[Federal Register: March 12, 2007 (Volume 72, Number 47)]
[Proposed Rules]
[Page 10954-10958]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12mr07-22]
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BROADCASTING BOARD OF GOVERNORS
22 CFR Part 504
Testimony by BBG Employees, Production of Official Records, and
Disclosure of Official Information in Legal Proceedings
AGENCY: Broadcasting Board of Governors.
ACTION: Proposed Rule; Comment Request.
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SUMMARY: The Broadcasting Board of Governors (BBG) seeks public comment
on a proposed rule that would govern access to BBG information and
records in connection with legal proceedings in which neither the
United States nor the BBG is a party. The rule would establish
guidelines for use in determining whether BBG employees will be
permitted to testify or to provide records relating to their official
duties. The rule would also establish procedures that requesters would
have to follow when making demands on or requests to a BBG employee for
official documents or to provide testimony. The proposed rule will
promote uniformity in decisions, conserve the ability of BBG to conduct
official business, preserve its employee resources, protect
confidential information, provide guidance to requestors, minimize
involvement in matters unrelated to its mission and programs, avoid
wasteful allocation of agency resources, and avoid spending public time
and money for private purposes.
DATES: Comments must be received on or before April 11, 2007.
ADDRESSES: Send or deliver comments to the Office of the General
Counsel, Broadcasting Board of Governors, 330 Independence Ave., SW.,
Washington, DC 20237 by mail or fax at (202) 203-4585.
FOR FURTHER INFORMATION CONTACT: Christopher Veith, Assistant General
Counsel, Broadcasting Board of Governors, 330 Independence Ave., SW.,
Washington, DC 20237, phone: (202) 203-4550 or fax at (202) 203-4585.
SUPPLEMENTARY INFORMATION:
Background
The BBG occasionally receives subpoenas and other informal requests
for documents and requests for BBG employees to provide testimony or
evidence in cases in which the BBG is not a party. Usually these
subpoenas or requests are for BBG records that are not available to the
public under the Freedom of Information Act. The BBG may also receive a
request for an
[[Page 10955]]
employee to provide testimony relating to materials contained in BBG's
official records or to provide testimony or information acquired by a
BBG employee during the performance of the employee's official duties.
Although the BBG has rules governing requests for information from
the general public, the BBG currently has no regulations governing
subpoenas and other informal requests for document production and
testimony of BBG employees in legal proceedings. An increase in such
requests in recent years warrants adoption of regulations governing
their submission, evaluation, and processing. Responding to these
requests and subpoenas is not only burdensome, may result in a
significant disruption of a BBG employee's work schedule and possibly
involve the BBG in issues unrelated to its responsibilities. In order
to resolve these problems, many agencies have issued regulations,
similar to the proposed regulation, governing the circumstances and
manner in which an employee may respond to demands for testimony or for
the production of documents. Establishing uniform procedures for legal
processes will ensure timely notice and promote centralized decision-
making. The United States Supreme Court upheld this type of regulation
in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
Briefly summarized, the proposed rule will prohibit disclosure of
nonpublic official records or testimony by the BBG's employees, as
defined in part 504.4, unless there is compliance with the rule. The
proposed rule sets out the information that requesters must provide and
the factors that the BBG will consider in making determinations in
response to requests for testimony or the production of documents.
The charges for witnesses are the same as those provided in Federal
courts and the fees related to production of records are the same as
those charged under FOIA. The charges for time spent by an employee to
prepare for testimony and for searches, copying, and certification of
records by the BBG are authorized under 31 U.S.C. 9701, which permits
an agency to charge for services or things of value that are provided
by the agency.
This rule applies to a range of matters in any legal proceeding in
which the BBG is not a named party and applies to current and former
BBG employees. Both current and former BBG employees are prohibited by
18 U.S.C. 1905 from testifying about specific matters involving
information for which they had responsibility during their active
employment unless permitted to testify as provided in the rule. They
would not be prohibited from testifying about general matters
unconnected with the specific BBG matters for which they had
responsibility.
