those set out in Sec. 713.7 in reaching a final decision.
    
    Legal Authority
    
        More than 60 government agencies and departments have promulgated 
    regulations governing the circumstances and manner in which an employee 
    may respond to demands for testimony or production of documents. These 
    regulations, issued under the authority of 5 U.S.C. 301, the so-called 
    ``housekeeping statute,'' are separate from FOIA regulations. In 
    addition, OPIC has statutory authority to ``take such actions as may be 
    necessary or appropriate to carry out the powers'' granted it by 
    Congress. 22 U.S.C. 2199(d).
        The housekeeping statute expressly states that it does not provide 
    a basis for withholding information or limiting the availability of 
    records, but authorizes a head of an executive agency to issue 
    ``regulations for the government of his department, the conduct of its 
    employees, the distribution and performance of its business and the 
    custody, use and preservation of its records, papers, and property.'' 5 
    U.S.C. 301. These regulations are known as ``Touhy regulations,'' 
    thanks to a landmark Supreme Court decision, United States ex rel. 
    Touhy v. Ragen, 340 U.S. 462 (1951).
        Touhy was the first in a long line of cases which have upheld 
    regulations restricting the rights of private litigants to require 
    testimony or production of documents from employees of federal 
    agencies. In Touhy, the Supreme Court held that a Department of Justice 
    (DoJ) official, acting on order of the Attorney General, could not be 
    held in contempt for declining to produce records in response to a 
    subpoena. The Court reasoned that the variety of information contained 
    in the files of any government agency, as well as the possibilities of 
    harm from unrestricted disclosure in court, justify centralized 
    determinations as to whether to obey or challenge a subpoena. The Court 
    stated that it was appropriate for the Attorney General to prescribe 
    regulations for the preservation of DoJ records.
        Federal circuit and district courts have consistently held that a 
    person seeking testimony or records from an agency must comply with 
    that agency's Touhy regulations prior to seeking judicial enforcement 
    of a subpoena. Davis v. Braswell Motor Freight Lines, Inc., 363 F.2d 
    600 (5th Cir. 1966); Colonial Savings and Loan Assoc. v. St. Paul Fire 
    and Marine Ins. Co., 89 F.R.D. 481, 484 (D. Kan. 1980); Marcoux v. Mid-
    States Livestock, 66 F.R.D. 573, 575 n.1 (W.D. Mo. 1975).
        Generally speaking, courts cannot compel an agency employee who is 
    the subject of a subpoena to testify or produce records in violation of 
    the agency's Touhy regulations. Touhy, 340 U.S. at 467-70; United 
    States Steel v. Mattingly, 663 F.2d 68 (10th Cir. 1980). Courts have 
    also upheld regulations which limit federal employees' testifying about 
    purely factual information. Southeastern Pa. Transp. Auth. v. General 
    Motors Corp., 103 F.R.D. 12 (E.D. Pa. 1984); Kline v. Martin, 345 F. 
    Supp. 31 (E.D. Va. 1972). Consequently, a limited or conditional 
    authorization to testify or produce records does not waive an 
    employee's immunity from contempt or compulsion with regard to 
    releasing records or testifying on unauthorized matters. Swett v. 
    Schenk, 792 F.2d 1447, 1451-52 (9th Cir. 1986).
        There is also precedent suggesting that agencies may also restrict 
    the testimony of former employees. Fowkes v. Dravo Corporation, 5 
    F.R.D. 51 (E.D. Pa. 1945). In Fowkes, a former employee and a current 
    employee of the Treasury Department refused to testify or produce 
    documents pursuant to subpoenas, in accordance with instructions from 
    the Deputy Commissioner of Internal Revenue. Because the employees 
    obtained the information while in their official positions, disclosure 
    could not be permitted unless in accordance with a Treasury regulation 
    and a Treasury Department circular. The Fowkes court upheld the 
    Treasury Department's refusal to allow the testimony, at least until 
    the procedures in the Department's circular were followed. The court 
    based its decision on the nature of the information. Thus, it is 
    generally understood that, so long as a former employee acquired the 
    information in an official capacity, persons seeking the former 
    employee's testimony are still required to comply with an agency 
    regulation limiting disclosure or testimony. As noted previously, 
    OPIC's proposed rule will not bar former OPIC employees from serving as 
    expert witnesses; however, former OPIC employees are prohibited from 
    testifying about specific matters for which they had responsibility 
    during their employment, unless permission is granted pursuant to the 
    proposed rule.
        With respect to the cost of processing and responding to requests 
    for records and testimony, an agency may prescribe regulations 
    establishing the charge for a service or thing of value provided by the 
    agency, 31 U.S.C. 9701.
        The proposed rule is not intended to restrict access to records 
    under the Freedom of Information Act (5 U.S.C. 552), the Privacy Act (5 
    U.S.C. 552a), or any other authority. At the same time, nothing in this 
    proposed rule would permit disclosure of information by OPIC or its 
    employees except as provided by statute or other applicable law.
    
