[Federal Register Volume 60, Number 103 (Tuesday, May 30, 1995)]
[Rules and Regulations]
[Pages 28027-28033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-12967]
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Rules and Regulations
Federal Register
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having general applicability and legal effect, most of which are keyed
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Federal Register / Vol. 60, No. 103 / Tuesday, May 30, 1995 / Rules
and Regulations
[[Page 28027]]
DEPARTMENT OF THE TREASURY
Office of Thrift Supervision
12 CFR Parts 506, 510
[No. 95-100]
RIN 1550-AA66
Release of Unpublished Information
AGENCY: Office of Thrift Supervision, Treasury.
ACTION: Final rule.
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SUMMARY: The Office of Thrift Supervision (OTS) is issuing its final
regulation pertaining to the release of unpublished OTS information.
The rule is based upon the OTS's experience and practices developed
during the last five years in responding to the large volume of
requests by the public for unpublished OTS information.
The final rule describes the procedures that requesters must follow
in requesting the release of unpublished information by document or
testimony and the criteria on which the OTS will evaluate requests for
unpublished information. The records covered include those created or
obtained in connection with the OTS's performance of its statutory
responsibilities, such as supervision, regulation, examination, and law
enforcement duties.
EFFECTIVE DATE: July 1, 1995.
FOR FURTHER INFORMATION CONTACT: Valerie J. Lithotomos, Counsel
(Banking and Finance), (202) 906-6439, Regulations and Legislation
Division; Donna Miller, Program Manager, (202) 906-7488, Affiliates
Programs; Francis Raue, Program Analyst, (202) 906-5750, Thrift Policy;
Office of Thrift Supervision, 1700 G Street NW., Washington, DC 20552.
SUPPLEMENTARY INFORMATION:
I. Background
The OTS is today issuing a final rule amending its current rule
concerning the release of unpublished information.1 The final rule
includes requests for release of records that are exempt from
disclosure under the Freedom of Information Act (FOIA), such as
examination and related reports, information relating to the business
operations and finances of individual savings associations, savings and
loan holding companies, other affiliates, and their customers, and
information compiled in connection with the OTS's enforcement
investigations. It also includes requests for testimony. The testimony
covered in the final rule includes requests for current and former OTS
employees, officers, and agents (and for former employees, officers and
agents of the OTS's predecessor, the Federal Home Loan Bank Board) to
testify in judicial and administrative proceedings, including
depositions and informal interviews, about information obtained in
their official OTS capacities.
\1\ The OTS's authority to govern the custody and use of its
records and the testimony of its personnel derives from 12 U.S.C.
1462a, 1463(a) 1464 and 5 U.S.C. 301. In particular, section
1462a(b)(2) authorizes the Director of the OTS to prescribe such
regulations as he may determine to be necessary for carrying out his
responsibilities. Also, section 301 authorizes an agency head to
prescribe regulations governing the conduct of its employees and the
custody, use and preservation of its records.
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The final rule in no way affects the rights and procedures
governing access to records that are required under the FOIA. Indeed,
the final rule does not apply to requests for records under the FOIA;
FOIA requests remain governed by Part 505 of the OTS's regulations and
the Treasury Department's FOIA regulations. However, the final rule may
permit the OTS to make records available that are exempt from
disclosure under the FOIA.
The final rule provides that in considering requests for disclosure
of unpublished information, the OTS must weigh carefully the need
demonstrated by a member of the public for access to the OTS's records
and testimony against the public interest in maintaining the
confidentiality of the unpublished information. Among the factors the
OTS will consider in weighing the public interest in confidentiality is
the impact on the OTS's supervisory, examination, and enforcement
responsibilities of releasing such information. The OTS will balance
these and other appropriate considerations with a requester's interest
and expressed need in obtaining such information.
While the vast majority of requests for unpublished records and
testimony arise in the course of litigation to which the OTS is not a
party, this final rule also provides for the evaluation of requests
that arise in a non-litigation context. A non-litigation request must
demonstrate as great a need for release of the information as that
shown by a request made in the course of litigation.
In addition, the final rule, for the first time, authorizes savings
associations to release their examination reports and related
supervisory correspondence to their holding companies, and similarly
authorizes holding companies to release their examination reports and
related supervisory correspondence to their subsidiary savings
associations. Also, reports and other information released under this
rule remain the property of the OTS, regardless of where such reports
or information are physically located.
The final rule also provides for the imposition of fees for
searches for records, copying, certifications and witness fees and
allowances.
A. Revisions to Existing Section 510.5
The final rule completely revises much of existing 12 CFR 510.5. In
particular, the final rule adds detailed procedures for the public to
follow in requesting release of unpublished OTS information and
describes criteria on which the OTS will evaluate such requests. Also,
as noted above, the final rule for the first time authorizes savings
associations to release their examination reports and related
supervisory correspondence to their parent holding companies, and
similarly authorizes holding companies to release their examination
reports and related supervisory correspondence to their subsidiary
savings associations. The final rule also provides for reimbursement to
the OTS for producing records and witnesses. A more detailed
description, section by section, of the revisions made to current
Sec. 510.5 is contained below in ``B. Description of the Proposal''.