This rule will ensure a more efficient use of the BBG's resources,
minimize the possibility of involving the BBG in issues unrelated to
its responsibilities, promote uniformity in responding to such
subpoenas and like requests, and maintain the impartiality of the BBG
in matters that are in dispute between other parties. It will also
serve the BBG's interest in protecting sensitive, confidential, and
privileged information and records that are generated in fulfillment of
the BBG's statutory responsibilities.
This rule is internal and procedural rather than substantive. It
does not create a right to obtain official records or the official
testimony of a BBG employee nor does it create any additional right or
privilege not already available to the BBG to deny any demand or
request for testimony or documents. Failure to comply with the
procedures set out in these regulations would be a basis for denying a
demand or request submitted to the BBG.
List of Subjects in 22 CFR Part 504
Administrative practice and procedure.
For the reasons stated in the preamble, the Broadcasting Board of
Governors proposes to amend 22 CFR, Chapter V, by adding part 504, to
read as follows:
PART 504--TESTIMONY BY BBG EMPLOYEES, PRODUCTION OF OFFICIAL
RECORDS, AND DISCLOSURE OF OFFICIAL INFORMATION IN LEGAL
PROCEEDINGS
Subpart A--General Provisions
Sec.
504.1 Scope and purpose.
504.2 Applicability.
504.3 Definitions.
Subpart B--Demands or Requests for Testimony and Production of
Documents
504.4 General prohibition.
504.5 Factors the BBG will consider.
504.6 Filing requirements for litigants seeking documents or
testimony.
504.7 Service of requests or demands.
504.8 Processing requests or demands.
504.9 Final determinations.
504.10 Restrictions that apply to testimony.
504.11 Restrictions that apply to released records.
504.12 Procedure when a decision is not made prior to the time a
response is required.
504.13 Procedure in the event of an adverse ruling.
Subpart C--Schedule of Fees
504.14 Fees.
Subpart D--Penalties
504.15 Penalties.
Authority: 22 U.S.C. 6204.
Subpart A--General Provisions
504.1 Scope and purpose.
(a) These regulations in this subpart establish policy, assign
responsibilities and prescribe procedures with respect to:
(1) The production or disclosure of official information or records
by BBG employees, and
(2) The testimony of current and former BBG employees, relating to
official information, official duties, or the BBG's records, in
connection with federal or state litigation in which the BBG is not a
party.
(b) The BBG intends these provisions to:
(1) Conserve the time of BBG employees for conducting official
business;
(2) Minimize the involvement of BBG employees in issues unrelated
to BBG's mission;
(3) Maintain the impartiality of BBG employees in disputes between
private litigants; and
(4) Protect sensitive, confidential information and the
deliberative processes of the BBG.
(c) In providing for these requirements, the BBG does not waive the
sovereign immunity of the United States.
(d) This part provides guidance for the internal operations of BBG.
It does not create any right or benefit, substantive or procedural,
that a party may rely upon in any legal proceeding against the United
States.
Sec. 504.2 Applicability.
This part applies to demands and requests to current and former
employees for factual or expert testimony relating to official
information or official duties or for production of official records or
information, in legal proceedings in which the BBG is not a named
party. This part does not apply to:
(a) Demands upon or requests for a BBG employee to testify as to
facts or events that are unrelated to his or her official duties or
that are unrelated to the functions of the BBG;
(b) Demands upon or requests for a former BBG employee to testify
as to matters in which the former employee was not directly or
materially involved while at the BBG;
(c) Requests for the release of records under the Freedom of
Information Act,
[[Page 10956]]
5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; or
(d) Congressional demands and requests for testimony, records or
information.
Sec. 504. 3 Definitions.
The following definitions apply to this part:
(a) Demand means an order, subpoena, or other command of a court or
other competent authority for the production, disclosure, or release of
records or for the appearance and testimony of a BBG employee in a
legal proceeding.
(b) General Counsel means the General Counsel of the BBG or a
person to whom the General Counsel has delegated authority under this
part.
