Rules Governing Compliance With Subpoenas, Summonses, and Court Orders for the Office of Inspector General

Citation86 FR 14539
CourtPostal Service
Publication Date17 Mar 2021
Record Number2021-04210
Federal Register, Volume 86 Issue 50 (Wednesday, March 17, 2021)
[Federal Register Volume 86, Number 50 (Wednesday, March 17, 2021)]
                [Rules and Regulations]
                [Pages 14539-14541]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2021-04210]
                =======================================================================
                -----------------------------------------------------------------------
                POSTAL SERVICE
                39 CFR Part 230
                Rules Governing Compliance With Subpoenas, Summonses, and Court
                Orders for the Office of Inspector General
                AGENCY: Postal ServiceTM.
                ACTION: Final rule.
                -----------------------------------------------------------------------
                SUMMARY: The Postal Service is amending the Code of Federal Regulations
                to state rules that govern compliance with subpoenas, summonses, and
                court orders served on employees of the Office of Inspector General
                where neither the Postal Service, the United States, nor any other
                Federal agency is a party.
                DATES: Effective March 17, 2021.
                FOR FURTHER INFORMATION CONTACT: Matthew C. Glover, Director, Legal
                Services, Office of Inspector General, at (703) 248-4584.
                SUPPLEMENTARY INFORMATION: On October 3, 2003, the Postal Service
                published rules governing compliance with subpoenas, summonses, and
                court orders served on employees of the Office of Inspector General.
                 Those rules appear in subpart B of part 230. This publication
                amends and updates the existing rules.
                List of Subjects in 39 CFR Part 230
                 Administrative practice and procedure.
                 For the reasons stated in the preamble, the Postal Service amends
                39 CFR part 230 as follows:
                PART 230--OFFICE OF INSPECTOR GENERAL
                0
                1. The authority citation for part 230 continues to read as follows:
                 Authority: 5 U.S.C. app. 3; 39 U.S.C. 401(2) and 1001.
                0
                2. Revise subpart B to read as follows:
                Subpart B--Rules Governing Compliance With Subpoenas, Summonses,
                and Court Orders by Postal Employees Within the Office of Inspector
                General Where Neither the Postal Service, the United States, Nor
                Any Other Federal Agency Is a Party
                Sec. 230.10 Demands for records or testimony.
                 (a) Scope and applicability. (1) This section sets forth the Touhy
                regulations of the U.S. Postal Service Office of Inspector General. It
                applies to situations where an employee of the Office of Inspector
                General has been summoned, subpoenaed, or given a court order to
                produce documents or provide testimony in connection with any Federal,
                State, local court, administrative, or legislative proceeding.
                 (2) This section does not apply to:
                 (i) Proceedings where the United States, the Postal Service, or any
                other Federal agency is named as a party;
                 (ii) Congressional requests or subpoenas for testimony or
                documents; or
                 (iii) Appearances by employees in their private capacities in
                proceedings unrelated to their Postal Service employment.
                 (3) This section should be read together with the Freedom of
                Information Act (FOIA), 5 U.S.C. 552a, which provides additional
                information about access to records. The provisions of this section do
                not affect rights and procedures governing public access to official
                documents pursuant to the FOIA.
                 (4) This section does not create any right or benefit, substantive
                or procedural, enforceable by any party against the Office of Inspector
                General or the U.S. Postal Service.
                 (b) General prohibition. (1) No employee may testify or produce
                documents concerning information acquired in the course of employment
                or as a result of his or her relationship with the Postal Service in
                any case or matter, unless authorized to do so by an authorizing
                official.
                 (2) Without written authorization from the authorizing official,
                the employee must respectfully decline to produce documents, testify,
                or otherwise disclose the requested information. If the authorization
                is denied or not received by the return date, the employee (together
                with counsel, where appropriate) shall appear at the stated time and
                place, produce a copy of this section, and respectfully decline to
                testify or produce any document on the basis of the regulations in this
                section.
                 (3) If an attempt is made to compel production of documents during
                the employee's testimony, the employee is directed to decline to
                produce the item or information and to state that the material cannot
                be disclosed or produced without the approval of the authorizing
                official.
                 (c) Procedure to request documents or testimony. (1) All demands
                seeking the production of nonpublic documents or employee testimony
                concerning matters relating to their official duties shall be made in
                writing and conform to the requirements outlined in paragraphs (c)(2)
                and (3) of this section.
