[Federal Register Volume 64, Number 33 (Friday, February 19, 1999)]
[Rules and Regulations]
[Pages 8239-8243]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4125]
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OVERSEAS PRIVATE INVESTMENT CORPORATION
22 CFR Parts 706, 713
RIN 3420-AA02
Production of Nonpublic Records and Testimony of OPIC Employees
in Legal Proceedings
AGENCY: Overseas Private Investment Corporation.
ACTION: Final rule.
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SUMMARY: This final rule establishes rules regarding subpoenas seeking
nonpublic records or the testimony of current or former OPIC employees
in legal proceedings. The final 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 final
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 rule. The effect of this final 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 final rule also amends the current rule
regarding release of OPIC records which are exempt from disclosure
under the Freedom of Information Act (FOIA), to conform with the
procedures provided in this final rule.
DATES: Effective March 22, 1999.
FOR FURTHER INFORMATION CONTACT: Mitchel Neurock, Counsel for
[[Page 8240]]
Administrative Affairs, at (202) 336-8400.
SUPPLEMENTARY INFORMATION: This final rule implements, with minor
technical changes, the proposed rule published on December 10, 1998. 63
FR 68213. 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).
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), 5 U.S.C. 552. 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.
Moreover, instead of producing a witness to testify as to the
authenticity of documents, OPIC could provide documents under its
corporate seal, the authenticity of which must be judicially noted. See
22 U.S.C. 2199(d).
Additionally, in many cases parties wish to use an 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 prior regulations failed to inform parties about any matter
concerning submission of subpoenas. There was 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 was
also no guidance for parties about the factors OPIC will consider in
making its determination in response to such requests.
This final rule fills in these gaps in OPIC's regulations. The
final rule, in brief: prohibits disclosure of nonpublic records or
testimony by OPIC employees, as defined, 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 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 this final rule applies to a
broad range of cases (not just matters before courts). The final 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 this final rule. They are not,
however, barred from appearing on general matters or otherwise
employing their expertise (as expert witnesses, for example).
This final 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 uniformity in responding to such
requests and subpoenas, and will maintain the necessary impartiality of
OPIC in matters between private litigants. The final rule will serve
OPIC's interest in protecting sensitive, confidential and privileged
information and records generated by its work.
This final 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 implementing this rule. Failure to comply with the rule,
however, constitutes grounds for OPIC's denial of any request.
Requesters may be able to seek judicial review of any final
determination by OPIC under the Administrative Procedure Act, 5 U.S.C.
702.
This final rule is not intended to restrict access to records under
FOIA, the Privacy Act (5 U.S.C. 552a), or any other authority. At the
same time, nothing in this final rule would permit disclosure of
information by OPIC or its employees except as provided by statute or
other applicable law.
During the comment period provided by the notice of proposed
rulemaking, OPIC received no formal comments.
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 this final 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
final 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.
[[Page 8241]]
Paperwork Reduction Act
OPIC has determined that this rulemaking is not subject to the
Paperwork Reduction Act, because OPIC averages fewer than 10 requests
per year, and expects this level of activity to remain below this
threshold. 5 CFR 1320.3(c).
Executive Order 12612
OPIC has determined that this final 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
22 CFR Part 706
Freedom of information.
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, 22 CFR Chapter VII is
amended as follows:
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. In Sec. 706.22, designate the introductory text as paragraph (a)
and redesignate the previous 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 or by other law or regulation, 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. Part 713 is added 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 for legal
proceedings 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 or
release 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 and 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, as defined at Sec. 713.10, and you are served with a subpoena
requiring you to produce records or to testify as a witness, 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 contents 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 reviewing 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 you notify the Vice-President/General Counsel of the
subpoena, respond to the subpoena by appearing at the time and place
stated in the subpoena, unless otherwise directed by the Vice
President/General Counsel. 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, or of which OPIC makes
discretionary release, under the Freedom of Information Act (FOIA),
records that OPIC releases to federal or state investigatory agencies,
records that OPIC is required to release pursuant to the Privacy Act, 5
U.S.C. 552a, or records that OPIC releases under any other applicable
authority.
[[Page 8242]]
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 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 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 my 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:
(1) 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.
(3) Whether you can get the records or testimony you want from
sources other than OPIC.
(4) Whether the request is unduly burdensome.
(5) Whether disclosure would violate a statute, executive order, or
regulation, such as the Privacy Act, 5 U.S.C. 552a.
(6) 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.
(7) Whether the disclosure would interfere with law enforcement
proceedings, compromise constitutional rights, or hamper OPIC programs
or other OPIC operations.
(8) Whether the disclosure could result in OPIC's appearing to
favor one litigant over another.
(9) 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.
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, 22 CFR Part 706, Subpart B, Sec. 706.26.
(c) Witness fees. Your 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/
[[Page 8243]]
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 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 Defintitions.
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, grand juries, 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 testimony and/or production of documents by OPIC
employees, as defined, will still be subject to this part.
Nonpublic records means any OPIC records which are exempt from
disclosure by statute or under Part 706, OPIC's regulations
implementing the provisions of the Freedom of Information Act. For
example, this may include 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
cancelled 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: February 9, 1999.
Michael C. Cushing,
Managing Director for Administration.
[FR Doc. 99-4125 Filed 2-18-99; 8:45 am]
BILLING CODE 3210-01-M