(c) Legal proceeding means any matter before a court of law,
administrative board or tribunal, commission, administrative law judge,
hearing officer or other body that conducts a legal or administrative
proceeding. Legal proceeding includes all phases of litigation.
(d) BBG means the Broadcasting Board of Governors.
(e) BBG employee means:
(1) Any current or former employee of the BBG.
(2) This definition does not include persons who are no longer
employed by the BBG and who 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 with the
BBG.
(f) Records or official records and information means all
information in the custody and control of the BBG, relating to
information in the custody and control of the BBG, or acquired by a BBG
employee in the performance of his or her official duties or because of
his or her official status, while the individual was employed by the
BBG.
(g) Request means any informal request, by whatever method, for the
production of records and information or for testimony which has not
been ordered by a court or other competent authority.
(h) Testimony means any written or oral statements, including
depositions, answers to interrogatories, affidavits, declarations,
interviews, and statements made by an individual in connection with a
legal proceeding.
Subpart B--Demands or Requests for Testimony and Production of
Documents
Sec. 504.4 General prohibition.
(a) In any United States federal, state, and local proceeding or
administrative action, or proceeding or administrative action conducted
in a foreign country, in which the BBG is not a party, no BBG employee
shall, in response to a demand or request for official records or
information, furnish or produce documents or testimony as to any
material contained in BBG files, any information relating to or based
upon material contained in BBG files, or any information or material
acquired as part of the performance of that person's official duties
(or because of that person's official status) without the prior written
approval of the General Counsel.
(b) Whenever a request or demand for information is made upon a BBG
employee, the employee, wherever located, shall immediately prepare a
report that specifically describes the testimony or documents sought
and immediately notify the General Counsel. The BBG employee shall then
await instructions from the General Counsel concerning a response to
the request or demand. The failure of any BBG employee to follow the
procedures specified in this subpart neither creates nor confers any
rights, privileges, or benefits on any person or party.
Sec. 504.5 Factors the BBG will consider.
The General Counsel, in his or her sole discretion, may grant an
employee permission to testify on matters relating to official
information, or produce official records and information, in response
to a demand or request. Among the relevant factors that the General
Counsel may consider in making this decision are whether:
(a) The purposes of this part are met;
(b) Allowing such testimony or production of records would be
necessary to prevent a miscarriage of justice;
(c) Allowing such testimony or production of records would assist
or hinder the BBG in performing its statutory duties;
(d) Allowing such testimony or production of records would be in
the best interest of the BBG or the United States;
(e) The records or testimony can be obtained from other sources;
(f) The demand or request is unduly burdensome or otherwise
inappropriate under the applicable rules of discovery or the rules of
procedure governing the case or matter in which the demand or request
arose;
(g) Disclosure would violate a statute, Executive Order or
regulation;
(h) Disclosure would reveal confidential, sensitive, or privileged
information, trade secrets or similar, confidential or financial
information, otherwise protected information, or information which
would otherwise be inappropriate for release;
(i) Disclosure would impede or interfere with an ongoing law
enforcement investigation or proceeding, or compromise constitutional
rights or national security interests;
(j) Disclosure would result in the BBG appearing to favor one
litigant over another;
(k) Whether the request was served before the demand;
(l) A substantial Government interest is implicated;
(m) The demand or request is within the authority of the party
making it; and
(n) The demand or request is sufficiently specific to be answered
and/or can be limited to information to that which would be consistent
with the factors specified herein.
Sec. 504. 6 Filing requirements for litigants seeking documents or
testimony.
A litigant must comply with the following requirements when filing
a request for official records and information or testimony under this
subpart. A request should be filed before a demand.
(a) The request must be in writing and must be submitted to the
General Counsel.
