[Federal Register Volume 64, Number 156 (Friday, August 13, 1999)]
[Rules and Regulations]
[Pages 44103-44109]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-21060]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 64, No. 156 / Friday, August 13, 1999 / Rules
and Regulations
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FEDERAL HOUSING FINANCE BOARD
12 CFR Part 905
[No. 99-42]
RIN 3069-AA81
Availability of Unpublished Information
AGENCY: Federal Housing Finance Board.
ACTION: Interim final rule with request for comments.
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SUMMARY: The Federal Housing Finance Board (Finance Board) is adding a
new part to its regulations governing the availability of unpublished
information. The rule describes the procedures a person or entity must
follow when requesting unpublished Finance Board information either by
document or by testimony of current or former Finance Board employees
or agents and the practices and procedures the Finance Board will use
in responding to such requests.
DATES: The interim final rule will become effective on August 13, 1999.
The Finance Board will accept comments on the interim final rule in
writing on or before Ocotber 12, 1999.
ADDRESSES: Send comments to Elaine L. Baker, Secretary to the Board, by
electronic mail at bakere@fhfb.gov, or by regular mail at the Federal
Housing Finance Board, 1777 F Street, N.W., Washington, D.C. 20006.
Comments will be available for public inspection at this address.
FOR FURTHER INFORMATION CONTACT: Janice A. Kaye, Attorney-Advisor,
Office of General Counsel, by telephone at 202/408-2505, by electronic
mail at kayej@fhfb.gov, or by regular mail at the Federal Housing
Finance Board, 1777 F Street, N.W., Washington, D.C. 20006.
SUPPLEMENTARY INFORMATION:
I. Background
The Finance Board, an independent agency in the Executive branch of
the United States government, see 12 U.S.C. 1422a(a)(2), recently has
received requests from attorneys representing private parties for
access to information or documents acquired by Finance Board employees
in their official capacity or in the course of performing official
duties. The attorneys plan to use the information in connection with
litigation in which neither the Finance Board nor the United States is
a party. This type of information, referred to herein as ``unpublished
information,'' generally is not subject to release under the Freedom of
Information Act (FOIA). See 5 U.S.C. 552. Because the Finance Board
previously has not received requests for unpublished information, it
has not established procedures for the efficient processing of such
requests. In order to control the process and the use and disclosure of
its unpublished information, the Finance Board has determined to adopt
procedures that must be followed by persons or entities requesting
unpublished Finance Board information, and practices and procedures the
Finance Board will use in responding to such requests.
The so-called federal ``housekeeping statute'' authorizes an agency
to issue regulations governing the conduct of agency employees and the
custody, use, and preservation of agency records, papers, and property.
See 5 U.S.C. 301. Pursuant to this authority, many federal agencies
have issued regulations governing the circumstances and manner in which
a current or former agency employee or agent, regulated entity, or
other person or entity in possession of unpublished agency information
must respond to demands for testimony or the production of documents.
See, e.g., 12 CFR 1710.31-40 (Office of Federal Housing Enterprise
Oversight); 12 CFR 510.5 (Office of Thrift Supervision). In addition,
section 2B of the Federal Home Loan Bank Act (Bank Act) empowers the
Finance Board to supervise the Federal Home Loan Banks (FHLBanks) and
promulgate and enforce such regulations as are necessary to carry out
the provisions of the Bank Act. See 12 U.S.C. 1422b(a)(1). Therefore,
pursuant to the authority provided by section 2B of the Bank Act and
the housekeeping statute, the Finance Board is adding a new part 905 to
its regulations governing the availability of unpublished Finance Board
information by document or by testimony of current or former Finance
Board employees or agents. This new rule will ensure that requests for
unpublished information include everything the Finance Board needs to
make an objective decision regarding use and disclosure of the
requested information. The rule also will enable the Finance Board to
fairly and effectively consider and respond to such requests.
II. Analysis of the Interim Final Rule
The interim final rule adds a new part 905 to the Finance Board's
regulations to be codified in Title 12 of the Code of Federal
Regulations. A more detailed description of the provisions of part 905
follows.