    Regulatory Procedures
    
    Regulatory Flexibility Act
    
        The Regulatory Flexibility Act requires OPIC to prepare an analysis 
    to describe any significant economic impact any proposed regulation may 
    have on any small business or other small entity. 5 U.S.C. 602, 603. 
    OPIC has determined and certifies that the proposed rule, if adopted, 
    will not have a significant economic impact on any entity. The reasons 
    for this determination are that the copying and witness fees to be 
    charged to persons 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, OPIC has determined 
    that a Regulatory Flexibility Analysis is not required.
    
    Paperwork Reduction Act
    
        OPIC has determined that this rulemaking is not subject to the 
    Paperwork Reduction Act, because OPIC averages less than 10 requests 
    per year, and expects this level of activity to remain below this 
    threshold. 5 CFR 1320.3(c).
    
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    Executive Order 12612
    
        OPIC has determined that the proposed rule will not have a 
    substantial direct effect on the States, on the relationship between 
    the national government and the States, or on the distribution of power 
    and responsibilities among various levels of government.
    
    List of Subjects in 22 CFR Part 713
    
        Administrative practice and procedure, Confidential business 
    information, Freedom of Information Act, Government employees, 
    Reporting and recordkeeping requirements, Subpoenas.
    
        For the reasons set forth in the preamble, OPIC proposes to amend 
    22 CFR part 706 and add part 713 as set forth below:
    
    PART 706--[AMENDED]
    
        1. The authority citation for part 706 is revised to read as 
    follows:
    
        Authority: The Freedom of Information Act, as amended, 5 U.S.C. 
    552; 5 U.S.C. 301; 22 U.S.C. 2199(d).
    
        2. Amend Sec. 706.22, to redesignate the existing test as paragraph 
    (a). In redesignated paragraph (a), further redesignate paragraphs (a) 
    through (f) as paragraphs (a)(1) through (a)(6). Add paragraph (b) to 
    read as follows:
    
    
    Sec. 706.22  Information and records not generally available to the 
    public.
    
    * * * * *
        (b) Prohibition against disclosure. Except as provided in part 713 
    of this chapter, no officer, employee or agent of OPIC shall disclose 
    or permit the disclosure of any exempt records of OPIC or of any 
    information described in paragraph (a) of this section to any person 
    other than those OPIC officers, employees or agents properly entitled 
    to such information for the performance of their official duties.
        3. Add Part 713 to read as follows:
    
    PART 713--PRODUCTION OF NONPUBLIC RECORDS AND TESTIMONY OF OPIC 
    EMPLOYEES IN LEGAL PROCEEDINGS
    
    Sec.
    713.1  What does this part prohibit?
    713.2  When does this part apply?
    713.3  How do I request nonpublic records or testimony?
    713.4  What must my written request contain?
    713.5  When should I make my request?
    713.6  Where should I send my request?
    713.7  What will OPIC do with my request?
    713.8  If my request is granted, what fees apply?
    713.9  If my request is granted, what restrictions may apply?
    713.10  Definitions.
    
        Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C. 
    702; 18 U.S.C. 207; 18 U.S.C. 641; 22 U.S.C. 2199(d); 28 U.S.C. 
    1821.
    
    
    Sec. 713.1  What does this part prohibit?
    