B. Description of the Proposal
On December 9, 1993, the OTS published in the Federal Register a
[[Page 28028]] notice of proposed rulemaking describing amendments to
its current Sec. 510.5. 58 FR 64695 (December 9, 1993).2 The
public comment period closed on February 7, 1994. The proposal is
described section by section below:
\2\ The reader is also directed to the preamble discussion in
the proposal for a more detailed discussion of the background of
this regulation.
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Section 510.5(a): Paragraph (a) identifies the types of requests
covered under this rule. This paragraph provides that the rule applies
to requests from the public for unpublished OTS information; the term
``unpublished information'' includes records and testimony. The covered
records include those created or obtained in connection with the OTS's
performance of its responsibilities such as its supervisory,
regulatory, examination, and enforcement-related duties. The covered
testimony includes that of present and former employees, officers, and
agents for information obtained in their official OTS capacities. The
paragraph states that this rule does not apply to records required to
be released under the FOIA, nor does it apply to requests for
information by other government agencies or requests for information
that arise in proceedings in which the OTS is a party.
Section 510.5(b): Paragraph (b) sets out the purpose of this
regulation. The purpose of this rule is to provide an orderly mechanism
for expeditiously processing requests for OTS's unpublished information
while preserving the OTS's need to maintain confidentiality of certain
information.
Section 510.5(c): Paragraph (c) describes the procedures that must
be followed when making a request for unpublished OTS information.
Paragraph (1) describes general procedures that apply to all requests
by members of the public for unpublished information (i.e., records and
testimony). It sets forth the types of information that must be
contained in such requests, including a showing by the requester that
the information sought is highly relevant to the purpose for which it
is sought. In addition, the requester must demonstrate that the
information requested is not available from another source. The
requester must also demonstrate that the need for such information
clearly outweighs the need to maintain the confidentiality of OTS
unpublished information and the burden on the OTS in producing the
information, such as the disruption to the OTS's supervisory and other
responsibilities that is occasioned by reviewing a large volume of
records and loss to the OTS of the services of employees while they
testify at depositions or hearings. This paragraph also requires a
requester who seeks a response in less than 30 days to include an
explanation of why the request was not submitted earlier and why the
expedited handling of the request is necessary.
Paragraphs (2) and (3) set forth additional requirements for
certain types of requests. Paragraph (2) pertains to requests for
records. It requires that requesters of unpublished OTS records
specifically list the types and categories of records sought and the
relevant time period. Paragraph (3) describes special requirements for
requests for testimony from OTS employees. This paragraph states that
requests for testimony by OTS employees or former employees must
specifically describe the substance of the testimony sought and show a
compelling need for the testimony. Such requests shall also include a
demonstration that the information sought is not available from any
other source. This paragraph also prohibits OTS employees from
testifying as expert witnesses for private parties, requests that
litigants anticipate their need for OTS testimony in time for such
testimony to be taken in deposition form, and states that the OTS shall
specify the scope of any authorized testimony.
Paragraph (4) specifies that unpublished OTS information made
available to savings associations, state and Federal agencies and
requesters shall remain the property of the OTS and shall not be
disclosed to any other party without OTS authorization. In addition,
the paragraph authorizes a savings association to provide a copy of its
examination report and related supervisory correspondence to parent
holding companies. Similarly, a savings and loan holding company is
authorized to provide a copy of its examination report and related
supervisory correspondence to its subsidiary savings association(s)
without further authorization from the OTS.
Paragraph (5) provides that requests for unpublished OTS
information shall be sent to the OTS at 1700 G Street, NW., Washington,
D.C. 20552, to the attention of the Corporate Secretary.
Section 510.5(d): Paragraph (d) describes the process by which the
OTS will consider requests for unpublished information, both records
and testimony, and the factors the OTS may consider in denying such
requests.
Section 510.5(e): Paragraph (e) sets forth restrictions on the
dissemination of unpublished OTS information. Paragraph (1) provides
that except as authorized by this regulation or as otherwise authorized
by the Director or his delegate, no current or former OTS employee may
disclose any unpublished OTS information to anyone other than an
employee or agent of the OTS properly entitled to such information for
the performance of their official duties.
Paragraph (2) requires any person with unpublished OTS information
who is served with a subpoena, order, or other process requiring their
attendance as a witness or for production of records, to advise the
issuer of such notice of the substance of this regulation. In addition,
this paragraph prohibits any person with unpublished OTS information
from disclosure of such information in response to a subpoena without
prior OTS authorization.