A. Purposes and Scope
Section 905.2 sets out the purposes and scope of part 905, which
governs the availability of unpublished Finance Board information
either by document or by testimony of current or former Finance Board
employees or agents. Under part 905, the term ``unpublished
information'' means: (1) information and documents created or obtained
by the Finance Board in connection with the performance of official
duties, whether the information or documents are in the possession of
the Finance Board, a current or former Finance Board employee or agent,
a FHLBank, the Office of Finance, or the Financing Corporation (i.e., a
supervised entity), a FHLBank member, or some other person, entity, or
government agency; and (2) information and documents created or
obtained by, or information in the memory of, a current or former
Finance Board employee or agent, which was acquired in the person's
official capacity or in the course of performing official duties.
Unpublished information does not include information or records the
Finance Board must disclose under the FOIA, Privacy Act, or the Finance
Board's implementing regulations. See 5 U.S.C. 552 and 552a; 12 CFR
parts 904 and 909.). It also does not include information or documents
that were previously published or disclosed or are customarily
furnished to the public in the course of the performance of official
duties such as the annual report the
[[Page 44104]]
Finance Board submits to Congress pursuant to section 2B(d) of the Bank
Act (12 U.S.C. 1422b(d)), press releases, Finance Board forms, and
materials published in the Federal Register. The Finance Board expects
that unpublished information will include confidential information that
is privileged.
The rule covers former as well as current employees to allow the
Finance Board to control the release of unpublished information a
former employee possesses or information a former employee recalls
regarding matters that remain confidential. It is not intended to
restrict a former employee but rather to permit the Finance Board an
opportunity to consult with the former employee and parties wishing to
use the employee's testimony in advance of testimony being given in
order to protect the confidentiality of unpublished information by
prohibiting or limiting testimony as appropriate. Since the rule
prohibits the release only of unpublished information the former
employee acquired in an official capacity or in the course of
performing official duties, it does not bar a former employee from
appearing on general matters or otherwise employing his or her
knowledge or expertise as, for example, an expert witness.
The purposes of the rule are to provide an orderly mechanism for
expeditiously processing requests for unpublished information. The rule
will conserve the time of employees for official duties and ensure that
the Finance Board can deploy its resources in the most efficient manner
while preserving the Finance Board's need to maintain the
confidentiality of certain information. The rule also is intended to
allow the Finance Board to remain impartial among private litigants.
The rule does not, and may not be relied upon to create any substantive
or procedural right or benefit enforceable against the Finance Board.
The Finance Board expects the majority of requests for unpublished
information to arise in the course of a legal proceeding, such as an
administrative, civil, or criminal proceeding, including a grand jury
or discovery proceeding, in which neither the Finance Board nor the
United States is a party. However, because requests also arise in a
non-litigation context, the scope of the interim final rule is broad--
it applies to any request for or disclosure of unpublished information
by document or testimony. The rule is not intended to and will not
apply to requests for unpublished information in connection with a
legal proceeding in which the Finance Board or the United States is a
party or requests for information or records the Finance Board must
disclose under the FOIA or the Privacy Act. See 5 U.S.C. 552 and 552a.
The interim final rule does not affect the rights and procedures
governing access to records under the FOIA or the Privacy Act, which
the Finance Board will continue to process under part 904 or 909 of the
Finance Board's regulations, respectively. See 12 CFR parts 904 and
909. However, the interim final rule may permit the Finance Board to
disclose documents that are exempt from disclosure under the FOIA.
B. Prohibition on Unauthorized Use and Disclosure of Unpublished
Information
The Finance Board considers all unpublished information to be
confidential. Thus, use or disclosure of unpublished information
without the express authorization of the Finance Board is prohibited.
Section 905.3 of the interim final rule makes clear that unpublished
information in the possession or control of any person, supervised
entity, FHLBank member, government agency, or other entity remains the
property of the Finance Board. No person or entity may use or disclose
unpublished information, even information lawfully in their possession
or control, without Finance Board authorization. A person or entity
that uses or discloses unpublished information without authorization
may be subject to criminal penalties. See 18 U.S.C. 641. In addition,
current Finance Board, FHLBank, or Office of Finance employees may be
subject to administrative or disciplinary proceedings. See, e.g., 12
U.S.C. 1422b(a)(2) and (b)(1).
C. Requests for Unpublished Information
Section 905.4 sets forth the procedure for making requests for
unpublished information. The Finance Board only will consider complete
written requests that include a detailed description of the basis for
the request. Every request must demonstrate that the requested
information is highly relevant to the purpose for which it is sought
and is not available from any other source. The requester also must
show that the need for the information clearly outweighs the need to
maintain its confidentiality and the burden on the Finance Board to
produce it. If a requester seeks a response in less than 60 days, the
request must explain why it was not submitted earlier and why it should
be expedited. At its discretion, the Finance Board may seek additional
information from the requester, parties to the matter at issue, or
other sources of information.