        This part prohibits the release of nonpublic records or the 
    appearance of an OPIC employee to testify in legal proceedings except 
    as provided in this part. Any person possessing nonpublic records may 
    release them or permit their disclosure only as provided in this part.
        (a) Duty of OPIC employees. (1) If you are an OPIC employee and you 
    are served with a subpoena requiring you to appear as a witness or to 
    produce records, you must promptly notify the Vice-President/General 
    Counsel in the Department of Legal Affairs. The Vice-President/General 
    Counsel has the authority to instruct OPIC employees to refuse to 
    appear as a witness or to withhold nonpublic records. The Vice-
    President/General Counsel may let an OPIC employee provide testimony, 
    including expert or opinion testimony, if the Vice-President/General 
    Counsel determines that the need for the testimony clearly outweighs 
    contrary considerations.
        (2) If a court or other appropriate authority orders or demands 
    from you expert or opinion testimony or testimony beyond authorized 
    subjects contrary to the Vice-President/General Counsel's instructions, 
    you must immediately notify the Vice-President/General Counsel of the 
    order an then respectfully decline to comply with the order. You must 
    decline to answer questions on the grounds that this part forbids such 
    disclosure. You should produce a copy of this part, request an 
    opportunity to consult with the Vice-President/General Counsel, and 
    explain that providing such testimony without approval may expose you 
    to disciplinary or other adverse action.
        (b) Duty of persons who are not OPIC employees. (1) If you are not 
    an OPIC 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 OPIC of the subpoena. Also, you must 
    notify the issuing court or authority and the person or entity for whom 
    the subpoena was issued of the content of this part. Provide notice to 
    OPIC by sending a copy of the subpoena to the Vice-President/General 
    Counsel, OPIC, 1100 New York Avenue, NW, Washington, DC 20527. After 
    receiving notice, OPIC may advise the issuing court or authority and 
    the person or entity for whom the subpoena was issued that this part 
    applies and, in addition, may intervene, attempt to have the subpoena 
    quashed or withdrawn, or register appropriate objections.
        (2) After notifying the Vice-President/General Counsel, respond to 
    a subpoena by appearing at the time and place stated in the subpoena. 
    Unless otherwise authorized by the Vice-President/General Counsel, 
    decline to produce any records or give any testimony, basing your 
    refusal on this part. If the issuing court or authority orders the 
    disclosure of records or orders you to testify, decline to produce 
    records or testify and advise the Vice-President/General Counsel.
        (c) Penalties. Anyone who discloses nonpublic records or gives 
    testimony related to those records, except as expressly authorized by 
    OPIC or as ordered by a federal court after OPIC has had the 
    opportunity to be heard, may face the penalties provided in 18 U.S.C. 
    641 and other applicable laws. Also, former OPIC employees, in addition 
    to the prohibition contained in this part, are subject to the 
    restrictions and penalties of 18 U.S.C. 207.
    
    
    Sec. 713.2  When does this part apply?
    
        This part applies if you want to obtain nonpublic records or 
    testimony of an OPIC employee for a legal proceeding. It does not apply 
    to records that OPIC is required to release under the Freedom of 
    Information Act (FOIA), records that OPIC releases to federal or state 
    investigatory agencies, or records that OPIC is required to release 
    pursuant to the Privacy Act, 5 U.S.C. 552a.
    
    
    Sec. 713.3  How do I request nonpublic records or testimony?
    
        To request nonpublic records or the testimony of an OPIC employee, 
    you must submit a written request to the Vice-President/General Counsel 
    of OPIC. If you serve a subpoena on OPIC or an OPIC employee before 
    submitting a written request and receiving a final determination, OPIC 
    will oppose the subpoena on the grounds that you failed to follow the 
    requirements of this part. You may serve a subpoena as long as it is 
    accompanied by a written request that complies with this part.
    
    
    Sec. 713.4  What must my written request contain?
    
        Your written request for records or testimony must include:
        (a) The caption of the legal procedure, 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
    
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    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 OPIC to produce the records or provide 
    testimony.
        (e) A statement indicating that the information sought is not 
    available from another source, such as the requestor's own books and 
    records, other persons or entities, or the testimony of someone other 
    than an OPIC employee, such as 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 OPIC employee for interviews, 
    depositions, and/or testimony.
    
    
    Sec. 713.5  When should I make a request?
    
        Submit your request at least 45 days before the date you need the 
    records or testimony. If you want your request processed in a shorter 
    time, you must explain why you could not submit the request earlier and 
    why you need such expedited processing. If you are requesting the 
    testimony of an OPIC employee, OPIC expects you to anticipate your need 
    for the testimony in sufficient time to obtain it by deposition. The 
    Vice-President/General Counsel may well deny a request for testimony at 
    a legal proceeding unless you explain why you could not have used 
    deposition testimony instead. The Vice-President/General Counsel will 
    determine the location of a deposition, taking into consideration 
    OPIC's interest in minimizing the disruption for an OPIC employee's 
    work schedule and the costs and convenience of other persons attending 
    the deposition.
    
    
    Sec. 713.6  Where should I send my request?
    
        Send your request or subpoena for records or testimony to the 
    attention of the Vice-President/General Counsel, OPIC, 1100 New York 
    Avenue NW, Washington, DC 20527.
    
    
    Sec. 713.7  What will OPIC do with my request?
    