Paragraph (3) provides that if a person is required to appear in
response to a subpoena or other legal process and is asked to disclose
unpublished OTS information, that person shall decline to produce such
information or give any testimony concerning such information. Upon
receiving such a request or subpoena to testify, the individual is
required to contact promptly the OTS Litigation Division.
Paragraph (4) specifies that the possession of unpublished OTS
information by savings associations, their holding companies, and state
and Federal agencies shall not waive any privilege the OTS might have
to such information.
Section 510.5(f): Paragraph (f) imposes requirements to protect the
confidentiality of unpublished OTS information that is made available
to requesters. Paragraph (1) provides that the release of records will
normally be conditioned upon entry of an acceptable protective order by
the court or administrative tribunal presiding in a particular case or,
in non-litigated matters, upon execution of an acceptable
confidentiality agreement. Paragraph (2) states that the OTS may
condition its authorization of deposition testimony on an agreement of
the parties that the transcript of the testimony shall remain
confidential. This paragraph also requires the party who requested the
testimony to furnish the OTS with a copy of the transcript of the
testimony at its expense.
Section 510.5(g): Paragraph (g) sets forth procedures designed to
limit the burden on the OTS in connection with releasing records.
Paragraph (1) states that requesters who require authenticated records
should request certified copies at least 30 days prior to the date the
records are needed. [[Page 28029]] Paragraph (2) specifies the
responsibility of litigants to share and safeguard OTS records. This
paragraph provides that the party to whom records are released has the
responsibility of notifying the other parties, providing them with
copies of the records, retrieving any records from the court's file
when they are no longer required, and returning such records to the
OTS.
Section 510.5(h): Paragraph (h) sets forth the fees for records
searches, records copying and records certification. Specifically, it
provides that the fees charged to the requester of OTS records shall be
the fees set forth in the Treasury Department regulations, 31 CFR 1.7.
Paragraph (2) requires that witness fees and allowances will be paid by
the requester of testimony of current OTS employees in accordance with
28 U.S.C. 1821.
II. Summary of Comments
A. General Summary
The OTS received a total of 20 letters of comment from 4 types of
sources. Those who submitted comments included 14 savings associations;
5 trade associations; 1 co-operative savings bank; and 1 holding
company (one thrift submitted its comment letter on behalf of itself
and its parent holding company).
Generally, several commenters expressed concern that the proposed
rule would have a ``chilling effect'' on the examination process. They
asserted that the possibility that the OTS might subsequently release
information provided in an examination may impede the free flow of
information from a savings association to the OTS examiners. Some
commenters expressed concern that the proposal was an impermissible
expansion of the FOIA and urged that deviations from the FOIA
requirements be considered cautiously. Also, five commenters supported
the portion of the proposal permitting holding companies to release
their examination reports to their thrifts and thrifts to release
examination reports to their holding companies.
B. Specific Issues Discussion
1. Possible ``Chilling Effect'' on Examination Process
Several commenters speculated that this rule will be detrimental to
the industry in that it will inhibit cooperation and candid
communication between savings associations and the OTS examiners.
Certain of these commenters stated that the examination process and the
supervisory process would be adversely affected by this rule because
institutions may attempt to protect confidential information which
could reasonably be expected to harm the institution if disclosed.
The commenters did not point to any particular situation where such
problems have arisen. In fact, OTS has been following these practices
for several years, and its experience indicates that the integrity of
the examination process will not in any way be compromised by this
rule. In hundreds of instances OTS has produced non-public information
about institutions in response to demands made by litigants in law
suits in which OTS is not a party (``third-party litigation''). In
responding to such requests, OTS has developed a practice over a period
of five years, which is incorporated into this regulation, that
balances confidentiality concerns with the disclosure obligations in
the Federal Rules of Civil Procedure. (Under the Federal Rules of Civil
Procedure, a litigant is generally entitled to discover non-privileged
relevant information.) Specifically, in responding to a request for
release of non-public information, OTS considers the following three
factors: (1) The relevance of the information, (2) the availability of
the information from other sources and (3) whether the need for the
information outweighs the need to keep it confidential and the burden
on OTS. These criteria are set forth in the regulation issued today.
Sec. 510.5(c)(1). Further, in keeping with existing practice, the
regulation provides that if OTS grants a request for disclosure of non-
public information, it will generally condition the release of the
information on the entry of a confidentiality order or agreement that
places limits on the extent to which the recipient may disclose the
information. Sec. 510.5(f).
By selectively releasing information in third-party litigation only
when these criteria are met, and by requiring that a confidentiality
order or agreement be in place before non-public information is
released, OTS has minimized any potential adverse consequence
occasioned by the release of the information. As noted, following these
procedures, OTS has disclosed non-public information in hundreds of
cases in which it has received production demands under the Federal
Rules of Civil Procedure, and it is not aware that this practice has
had any adverse effect on the examination process.