In addition to the basic requirements discussed above, a request
for the production of documents must adequately describe the record or
records sought by type and date. A request for the testimony of current
or former Finance Board employees or agents also must set forth the
intended use of the testimony, a summary of the scope of the testimony
requested, and a showing that no document or the testimony of other
non-Finance Board persons, including retained experts, could be
provided and used in lieu of the testimony. In order to limit the time
an employee or agent spends providing authorized testimony, the rule
requires a requester to notify all other parties to the matter at issue
of the request for testimony and permits another party to join in the
request or submit its own request if the scope of the testimony sought
is different.
If a request is made in connection with a legal proceeding, the
requester must include detailed information about the legal proceeding.
The Finance Board generally will not consider a request arising out of
a legal proceeding unless the legal proceeding is already filed.
D. Consideration of Requests
Section 905.5(a) makes clear that a decision concerning the
availability of unpublished information is at the sole discretion of
the Finance Board. Absent exigent or unusual circumstances, the Finance
Board will determine whether to grant a request for unpublished
information in whole or in part within 60 days of receipt. The factors
the Finance Board may consider in making a determination include, but
are not limited to, the following:
Whether and how the requested information is relevant to
the purpose for which it is sought.
Whether information reasonably suited to the requester's
needs other than the requested information is available from another
source.
Whether the requested information is privileged.
If the request is in connection with a legal proceeding,
whether the proceeding has been filed.
The burden placed on the Finance Board to respond to the
request.
Whether production of the information would be contrary to
the public interest.
Whether the need for the information clearly outweighs the
need to maintain the confidentiality of the information.
The Finance Board may respond to a request by authorizing a person
or entity in lawful possession or control of unpublished information to
disclose the
[[Page 44105]]
information to a requester pursuant to an appropriate confidentiality
order. This is intended to allow the person or entity in possession or
control to assert its own claim of privilege or to argue that the
information is not relevant or otherwise protected from disclosure.
The Finance Board generally will notify a FHLBank, FHLBank member,
the Office of Finance, or Financing Corporation that it is the subject
of a request. The Finance Board will not provide notice if it
determines, in its sole discretion, that the notice would advantage or
prejudice any of the parties to the matter at issue.
E. Duty of Persons and Entities With Access to Unpublished Information
Under section 905.6(a), a person or entity must immediately notify
the Finance Board's Office of General Counsel of any request or legal
process seeking the use or disclosure of unpublished information.
Unless the Finance Board has authorized in writing disclosure of the
requested information, the person or entity must decline to disclose
the information. Section 905.6(b) requires a current or former Finance
Board employee or agent or a supervised entity that must respond to a
subpoena, order, or other legal process, to decline to disclose the
requested information, citing this part as authority. The rule permits
a non-Finance Board person or entity to disclose unpublished
information only after the requester has sought the information from
the Finance Board under this part and a Federal court in a judicial
proceeding in which the Finance Board or the Department of Justice has
had the opportunity to appear, has ordered disclosure.
If disclosure is not authorized, the Finance Board will provide a
copy of part 905 to the requester and advise the requester or the court
or other body that issued the legal process, that the Finance Board has
prohibited disclosure. The Finance Board or the Department of Justice
may intervene in the matter at issue, attempt to have the compulsory
process withdrawn, or register other appropriate objections.
F. Available Information
Sections 905.7 and 905.8 prescribe limits on the scope of
permissible document disclosure or testimony and the manner in which
documents or testimony authorized for disclosure will be made
available. The scope of permissible document disclosure or testimony is
limited to that set forth in the written authorization granted by the
Finance Board. The Finance Board may act to ensure that the scope of
information provided is consistent with the written authorization, for
instance, by reviewing copies of the documents provided to the
requester or a transcript of deposition testimony. Upon request, the
Finance Board will provide certified or authenticated copies of
documents authorized to be disclosed. A party that wants to question a
witness beyond the authorized scope must submit a request for expanded
authorization to the Finance Board. The Finance Board will attempt to
render decisions on such requests in an expedited manner. The Finance
Board generally will not authorize a current employee or agent to
provide expert or opinion testimony for a private party.