                 (2) The requesting party shall serve a summons or subpoena issued
                in accordance with the appropriate rules of procedure on the General
                Counsel to the Inspector General at the Office of Inspector General,
                1735 North Lynn Street, Arlington, VA 22209-2020.
                 (3) Together with a summons or subpoena served on the General
                Counsel, the requesting party shall include an affidavit or sworn
                declaration containing the following information:
                 (i) The title of the case and the forum where it will be heard;
                 (ii) The party's interest in the case;
                 (iii) The reasons for the demand;
                 (iv) If testimony is sought, a detailed summary of the anticipated
                testimony;
                 (v) If testimony is sought, a showing that Office of Inspector
                General records could not be provided and used in place of the
                requested testimony;
                 (vi) The intended use of the documents or testimony; and
                 (vii) An affirmative statement that the documents or testimony is
                necessary for defending or prosecuting the case at issue.
                 (d) Evaluation of a demand for documents or testimony. (1) The
                authorizing official will consider the factors in paragraphs (d)(1)(i)
                through (viii) of this section when deciding whether to authorize
                testimony or the production of documents:
                 (i) Statutory restrictions, as well as any legal objection,
                exemption, or privilege that may apply;
                [[Page 14540]]
                 (ii) Relevant legal standards for disclosure of nonpublic
                information and documents;
                 (iii) Office of Inspector General rules and regulations;
                 (iv) The public interest;
                 (v) Minimizing or preventing expenditures of Office of Inspector
                General time and resources solely for private purposes;
                 (vi) Minimizing the appearance of improperly favoring one litigant
                over another;
                 (vii) Minimizing the possibility that the public will misconstrue
                variances between personal opinions of Office of Inspector General
                employees and agency policy; and
                 (viii) Preserving the integrity of the administrative process.
                 (2) Where, on the basis of its investigation, the Office of
                Inspector General has requested or recommended that a State or local
                prosecuting authority pursue a criminal prosecution or has otherwise
                approved such a prosecution, that prosecuting authority will be deemed
                to have made a proper request for information to be used in connection
                with that prosecution. With respect to other criminal matters pursued
                in state or local courts, the consideration shall also be given to the
                additional factors in paragraphs (d)(2)(i) through (iv) of this
                section:
                 (i) The seriousness of the violation or crime involved;
                 (ii) The past history or criminal record of the violator or
                accused;
                 (iii) The importance of the legal issues presented; and
                 (iv) The relatedness of the crime to the Office of Inspector
                General's mission.
                 (3) The following records described in paragraphs (d)(2)(i) through
                (iii) of this section will not be released:
                 (i) Records required to remain confidential by the Freedom of
                Information Act, the Privacy Act, this part, and part 262 of this
                chapter,
                 (ii) Records containing information relating to an employee's
                security or loyalty; and
                 (iii) Original records.
                 (4)(i) The following records and testimony may only be produced
                under the circumstances described in paragraphs (d)(4)(i)(A) through
                (C) of this section:
                 (A) The Office of Inspector General Manual and other operating
                instructions issued to employees when specifically authorized after
                consultation with the General Counsel to the Inspector General;
                 (B) Office of Inspector General criminal investigative reports when
                specifically authorized after consulting with the General Counsel to
                the Inspector General; and
                 (C) Information relating to confidential investigative techniques,
                confidential sources of information, and information that must be keep
                confidential under the Inspector General Act, as amended, 5 U.S.C. app.
                3. Where the authorizing official determines this information would
                otherwise be appropriate for release under this part, the Office of
                Inspector General may request an in camera review to determine the
                necessity for its release.
                 (ii) The specific limitations on the production of certain
                categories of information set forth in paragraphs (d)(4)(i)(A) through
                (C) of this section do not require or imply that other documents or
                testimony will be authorized without limitation.
                 (5) When authorizing testimony or the release of documents, the
                authorizing official will establish the extent of the Office of
                Inspector General's response.
                 (i) Permission to testify or to release documents in all cases will
                be limited to matters outlined in the affidavit or declaration
                described in paragraph (c)(3) of this section, or to such matters as
                deemed appropriate by the authorizing official.