2. Freedom of Information Act Considerations
Six commenters expressed concern that the FOIA specifically exempts
from disclosure certain records, such as OTS's examination reports, and
that the release of such records would be a ``violation'' of the FOIA.
First, the FOIA does not prohibit the release of information; rather,
it requires the disclosure of certain types of records and exempts from
mandatory release other records. The FOIA gives the agency discretion
to release information that it is not otherwise required to release
under FOIA. Among the categories of records that are exempt from
mandatory release are records related to examination, operating or
condition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions.3 Thus, while the FOIA exempts these records from the
mandatory disclosure requirements, it in no manner prevents the OTS
from disclosing this information under the OTS's authority to govern
the custody and the use of its records and the testimony of its
personnel.4 The OTS will continue to exercise its authority to
release such information in a prudent manner by applying the procedures
set forth in the final rule and the relevant federal case law.
\3\ 5 U.S.C. 552(b)(8).
\4\ 12 U.S.C. 1462a; 5 U.S.C. 301.
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3. An Interagency Process Should be Established
The recommendation was made by some commenters that the OTS should
work with the other banking agencies to establish interagency
procedures to provide for consistent application of criteria governing
release of unpublished information concerning financial institutions.
One commenter stated that this is a matter for resolution under the
auspices of the Federal Financial Institutions Examination Council
(FFIEC), and recommended that the OTS refer the issues arising out of
the proposal to the FFIEC.
The nature of requests, the volume of requests and the needs of the
agency may vary from one federal agency to another. While the OTS
agrees with the merits of developing a uniform set of procedures for
responding to requests for unpublished information, the public interest
would not be served by delaying the issuance of this rule while the
prospect of developing uniform procedures on an interagency basis is
explored. Because the existing rule does not describe many of the
practices that OTS has developed over the last several years, it is
preferable to amend the rule now so that the public is informed of the
disclosure process OTS currently uses. [[Page 28030]]
4. Violation of the Right to Privacy
Three commenters asserted that the release of confidential
information without the knowledge and consent of the savings
association violates a general right to privacy of the thrift, its
customers, and its personnel. The commenters identified no statutory
basis for this assertion. In releasing unpublished OTS information, the
OTS has observed and will continue to observe the requirements of the
Privacy Act of 1974, 5 U.S.C. 552a, and the Right to Financial Privacy
Act, 12 U.S.C. 3401 et seq.
5. Source of Information Should be Permitted to Comment
Three commenters suggested that the source or subject of the
confidential information should be permitted to express its views
regarding the release of unpublished information. The OTS has on
occasion contacted the source of the information for its views on
release of the information. However, in the vast majority of cases, the
OTS has been able to evaluate the necessity to maintain the
confidentiality of OTS information without consulting the subject or
source of the OTS information. Therefore, a requirement that the OTS
obtain the subject's or source's views in all instances would result in
unnecessary delays in processing requests. For this reason, the OTS
declines to include a provision requiring that the source's views be
sought, but the OTS will retain, on a case-by-case basis, the practice
of contacting the source of information for input when the
circumstances and timing warrant.
6. Information Shared With Holding Company
Five commenters supported the new provision authorizing a savings
association to provide a copy of its examination report and related
supervisory correspondence to its parent holding company. The
commenters also supported the provision whereby the holding company
would similarly be authorized to provide a copy of its examination
report and related supervisory correspondence to its subsidiary thrift.
This information would enhance the ability of a holding company to
assess its subsidiary thrift's operations and compliance with
regulatory standards, and would permit the holding company to provide
managerial or financial resources when needed. Similarly, a subsidiary
thrift could use this information to address issues it may have with
the holding company and to avoid potential conflicts of interest.
7. Increased Litigation and Increased Costs
Three commenters expressed concern that the final rule will lead to
an increase in shareholder and other lawsuits against savings
associations. Also, two commenters expressed concern that this rule
would greatly increase the amount of OTS employee time and taxpayer
money that would be expended in evaluating requests for information, as
well as increase costs generally. The OTS does not agree with these
concerns. The final rule simply codifies the OTS's existing practices
in evaluating requests from the public for unpublished OTS information.
The OTS's experience over the past five years has not shown that these
practices resulted in increased litigation against savings associations
or increased costs to the OTS. In fact, the final rule should help
reduce costs by decreasing the amount of time that OTS personnel devote
to answering questions from the public about the OTS's procedures for
releasing non-public information. Unlike the current rule, the final
rule specifies in detail the procedures that must be followed and the
information that must be provided when the public requests unpublished
OTS information.
III. Description of the Final Rule
The final rule does not differ materially from the proposal.