When the Finance Board has authorized testimony, it generally will
make the witness available only through written interrogatories or
deposition. Absent unusual circumstances, authorized deposition
testimony will take place at the Finance Board's offices at a time
convenient for the employee. All costs associated with the appearance
must be borne by the requester, including provision of a copy of the
transcript of the deposition at the request of the Office of General
Counsel. The Finance Board will not authorize trial or hearing
testimony unless the requester shows that properly developed deposition
testimony could not be used or would not be adequate at the trial or
hearing. If the authorized testimony is in connection with a legal
proceeding, the requester must cause a subpoena to be served on the
employee in accordance with applicable rules of procedure, with a copy
by registered or certified mail to the Office of General Counsel.
The Finance Board's authorization to provide unpublished
information may include restrictions on the use and disclosure of the
information. With regard to testimony, the Finance Board may condition
its authorization on an agreement of the parties to appropriate
limitations, such as an agreement to keep the transcript of a
deposition under seal or to make the transcript available only to the
parties, the court or other body, or the jury. The Finance Board may
condition a decision to disclose unpublished information by document on
entry of a protective order satisfactory to the Finance Board, by the
court or other body presiding in a legal proceeding or, in non-
adversarial matters, on a written agreement of confidentiality that
limits access of third parties to the unpublished information. In a
legal proceeding in which a protective order already has been entered,
the Finance Board may condition a decision to disclose unpublished
information upon the inclusion of additional or amended provisions in
the protective order. Upon request or on its own initiative, the
Finance Board may authorize use of a deposition transcript or the
disclosed documents in another legal proceeding or non-adversarial
matter.
If the documents or testimony are disclosed in connection with a
legal proceeding, the requester is responsible for promptly notifying
all other parties to the legal proceeding of the disclosure, and, after
entry of a protective order, providing copies of the documents or
testimony to the other parties that are signatories and subject to the
protective order. At the conclusion of the legal proceeding, the
requester must retrieve the documents or testimony from the court or
other body's file as soon as they are no longer required and certify to
the Finance Board that every party covered by the protective order has
destroyed the unpublished information.
G. Fees
Section 905.9 of the interim final rule concerns the assessment and
collection of fees. The Finance Board generally will assess a fee for
the actual costs of searching, copying, authenticating, or certifying
unpublished information it authorizes for use or disclosure. The
Finance Board will assess fees in the same manner it assesses fees for
providing FOIA services under 12 CFR 904.9. The Office of Resource
Management is responsible for billing and collecting the fees. The
Finance Board generally will bill the requester upon completion of the
production but, in certain instances, may require a requester to remit
payment prior to providing the requested information. A requester
promptly must pay the assessed fees by delivering a check or money
order made payable to the ``Federal Housing Finance Board'' to the
Office of Resource Management, located at the Federal Housing Finance
Board's offices at 1777 F Street, N.W., Washington, D.C. 20006.
A requester also is responsible for paying witness fees and mileage
computed in accordance with 28 U.S.C. 1821 upon completion of a
testimonial appearance. If the witness is a current Finance Board
employee or agent or a former employee or agent still in the employ of
the United States, the requester promptly must remit the witness fees
to the Office of Resource Management. If the witness is a former
employee or agent that is not currently employed by the federal
government, the requester promptly must remit the witness fees directly
to the witness.
[[Page 44106]]
III. Notice and Public Participation
The Finance Board is promulgating this procedural rule as an
interim final rule in order to fairly and effectively handle pending
and anticipated requests for unpublished information. However, because
this type of rulemaking generally requires notice and receipt of public
comment, the Finance Board will accept written comments on the interim
final rule on or before October 12, 1999.
IV. Effective Date
For the reasons stated in part III above, the Finance Board for
good cause finds that the interim final rule should become effective on
August 13, 1999. See 5 U.S.C. 553(d)(3).
V. Regulatory Flexibility Act
The Finance Board is adopting part 905 in the form of an interim
final rule and not as a proposed rule. Therefore, the provisions of the
Regulatory Flexibility Act do not apply. See 5 U.S.C. 601(2) and
603(a).
VI. Paperwork Reduction Act
The interim final rule does not contain any collections of
information pursuant to the Paperwork Reduction Act of 1995. See 44
U.S.C. 3501 et seq. Consequently, the Finance Board has not submitted
any information to the Office of Management and Budget for review.
List of Subjects in 12 CFR Part 905
Confidential business information, Federal home loan banks, Freedom
of information, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, the Finance Board hereby
adds 12 CFR part 905 to read as follows:
PART 905--AVAILABILITY OF UNPUBLISHED INFORMATION
Sec.