                 (ii) If the authorizing official allows the production of documents
                or testimony, arrangements shall be made for the taking of testimony or
                receipt of documents by the method least disruptive to the employee's
                official duties. Testimony may, for example, be provided by affidavits,
                answers to interrogatories, written depositions, or depositions
                transcribed, recorded, or preserved by any other means allowable by
                law.
                 (iii) The Inspector General, authorizing official, or a delegee may
                designate an employee other than the employee identified in the request
                to respond to a request for an appearance.
                 (6) Upon the authorizing official's issuance of a final
                determination not to authorize testimony or release records, the party
                making the request may consult or negotiate with the authorizing
                official to refine and limit the demand.
                 (7) Notwithstanding the Office of Inspector General's general
                commitment to offer all possible assistance to the courts, the
                disclosure of information falling within the scope of this part is a
                matter of discretion, resting with the authorizing official. If, in the
                opinion of the authorizing official requested documents should not be
                released or testimony should not be provided, that determination will
                be final.
                 (e) Representation of an employee in any appearance. At the option
                of the authorizing official, an Office of Inspector General attorney
                may make an appearance on behalf of the Office of Inspector General and
                assist an employee whose appearance has been requested and authorized.
                The authorizing official may also request assistance from the U.S.
                Department of Justice.
                 (f) Expert or opinion witness. Unless authorized by the authorizing
                official, an employee may not testify as an expert or opinion witness
                regarding any matter arising out of the employee's duties or functions
                at the Office of Inspector General for any party other than the United
                States. A litigant must first obtain the permission of an authorizing
                official before designating an employee as an expert or opinion
                witness.
                 (g) Costs and fees. (1) The Office of Inspector General is
                authorized to charge reasonable fees to parties demanding documents or
                information. Unless determined by 28 U.S.C. 1821 or other applicable
                statute, the costs of responding to a request for documents or
                testimony shall be borne by the requesting party. As determined by the
                Office of Inspector General, costs calculated to reimburse the Office
                for the cost of responding to a demand may include:
                 (i) The costs of time expended by employees to process and respond
                to the demand;
                 (ii) Attorney time for reviewing, responding to, or processing the
                demand and for legal work in connection with the demand;
                 (iii) Expenses generated by equipment used to search for, produce,
                and copy the requested information;
                 (iv) Expenses attendant upon an employee's absence from his or her
                official duties in connection with the case or matter, including the
                employee's salary and applicable overhead charges;
                 (v) Travel costs of any employees who testify or are requested to
                testify and any agency attorney or other representative who travels in
                connection with a request for testimony, including lodging and per
                diem, assessed, as applicable, at the rates and in the manner specified
                in 39 CFR 265.9; and
                 (vi) Other costs of providing testimony, including the cost of
                transcripts.
                 (2) At the discretion of the Office of Inspector General where
                appropriate, fees and costs may be estimated and collected before
                testimony is given.
                 (h) Definitions. The following definitions apply to this section.
                 Authorizing official means the Inspector General or an official
                designated by the Inspector General to
                [[Page 14541]]
                authorize release of documents or employee testimony.
                 Case or matter means any civil or criminal proceeding before a
                court of law, administrative board, hearing officer, or other body
                conducting a judicial or administrative proceeding. The term also
                includes proceedings in legislative bodies other than the Congress of
                the United States.
                 Demand means any request, order, or subpoena for testimony or the
                production of documents.
                 Document includes all information falling within the scope of the
                terms ``documents'' and ``electronically stored information'' in
                Federal Rule of Civil Procedure 34(a) and any analogous rules
                applicable to the case or matter in which a demand is made.
                 Employee includes all current and former employees of the Office of
                Inspector General (whether temporary or permanent, part-time or full-
                time), employees of the Postal Service assigned or detailed to the
                Office of Inspector General, student interns, student cooperatives,
                contractors, and employees of contractors who have or had access to
                Office of Inspector General information and records.
                 Nonpublic means all documents or information not subject to
                mandatory public disclosure under 39 CFR 265.6(b) or that must be kept
                confidential under the Inspector General Act of 1978 as amended, 5
                U.S.C. app. 3.
                 Testify or testimony include in-person oral statements before any
                body conducting a judicial, administrative, or legislative proceeding,
                statements made in depositions, answers to interrogatories,
                declarations, affidavits, or other similar documents.
                Ruth Stevenson,
                Chief Counsel, Federal Compliance.
                [FR Doc. 2021-04210 Filed 3-16-21; 8:45 am]
                BILLING CODE P