Certain non-substantive changes have been made to section 510.5(a)(2)
for clarification purposes. Section 510.5(a)(3) was changed to clarify
that this rule does not apply to other government agencies except where
specifically provided. Also, section 510.5(c)(4)(v) was changed to
clarify that requesters who obtain unpublished OTS information may not
disclose such information without the OTS's authorization.
Certain minor changes have been made to section 510.5(c)(2)(ii) in
response to a comment that was submitted. As proposed, that subsection
provided that if a party to a lawsuit has a claim of privilege
regarding the information in OTS records and the records are in the
possession of that party, the OTS may respond to the request by
authorizing the party to release the records pursuant to an appropriate
confidentiality order rather than by releasing the records directly to
the requesting party, so that the party possessing the records may
argue the issue of privilege in the appropriate court. In the final
rule, the term ``another party to the lawsuit'' has been changed to
``person'' in order to clarify that a person (e.g., an individual,
corporation, partnership) may assert a privilege for non-public OTS
records in its possession or control if it receives a subpoena for such
information in litigation in which it is not a party. The final rule
also clarifies that the privilege may be asserted by the person who has
either possession or control of the records, rather than just
possession of the records.
Section 510.5(c)(5) was also changed to specify that requests
submitted under this regulation should be sent to the attention of the
Corporate Secretary.
Section 510.5(d)(4), which describes the grounds for denying
requests, was modified to include two criteria that are identified in
section 510.5(c), the section that explains the issues that must be
addressed in a request for unpublished OTS information. The additional
criteria for denying a request are (1) the need for the information
does not clearly outweigh the need to maintain the confidentiality of
the information, and (2) the requester has not shown a compelling need
for the testimony. While these criteria are implicit in the grounds for
denial that appeared in the proposed rule and that have been retained
in the final rule (i.e., that OTS may deny requests that are overly
burdensome or contrary to the public interest), OTS is explicitly
including these criteria in the interests of completeness.
Readers are referred to the preamble 5 in the proposal for
additional discussion of provisions that have not been revised in the
final rule.
\5\ 58 FR 64695 (December 9, 1993).
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IV. Paperwork Reduction Act
The reporting requirements contained in this final rule have been
submitted for review and approved by the Office of Management and
Budget, in accordance with the Paperwork Reduction Act of 1980 (44
U.S.C. 3504(h)) under control number 1550-0081. Comments on the
collection of information should be sent to the Office of Management
and Budget, Paperwork Reduction Project (1550), Washington, D.C. 20503,
with copies to the Office of Thrift Supervision, 1700 G Street, NW.,
Washington, D.C. 20552.
The reporting requirements in this final rule are found in 12 CFR
510.5(c)-(g). The information is needed by the OTS to provide a more
efficient mechanism for expeditiously processing requests for
unpublished information.
V. Regulatory Flexibility Act
Pursuant to section 605(b) of the Regulatory Flexibility Act (Pub.
L. 96-354, 5 U.S.C. 601), it is certified that this
[[Page 28031]] regulation will not have a significant economic impact
on a substantial number of small savings associations, small service
corporations, or other small entities. This regulation simply sets
forth the procedures utilized by the OTS in its handling of requests
for unpublished OTS information and imposes fees in connection with
such requests. Accordingly, a regulatory flexibility analysis is not
required.
VI. Executive Order 12866
The OTS has determined that this regulation does not constitute a
``significant regulatory action'' for purposes of Executive Order
12866.
List of Subjects
12 CFR Part 506
Reporting and recordkeeping requirements.
12 CFR Part 510
Administrative practice and procedure.
Accordingly, the Office of Thrift Supervision hereby amends parts
506 and 510, subchapter A, chapter V, title 12 of the Code of Federal
Regulations as set forth below.
SUBCHAPTER A--ORGANIZATION AND PROCEDURES
PART 506--INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK
REDUCTION ACT
1. The authority citation for part 506 continues to read as
follows:
Authority: 44 U.S.C. 3501 et seq.
2. Section 506.1 is amended by adding in numerical order one new
entry to the table in paragraph (b) to read as follows:
Sec. 506.1 OMB control numbers assigned pursuant to the Paperwork
Reduction Act.
* * * * *
(b) Display.
------------------------------------------------------------------------
Current OMB
12 CFR part or section where identified and described control No.
------------------------------------------------------------------------
* * * * *
510.5(c) through (g)....................................... 1550-0081
* * * * *
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PART 510--MISCELLANEOUS ORGANIZATIONAL REGULATIONS
3. The authority citation for part 510 is revised to read as
follows:
Authority: 5 U.S.C. 301; 12 U.S.C. 1462a, 1463, 1464.
4. Section 510.5 is revised to read as follows:
Sec. 510.5 Release of unpublished OTS information.
(a) Scope. (1) This section applies to requests by the public for
unpublished OTS information, such as requests for records or testimony
from parties to lawsuits in which the OTS is not a party.