905.1 Definitions.
905.2 Purposes and scope.
905.3 Prohibition on unauthorized use and disclosure of unpublished
information.
905.4 Requests for unpublished information by document or
testimony.
905.5 Consideration of requests.
905.6 Persons and entities with access to unpublished information.
905.7 Availability of unpublished information by testimony.
905.8 Availability of unpublished information by document.
905.9 Fees.
Authority: 5 U.S.C. 301; 12 U.S.C. 1422b(a)(1).
Sec. 905.1 Definitions.
For purposes of this part:
(a) Finance Board means the agency established as the Federal
Housing Finance Board.
(b) Legal proceeding means any administrative, civil, or criminal
proceeding, including a grand jury or discovery proceeding, in which
neither the Finance Board nor the United States is a party.
(c) Unpublished information means information and documents created
or obtained by the Finance Board in connection with the performance of
official duties, whether the information or documents are in the
possession of the Finance Board, a current or former Finance Board
employee or agent, a supervised entity, a Federal Home Loan Bank
member, government agency, or some other person or entity; and
information and documents created or obtained by, or in the memory of,
a current or former Finance Board employee or agent, that was acquired
in the person's official capacity or in the course of performing
official duties. It does not include information or documents the
Finance Board must disclose under the Freedom of Information Act (5
U.S.C. 552), Privacy Act (5 U.S.C. 552a), or the Finance Board's
implementing regulations (12 CFR parts 904 and 909, respectively). It
also does not include information or documents that were previously
published or disclosed or are customarily furnished to the public in
the course of the performance of official duties such as the annual
report the Finance Board submits to Congress pursuant to section 2B(d)
of the Federal Home Loan Bank Act (12 U.S.C. 1422b(d)), press releases,
Finance Board forms, and materials published in the Federal Register.
(d) Supervised entity means a Federal Home Loan Bank, the Office of
Finance, and the Financing Corporation.
Sec. 905.2 Purpose and scope.
(a) Purpose. The purposes of this part are to:
(1) Maintain the confidentiality and control the dissemination of
unpublished information;
(2) Conserve the time of employees for official duties and ensure
that Finance Board resources are used in the most efficient manner;
(3) Maintain the Finance Board's impartiality among private
litigants; and
(4) Establish an orderly mechanism for the Finance Board to process
expeditiously and respond appropriately to requests for unpublished
information.
(b) Scope. (1) This part applies to a request for and use and
disclosure of unpublished information, including a request for
unpublished information by document or testimony arising out of a legal
proceeding in which neither the Finance Board nor the United States is
a party. It does not apply to a request for unpublished information in
a legal proceeding in which the Finance Board or the United States is a
party or a request for information or records the Finance Board must
disclose under the Freedom of Information Act, Privacy Act, or the
Finance Board's implementing regulations.
(2) This part does not, and may not be relied upon to create any
substantive or procedural right or benefit enforceable against the
Finance Board.
Sec. 905.3 Prohibition on unauthorized use and disclosure of
unpublished information.
(a) In general. Possession or control by any person, supervised
entity, Federal Home Loan Bank member, government agency, or other
entity of unpublished information does not constitute a waiver by the
Finance Board of any privilege or its right to control, supervise, or
impose limitations on, the subsequent use and disclosure of the
information.
(b) Current and former employees and agents. Except as authorized
by this part or otherwise by the Finance Board, no current or former
Finance Board employee or agent may disclose or permit the disclosure
in any manner of any unpublished information to anyone other than a
Finance Board employee or agent for use in the performance of official
duties.
(c) Other persons or entities possessing unpublished information.
(1) Except as authorized in writing by the Finance Board, no person,
supervised entity, Federal Home Loan Bank member, government agency, or
other entity in possession or control of unpublished information may
disclose or permit the use or disclosure of such information in any
manner or for any purpose.
(2) All unpublished information made available under this part
remains the property of the Finance Board and may not be used or
disclosed for any purpose other than that authorized under this part
without the prior written permission of the Finance Board.
(3) Reports of examination, supervisory correspondence, and other
unpublished information lawfully in the possession of a supervised
entity, Federal Home Loan Bank member, or government agency remains the
property of the Finance Board and may not be used or disclosed for any
purpose other than that authorized under this part without the prior
written permission of the Finance Board.