        (a) Factors OPIC will consider. OPIC may consider various factors 
    in reviewing a request for nonpublic records or testimony of OPIC 
    employees, including:
        Whether disclosure would assist or hinder OPIC in performing its 
    statutory duties or use OPIC resources unreasonably, including whether 
    responding to the request will interfere with OPIC 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 OPIC.
        (3) Whether the request is unduly burdensome.
        (4) Whether disclosure would violate a statute, executive order, or 
    regulation, such as 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. 713.9(a) can 
    adequately limit the disclosure.
        (6) Whether the disclosure would interfere with law enforcement 
    proceedings, compromise constitutional rights, or hamper OPIC programs 
    or other OPIC operations.
        (7) Whether the disclosure could result in OPIC's appearing to 
    favor one litigant over another.
        (8) Any other factors OPIC determines to be relevant to the 
    interests of OPIC.
        (b) Review of your request. OPIC will process your request in the 
    order it is received. OPIC 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 Vice-President/General Counsel makes 
    the final determination on requests for nonpublic records or OPIC 
    employee testimony. All final determinations are in the sole discretion 
    of the Vice President/General Counsel. The Vice-President/General 
    Counsel will notify you and the court or other authority of the final 
    determination of your request. In considering your request, the Vice-
    President/General Counsel may contact you to inform you of the 
    requirements of this part, 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. 713.8  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 Vice-President/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 OPIC under its Freedom of 
    Information Act regulations, Sec. 706.26 of this chapter.
        (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 OPIC employees, 
    you must pay witness fees, allowances, and expenses to the Vice-
    President/General Counsel by check made payable to the ``Overseas 
    Private Investment Corporation'' within 30 days from receipt of OPIC's 
    billing statement. For the testimony of a former OPIC 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. OPIC 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. Send your request to the 
    Vice-President/General Counsel. OPIC will charge you 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 certification or authentication of 
    records may be granted in the discretion of the Vice-President/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. 713.9  If my request is granted, what restrictions may apply?
    
        (a) Records. The Vice-President/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
    
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    and any further disclosure of the nonpublic records. The terms of a 
    confidentiality agreement or protective order must be acceptable to the 
    Vice-President/General Counsel. In cases where protective orders or 
    confidentiality agreements have already been executed, OPIC may 
    condition the release of nonpublic records on an amendment to the 
    existing protective order or confidentiality agreement.
        (b) Testimony. The Vice-President/General Counsel may impose 
    conditions or restrictions on the testimony of OPIC 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 Vice-President/General Counsel may also 
    require you to provide a copy of the transcript of the testimony to 
    OPIC at your expense.
    
    
    Sec. 713.10  Definitions.
    
        For purposes of this part:
        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 OPIC 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 part will still apply to the testimony of former OPIC 
    employees.
        Nonpublic records means any OPIC records which are exempt from 
    disclosure by statute or under part 706 of this chapter, OPIC's 
    regulations implementing the provisions of the Freedom of Information 
    Act. For example, this means records created in connection with OPIC's 
    receipt, evaluation and action on actual and proposed OPIC finance 
    projects and insurance policies (whether such projects or policies were 
    canceled or not), including all reports, internal memoranda, opinions, 
    interpretations, and correspondence, whether prepared by OPIC employees 
    or by persons under contract, as well as confidential business 
    information submitted by parties seeking to do business with OPIC. 
    Whether OPIC has actually chosen in practice to apply any exemption to 
    specific documents is irrelevant to the question of whether they are 
    ``nonpublic'' for the purposes of this part.
        OPIC employee means current and former officials, members of the 
    Board of Directors, officers, directors, employees and agents of the 
    Overseas Private Investment Corporation, including contract employees, 
    consultants and their employees. This definition does not include 
    persons who are no longer employed by OPIC 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.
        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.
    
        Dated: December 4, 1998.
    Michael C. Cushing,
    Managing Director for Administration.
    [FR Doc. 98-32810 Filed 12-9-98; 8:45 am]
    BILLING CODE 3210-01-M
    
    
    

Document Information

Published:
12/10/1998
Department:
Overseas Private Investment Corporation
Entry Type:
Proposed Rule
Action:
Notice of proposed rulemaking.
Document Number:
98-32810
Dates:
Submit comments on or before February 8, 1999.
Pages:
68213-68217 (5 pages)
RINs:
3420-AA02
PDF File:
98-32810.pdf
CFR: (11)
22 CFR 706.22
22 CFR 713.1
22 CFR 713.2
22 CFR 713.3
22 CFR 713.4
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