(2) Unpublished OTS information includes records created or
obtained in connection with the OTS's performance of its
responsibilities, such as records concerning supervision, regulation,
and examination of savings associations, their holding companies, and
affiliates, and records compiled in connection with the OTS's
enforcement responsibilities. Unpublished OTS information also includes
information that current and former employees, officers, and agents
obtained in their official capacities. Examples of unpublished
information include:
(i) Information in the memory of a current or former employee,
officer, or agent of the OTS (or the Federal Home Loan Bank Board, the
predecessor agency of the OTS), by testimony or informal interview,
that was acquired in the course of performing official duties or
because of the employee's, officer's or agent's official status;
(ii) Reports of examination, supervisory correspondence, internal
agency memoranda and investigatory files compiled in connection with an
investigation, whether such records are in the possession of the OTS or
some other individual or entity; and
(iii) Unpublished OTS records obtained by or in the possession of
third parties, including other government agencies.
(3) This section does not apply to:
(i) Requests for records or testimony in proceedings in which the
OTS is a party;
(ii) Requests for information by other government agencies, except
when specifically provided; and
(iii) Requests for records that are required to be disclosed under
the Freedom of Information Act, see 5 U.S.C. 552, and 31 CFR 1.1-1.6.
(b) Purpose. The purposes of this section are:
(1) To afford an orderly mechanism for the OTS to expeditiously
process requests for unpublished OTS information and, where
appropriate, for the OTS to assert evidentiary privileges in
litigation;
(2) To balance the need for confidentiality of unpublished OTS
information with the private party's interest in obtaining disclosure
of that information;
(3) To ensure that the time of OTS employees is utilized in the
most efficient manner consistent with the OTS's statutory mission;
(4) To prevent undue burdens on the OTS;
(5) To limit the expenditure of the OTS's funds for private
purposes; and
(6) To maintain the impartiality of the OTS among private
litigants.
(c) Procedure.--(1) Requests for records and testimony in general.
A request for unpublished OTS information must be in writing, furnish
the caption of the lawsuit if the request arises in the course of
litigation, and support the requester's claim that the information
sought is highly relevant to the purpose for which it is sought. In
demonstrating that the information is highly relevant, the requester
must explain in detail how the requested OTS information relates to the
issues in the case or the matter.
(i) For requests arising in lawsuits, the submission also must
include:
(A) A copy of the complaint or equivalent document in the case and
any other pleadings necessary to show relevance;
(B) A description of any prior decisions or pending motions in the
case that may bear on the asserted relevance of the information being
sought from the OTS; and
(C) The names, addresses and phone numbers of counsel to all other
parties in the case.
(ii) In all instances, in addition to demonstrating that the
information sought is highly relevant to the purpose for which it is
sought, the requester must:
(A) Demonstrate that the information sought is not available from
any other source; and
(B) Demonstrate that the need for the information clearly outweighs
the need to maintain the confidentiality of the OTS information and the
burden on the OTS to produce the information.
(iii) If a request seeks a response in fewer than 30 days, it must
include an explanation of why the requester was unable to submit the
request earlier and why expediting the request is required.
(2) Additional provisions relating to requests for records. In
addition to the requirements of paragraph (c)(1) of this section, the
provisions in paragraphs (c)(2)(i) and (c)(2)(ii) of this section apply
to requests for disclosure of records.
(i) A request for records must list the categories of records
sought and describe the specific information sought, including the
relevant time period.
(ii) When the OTS believes that another person has a claim of
privilege regarding the information in the records [[Page 28032]] and
the records are in the possession or control of that person, such as
reports prepared by a savings association's attorneys that are shared
with the OTS, the OTS may respond to the request by authorizing that
person to release the records pursuant to an appropriate
confidentiality order rather than by the OTS releasing the records
directly to the requesting party. This will enable the person
possessing or controlling the records to argue any issues of privilege
to the appropriate court.
(3) Additional provisions relating to requests for testimony from
OTS employees. In addition to the requirements of paragraph (c)(1) of
this section, the provisions in paragraphs (c)(3)(i) through (c)(3)(iv)
of this section apply to requests that current or former OTS employees
be authorized to give testimony.
(i) The request must specifically describe the substance of the
testimony sought and show a compelling need for the testimony. A
showing of compelling need should include a demonstration that the
requested information is not available from any other source, such as
the books and records of other persons or entities, OTS records that
have been or might be released, or the testimony of other non-OTS
persons, including retained experts.
(ii) OTS employees will not be authorized to provide expert or
opinion testimony for private parties.
(iii) The OTS expects litigants to anticipate their need for OTS
testimony in sufficient time to request and obtain that testimony in
deposition form. A request for testimony at a trial or hearing may not
be granted unless the requester shows that properly developed
deposition testimony could not be used or would not be adequate at the
trial or hearing.