[[Page 44107]]
(4) Any person or entity that discloses or uses unpublished
information except as expressly authorized under this part may be
subject to the penalties provided in 18 U.S.C. 641 and other applicable
laws. A current Finance Board, Federal Home Loan Bank, or Office of
Finance employee also may be subject to administrative or disciplinary
proceedings.
(d) Exception for supervised entities and Federal Home Loan Bank
members. When necessary or appropriate for business purposes, a
supervised entity, Federal Home Loan Bank member, or any director,
officer, employee, or agent thereof, may disclose unpublished
information, including information contained in, or related to,
supervisory correspondence or reports of examination, to a person or
entity officially connected with the supervised entity or Federal Home
Loan Bank member as officer, director, employee, attorney, agent,
auditor, or independent auditor. A supervised entity, Federal Home Loan
Bank member, or a director, officer, employee, or agent thereof, also
may disclose unpublished information to a consultant under this
paragraph if the consultant is under a written contract to provide
services to the supervised entity or Federal Home Loan Bank member and
the consultant has agreed in writing:
(1) To abide by the prohibition on the disclosure of unpublished
information contained in this section; and
(2) That it will not to use the unpublished information for any
purposes other than those stated in its contract to provide services to
the supervised entity or Federal Home Loan Bank member.
(e) Government agencies. The Finance Board may make reports of
examination, supervisory correspondence, and other unpublished
information available to another federal agency or a state agency for
use where necessary in the performance of the agency's official duties.
As used in this paragraph, the term agency does not include a grand
jury.
Sec. 905.4 Requests for unpublished information by document or
testimony.
(a) Form of requests. A request for unpublished information must be
submitted to the Finance Board in writing and include a detailed
description of the basis for the request. At a minimum, the request
must demonstrate that:
(1) The requested information is highly relevant to the purpose for
which it is sought;
(2) The requested information is not available from any other
source;
(3) The need for the information clearly outweighs the need to
maintain its confidentiality; and
(4) The need for the information clearly outweighs the burden on
the Finance Board to produce it.
(b) Requests for documents. If the request is for unpublished
information by document, the request must include the elements in
paragraph (a) of this section and also must adequately describe the
record or records sought by type and date.
(c) Requests for testimony. (1) If the request is for unpublished
information by testimony, the request must include the elements in
paragraph (a) of this section and also must set forth the intended use
of the testimony, a summary of the scope of the testimony requested,
and a showing that no document or the testimony of other non-Finance
Board persons, including retained experts, could be provided and used
in lieu of the testimony.
(2) Upon submitting a request to the Finance Board for unpublished
information by testimony, the requester must notify all other parties
to the matter at issue of the request.
(3) After receipt of a request for unpublished information by
testimony but before the requested testimony occurs, a party to the
matter at issue who did not join in the request and who wishes to
question the witness beyond the scope of the testimony sought by the
request, must timely submit its own request for unpublished information
pursuant to this part.
(d) Requests in connection with legal proceedings. If the request
for unpublished information arises out of a legal proceeding, the
Finance Board generally will require that the legal proceeding already
be filed before it will consider the request. In addition to the
elements in paragraph (a) of this section, requests in connection with
legal proceedings must include the caption and docket number of the
case; the forum; the name, address, phone number, and electronic mail
address, if available, of counsel to all other parties to the legal
proceeding; the requester's interest in the case; a summary of the
issues in litigation; and the reasons for the request, including the
relevance of the unpublished information and how the requested
information will contribute substantially to the resolution of one or
more specifically identified issues in the legal proceeding.
(e) Expedited requests. If a requester seeks a response in less
than 60 days, the request must explain why the request was not
submitted earlier and why the Finance Board should expedite the
request.
(f) Where to submit requests. Send requests for unpublished
information to the Office of General Counsel, Federal Housing Finance
Board, 1777 F Street, N.W., Washington, D.C. 20006.
(g) Additional information. (1) From the requester. The Office of
General Counsel may consult with the requester to refine and limit the
scope of the request to make compliance less burdensome or to obtain
information necessary to make an informed determination on the request.
A requester's failure to cooperate in good faith with the Office of
General Counsel may serve as the basis for a determination not to grant
the request.
(2) From others. The Office of General Counsel may inquire into the
facts and circumstances underlying a request for unpublished
information and rely on sources of information other than the
requester, including other parties to the matter at issue.
Sec. 905.5 Consideration of requests.