(iv) The OTS shall specify the scope of any authorized testimony
and may take steps to ensure that the scope of testimony taken adheres
to the scope authorized. Parties to the case who did not join in the
request and who wish to question the witness beyond the authorized
scope should request expanded authorization pursuant to this
regulation. The OTS will attempt to render decisions on such requests
in an expedited manner.
(4) Information available to savings associations, holding
companies, state and Federal agencies and requesters. (i) The regular
report of examination of a savings association, savings and loan
holding company, or other affiliate of a savings association is made
available by the appropriate Regional Office to the entity examined.
(ii) A subsidiary savings association of a savings and loan holding
company may reproduce and furnish a copy of its report of examination
and related supervisory correspondence of the savings association to
its parent holding company(ies) without prior approval of the OTS. A
savings and loan holding company may reproduce and furnish a copy of
its report of examination and related supervisory correspondence to
another affiliated savings and loan holding company that controls the
same savings association or its subsidiary savings association(s)
without prior approval of the OTS. This paragraph does not require such
disclosure by a parent savings and loan holding company or subsidiary
savings association.
(iii) Reports of examination and other information relating to
state-chartered savings associations and affiliates are made available,
upon request, by the OTS to the state governmental authority having
general supervision of such state-chartered savings associations.
(iv) Reports of examination and other information may be made
available by the OTS to other agencies of the United States, a state
agency, or to the Federal Home Loan Banks, for use where necessary in
the performance of their official duties.
(v) All reports or other information made available to savings
associations, holding companies, affiliates, other governmental
agencies or requesters shall remain the property of the OTS and, except
as permitted by this section or otherwise by the Director or his
delegate, no person, company, agency, or authority to whom the
information is made available, or any officer, director, employee or
agent thereof, shall disclose any such information except published
statistical material that would not disclose the identity of any
individual or corporation.
(5) Where to submit requests. In all matters covered by this
section, notification of the issuance of subpoenas or compulsory
process and requests for records or testimony covered by this section
must be sent to the OTS at 1700 G Street NW., Washington, DC 20552, to
the attention of the Corporate Secretary, and should be labelled
``Request for Release of Unpublished Information Under Section 510.5.''
Requesters may furnish copies of the request or subpoenas
simultaneously to the appropriate OTS Regional Office, but the
furnishing of such copies does not constitute service on the OTS.
(d) Consideration of requests--(1) In general. The OTS will
generally process requests in the order in which they are received. The
OTS will endeavor to respond to requests within 30 days, but this may
vary depending on the scope and precision of the request. The OTS will
weigh requests for processing in less than 30 days against the burden
to the OTS of expedited processing and the unfairness to other parties
whose pending requests may be delayed.
(2) Consultation with requester. The OTS may consult with the
requester to:
(i) Refine and limit the scope of the request so as to reduce the
burden and expense on the OTS; or
(ii) Obtain additional information necessary for the OTS to make an
informed determination on the request. To the extent necessary to reach
an informed determination on the request, the OTS may inquire into the
circumstances of the underlying matter and rely on sources of
information beyond the requester, including other interested parties.
(3) Final determinations. Final determinations on requests will be
made by the Director or his delegate. All such determinations are the
sole discretion of the Director or his delegate. Requesters will be
notified in writing of the disposition of the request.
(4) Denial of requests. (i) The OTS may deny requests for records
or testimony that seek information that the OTS deems to be:
(A) Not highly relevant;
(B) Privileged;
(C) Available from other sources; or
(D) Information that should not be disclosed for reasons that
warrant restriction of discovery under the Federal Rules of Civil
Procedure (28 U.S.C. appendix).
(ii) The OTS may also deny a records or testimony request when it
considers production of the information to be overly burdensome or
contrary to the public interest, or where OTS determines that the need
for the information does not clearly outweigh the need to maintain the
confidentiality of the information, or where the requester seeks
testimony and has not shown a compelling need for the testimony.
(5) Confidentiality Orders and Agreements. As is set forth in
paragraph (f) of this section, the OTS may condition release of
information on the entry by the relevant tribunal of an order
satisfactory to the OTS or, in a non-litigated matter, the execution of
a confidentiality agreement that limits access of third parties to the
unpublished OTS information. It shall be the duty of the requesting
party to obtain such an order or to execute a confidentiality
agreement. [[Page 28033]]
(e) Parties with access to OTS information; restriction on
dissemination--(1) Current and former employees. Except as authorized
by this section or as otherwise authorized by the Director or his
delegate, no current or former employee, officer or agent of the OTS or
a predecessor agency shall disclose or permit the disclosure of any
unpublished information of the OTS to anyone (other than an employee,
officer or agent of the OTS properly entitled to such information for
the performance of their official duties), whether by giving out or
furnishing such information or a copy thereof or by allowing any person
to inspect, examine, or copy such information or copy thereof, or
otherwise.