(a) Discretion. Each decision concerning the availability of
unpublished information is at the sole discretion of the Finance Board
based on a weighing of all appropriate factors. The decision is a final
agency action that exhausts administrative remedies for disclosure of
the information.
(b) Time to respond. The Finance Board generally will respond in
writing to a request for unpublished information within 60 days of
receipt absent exigent or unusual circumstances and dependent upon the
scope and completeness of the request.
(c) Factors the Finance Board may consider. The factors the Finance
Board may consider in making a determination regarding the availability
of unpublished information include:
(1) Whether and how the requested information is relevant to the
purpose for which it is sought;
(2) Whether information reasonably suited to the requester's needs
other than the requested information is available from another source;
(3) Whether the requested information is privileged;
(4) If the request is in connection with a legal proceeding,
whether the proceeding has been filed;
(5) The burden placed on the Finance Board to respond to the
request;
(6) Whether production of the information would be contrary to the
public interest; and
(7) Whether the need for the information clearly outweighs the need
to maintain the confidentiality of the information.
(d) Disclosure of unpublished information by others. When a person
or
[[Page 44108]]
entity other than the Finance Board has a claim of privilege regarding
unpublished information and the information is in the possession or
control of that person or entity, the Finance Board, at its sole
discretion, may respond to a request for the information by authorizing
the person or entity to disclose the information to the requester
pursuant to an appropriate confidentiality order. Finance Board
authorization to disclose information under this paragraph does not
preclude the person or entity in possession of the unpublished
information from asserting its own privilege, arguing that the
information is not relevant, or asserting any other argument to protect
the information from disclosure.
(e) Notice to supervised entities and Federal Home Loan Bank
members. The Finance Board generally will notify a supervised entity or
Federal Home Loan Bank member that it is the subject of a request,
unless the Finance Board, in its sole discretion, determines that to do
so would advantage or prejudice any of the parties to the matter at
issue.
Sec. 905.6 Persons and entities with access to unpublished
information.
(a) Notice to Finance Board. Any person, including a current or
former Finance Board employee or agent, or any entity, including a
supervised entity, Federal Home Loan Bank member, or government agency
that receives a request for, or is served with a subpoena, order, or
other legal process to disclose unpublished information by document or
testimony, must immediately notify the Office of General Counsel.
(b) Response of person or entity served with request. Unless the
Finance Board has authorized in writing disclosure of the requested
information:
(1) A current or former Finance Board employee or agent or a
supervised entity that must respond to a subpoena, order, or other
legal process, must decline to disclose the requested information,
citing this part as authority.
(2) A non-Finance Board person or entity may not disclose
unpublished information unless:
(i) The requester has sought the information from the Finance Board
under this part; and (ii) After the Finance Board or the Department of
Justice has had the opportunity to appear and oppose disclosure, a
Federal court has ordered the person or entity to disclose the
information.
(c) Finance Board response. If the Finance Board does not authorize
in writing disclosure of the requested information, the Finance Board
will provide a copy of this part to the person or entity at whose
instance the process was issued and advise that person or entity or the
court or other body that the Finance Board has prohibited disclosure of
the information under this part. The Finance Board or the Department of
Justice may intervene in the matter at issue, attempt to have the
compulsory process withdrawn, or register other appropriate objections.
Sec. 905.7 Availability of unpublished information by testimony.
(a) Scope. (1) The scope of permissible testimony is limited to
that set forth in the written authorization granted by the Finance
Board. The Finance Board may act to ensure that the scope of testimony
provided is consistent with the written authorization.
(2) A party to the matter at issue that did not join in a request
for unpublished information who wishes to question a witness beyond the
authorized scope must request expanded authorization under this part.
The Finance Board will attempt to render decisions on such requests in
an expedited manner.
(3) The Finance Board generally will not authorize a current
employee or agent to provide expert or opinion testimony for a private
party.
(b) Manner in which testimony is given. (1) The Finance Board
ordinarily will make the authorized testimony of a former or current
employee or agent available only through written interrogatories or
deposition. The Finance Board will not authorize testimony at a trial
or hearing unless the requester shows that properly developed
deposition testimony could not be used or would be inadequate at the
trial or hearing.
(2) If the Finance Board has authorized testimony in connection
with a legal proceeding, the requester must cause a subpoena to be
served on the employee in accordance with applicable rules of
procedure, with a copy by registered or certified mail to the Office of
General Counsel.