(2) Duty of person served. If any person, whether or not a current
or former employee, officer or agent of the OTS, has information of the
OTS that may not be disclosed under the regulations of the OTS or other
applicable law, and in connection therewith is served with a subpoena,
order, or other process requiring personal attendance as a witness or
production of records or information in any proceeding, that person
shall promptly advise the OTS of such service or request for
information. Upon such notice the OTS will take appropriate action to
advise the court or tribunal that issued the process and the attorney
for the party at whose instance the process was issued, if known, of
the substance of this section. Such notice to the OTS shall be made by
contacting the Litigation Division, Office of Chief Counsel, Office of
Thrift Supervision, 1700 G Street NW., Washington, DC 20552. As
provided in paragraph (e)(3) of this section, a person so served with
process may not disclose OTS information without OTS authorization. To
obtain OTS authorization, a request must be sent to the OTS in
Washington, DC, in accordance with paragraph (c) of this section.
(3) Appearance by person served. Except as the OTS has authorized
disclosure of the relevant information, or except as authorized by law,
any person who has information of the OTS that may not be disclosed
under this section and is required to respond to a subpoena or other
legal process shall attend at the time and place therein mentioned and
respectfully decline to produce such records or give any testimony with
respect thereto, basing such refusal on this part. If, notwithstanding,
the court or other body orders the disclosure of such records or the
giving of such testimony, the person having such information of the OTS
shall continue respectfully to decline to produce such information and
shall promptly advise the Litigation Division of the Chief Counsel's
Office, Office of Thrift Supervision. Upon such notice the OTS will
take appropriate action to advise the court or tribunal which issued
the order, of the substance of this section.
(4) Non-waiver of privilege. The possession by any entity or
individual described in paragraph (c)(4) of this section of OTS records
covered by this section shall not waive any privilege of the OTS or the
OTS's right to supervise the further dissemination of these records.
(f) Orders and agreements protecting the confidentiality of
unpublished OTS information--(1) Records. Unless otherwise permitted by
the OTS, release of records authorized pursuant to this section will be
conditioned by the OTS upon entry of an acceptable protective order by
the court or administrative tribunal presiding in the particular case,
or, in non-litigated matters, upon execution of an acceptable
confidentiality agreement. In cases where protective orders have
already been entered, the OTS reserves the right to condition approval
for release of information upon the inclusion of additional or amended
provisions.
(2) Testimony. The OTS may condition its authorization of
deposition testimony on an agreement of the parties that the transcript
of the testimony will be kept under seal, or will be made available
only to the parties, the court and the jury, except to the extent that
the OTS may allow use of the transcript in related litigation. The
party who requested the testimony shall, at its expense, furnish to the
OTS a copy of the transcript of testimony of the OTS employee or former
employee.
(g) Limitation of burden on the OTS in connection with released
records--(1) Authentication for use as evidence. The OTS will
authenticate released records to facilitate their use as evidence.
Requesters who require authenticated records should request certified
copies at least 30 days prior to the date they will be needed. The
request should be sent to the OTS Public Disclosure Branch and shall
identify the records, giving the office or record depository where they
are located (if known) and include copies of the records and payment of
the certification fee.
(2) Responsibility of litigants to share released records. The
party who has sought and obtained OTS records has the responsibility
of:
(i) Notifying other parties to the case of the release and, after
entry of a protective order, providing copies of the records to the
other parties who are subject to the protective order; and
(ii) Retrieving any records from the court's file as soon as the
records are no longer required by the court and returning them to the
OTS. Where a party may be involved in related litigation, the OTS may,
upon a request made to it pursuant to this section, authorize such
party to transfer the records for use in that related case.
(h) Fees--(1) Fees for records searches, copying and
certifications. Requesters shall be charged fees in accordance with
Treasury Department regulations, 31 CFR 1.7. With certain exceptions,
the regulations in 31 CFR 1.7 provide for recovery of the full direct
costs of searching, reviewing, certifying and duplicating the records
sought. An estimate of the statement of charges will be sent to
requesters, and fees shall be remitted by check payable to the OTS
prior to release of the requested records. Where it deems appropriate,
the OTS may contract with commercial copying concerns to copy the
records, with the cost billed to the requester.
(2) Witness fees and allowances. (i) Litigants whose requests for
testimony of current OTS employees are approved shall, upon completion
of the testimonial appearance, promptly tender a check payable to the
OTS for witness fees and allowances in accordance with 28 U.S.C. 1821.
(ii) All litigants whose requests for testimony of former OTS
employees are approved, shall also promptly tender witness fees and
allowances to the witness in accordance with 28 U.S.C. 1821.
Dated: May 22, 1995.
By the Office of Thrift Supervision.
Jonathan L. Fiechter,
Acting Director.
[FR Doc. 95-12967 Filed 5-26-95; 8:45 am]
BILLING CODE 6720-01-P