(3) If the authorized testimony is through deposition, the
deposition ordinarily will take place at the Finance Board's offices at
a time that will avoid substantial interference with the performance of
the employee's official duties.
(4) The requester is responsible for all costs associated with an
employee's appearance, including provision of a copy of a transcript of
the deposition at the request of the Office of General Counsel. The
person whose deposition was transcribed does not waive his or her right
to review the transcript and note errors.
(c) Restrictions on use and disclosure. The Finance Board may
condition its authorization of deposition testimony on an agreement of
the parties to appropriate limitations, such as an agreement to keep
the transcript of the testimony under seal or to make the transcript
available only to the parties, the court or other body, or the jury.
Upon request made pursuant to this part or on its own initiative, the
Finance Board may authorize use of a deposition transcript in another
legal proceeding or non-adversarial matter.
(d) Responsibility of litigants. If the testimony is disclosed in
connection with a legal proceeding, the requester is responsible for:
(1) Promptly notifying all other parties to the legal proceeding of
the disclosure, and, after entry of a protective order, providing
copies of the testimony to the other parties who are signatories and
subject to the protective order; and
(2) At the conclusion of the legal proceeding, retrieving the
testimony from the court or other body's file as soon as it is no
longer required and certifying to the Finance Board that every party
covered by the protective order has destroyed the unpublished
information.
Sec. 905.8 Availability of unpublished information by document.
(a) Scope. The scope of permissible document disclosure is limited
to that set forth in the written authorization granted by the Finance
Board. The Finance Board may act to ensure that the scope of documents
provided is consistent with the written authorization.
(b) Restrictions on use and disclosure. The Finance Board may
condition a decision to disclose unpublished information by document on
entry of a protective order satisfactory to the Finance Board by the
court or other body presiding in a legal proceeding or, in non-
adversarial matters, on a written agreement of confidentiality that
limits access of third parties to the unpublished information. In a
legal proceeding in which a protective order already has been entered,
the Finance Board may condition a decision to disclose unpublished
information upon inclusion of additional or amended provisions in the
protective order. Upon request made pursuant to this part or on its own
initiative, the Finance Board may authorize use of the documents in
another legal proceeding or non-adversarial matter.
(c) Responsibility of litigants. If the documents are disclosed in
connection
[[Page 44109]]
with a legal proceeding, the requester is responsible for:
(1) Promptly notifying all other parties to the legal proceeding of
the disclosure, and, after entry of a protective order, providing
copies of the documents to the other parties that are signatories and
subject to the protective order; and
(2) At the conclusion of the legal proceeding, retrieving the
documents from the court or other body's file as soon as they are no
longer required and certifying to the Finance Board that every party
covered by the protective order has destroyed the unpublished
information.
(d) Certification or authentication. If the Finance Board has
authorized disclosure of unpublished information by document, it will
provide certified or authenticated copies of the document upon request.
Sec. 905.9 Fees.
(a) Fees for records search, copying, and certification. Unless
waived or reduced, a requester must pay a fee to the Finance Board for
the costs of searching, copying, authenticating, or certifying
unpublished information in accordance with 12 CFR 904.9. The Office of
Resource Management generally will bill a requester upon completion of
the production, but, in certain instances, may require a requester to
remit payment prior to providing the requested information. To pay fees
assessed under this section, a requester must deliver to the Office of
Resource Management, located at the Federal Housing Finance Board, 1777
F Street, N.W., Washington, D.C. 20006, a check or money order made
payable to the ``Federal Housing Finance Board.''
(b) Witness fees and mileage. (1) Current Finance Board or federal
employees. If the Finance Board authorizes disclosure of unpublished
information by testimony of a current Finance Board employee or agent
or a former Finance Board employee or agent who is still in the employ
of the United States, upon completion of the testimonial appearance the
requester must remit promptly to the Office of Resource Management
payment for witness fees and mileage computed in accordance with 28
U.S.C. 1821.
(2) Former employees or agents. If the Finance Board authorizes
disclosure of unpublished information by testimony of a former Finance
Board employee or agent who is not currently employed by the United
States, upon completion of the testimonial appearance the requester
must remit promptly to the witness any witness fees or mileage due in
accordance with 28 U.S.C. 1821.
Dated: August 6, 1999.
By the Board of Directors of the Federal Housing Finance Board.
Bruce A. Morrison,
Chairperson.
[FR Doc. 99-21060 Filed 8-12-99; 8:45 am]
BILLING CODE 6725-01-P