(b) The written request must contain the following information:
(1) The caption of the legal proceeding, docket number, and name
and address of the court or other authority involved;
(2) 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;
(3) 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;
(4) A statement as to how the need for the information outweighs
any need to maintain the confidentiality of the information and
outweighs the burden on the BBG to produce the records or provide
testimony;
(5) A statement indicating that the information sought is not
available from another source, from other persons or entities, or from
the testimony of someone other than a BBG employee, such as a retained
expert;
(6) If testimony is requested, the intended use of the testimony,
and a showing that no document could be provided and used in lieu of
testimony;
(7) A description of all prior decisions, orders, or pending
motions in
[[Page 10957]]
the case that bear upon the relevance of the requested records or
testimony;
(8) The name, address, and telephone number of counsel to each
party in the case; and
(9) An estimate of the amount of time that the requester and other
parties will require for each BBG employee for time spent by the
employee to prepare for testimony, in travel, and for attendance in the
legal proceeding.
(c) The BBG reserves the right to require additional information to
complete the request where appropriate.
(d) The request should be submitted at least 30 days before the
date that records or testimony is required. Requests submitted in less
than 30 days before records or testimony is required must be
accompanied by a written explanation stating the reasons for the late
request and the reasons for expedited processing.
(e) Failure to cooperate in good faith to enable the General
Counsel to make an informed decision may serve as the basis for a
determination not to comply with the request.
(f) The request should state that the requester will provide a copy
of the BBG employee's statement free of charge and that the requester
will permit the BBG to have a representative present during the
employee's testimony.
Sec. 504.7 Service of requests or demands.
Requests or demands for official records or information or
testimony under this Subpart must be served on the General Counsel,
BBG, 330 Independence Ave., SW., Washington, DC 20237 by mail or fax at
(202) 203-4585 and clearly marked ``Part 504--Request for Testimony or
Official Records in Legal Proceedings.''
Sec. 504.8 Processing requests or demands.
(a) After receiving service of a request or demand for testimony,
the General Counsel will review the request and, in accordance with the
provisions of this Subpart, determine whether, or under what
conditions, to authorize the employee to testify on matters relating to
official information and/or produce official records and information.
(b) Absent exigent circumstances, the BBG will issue a
determination within 30 days from the date the request is received.
(c) The General Counsel may grant a waiver of any procedure
described by this Subpart where a waiver is considered necessary to
promote a significant interest of the BBG or the United States, or for
other good cause.
(d) Certification (authentication) of copies of records. The BBG
may certify that records are true copies in order to facilitate their
use as evidence. If a requester seeks certification, the requester must
request certified copies from the BBG at least 30 days before the date
they will be needed. The request should be sent to the BBG General
Counsel.
Sec. 504.9 Final determinations.
The General Counsel makes the final determination on demands or
requests to employees for production of official records and
information or testimony in litigation in which the BBG is not a party.
All final determinations are within the sole discretion of the General
Counsel. The General Counsel will notify the requester and, when
appropriate, the court or other competent authority of the final
determination, the reasons for the grant or denial of the request, and
any conditions that the General Counsel may impose on the release of
records or information, or on the testimony of a BBG employee. The
General Counsel's decision exhausts administrative remedies for
discovery of the information.
Sec. 504.10 Restrictions that apply to testimony.
(a) The General Counsel may impose conditions or restrictions on
the testimony of BBG employees including, for example:
(1) Limiting the areas of testimony;
(2) Requiring the requester and other parties to the legal
proceeding to agree that the transcript of the testimony will be kept
under seal;
(3) Requiring that the transcript will be used or made available
only in the particular legal proceeding for which testimony was
requested. The General Counsel may also require a copy of the
transcript of testimony at the requester's expense.
(b) The BBG may offer the employee's written declaration in lieu of
testimony.
(c) If authorized to testify pursuant to this part, an employee may
testify as to facts within his or her personal knowledge, but, unless
specifically authorized to do so by the General Counsel, the employee
shall not:
(1) Disclose confidential or privileged information; or
(2) For a current BBG employee, testify as an expert or opinion
witness with regard to any matter arising out of the employee's
official duties or the functions of the BBG unless testimony is being
given on behalf of the United States (see also 5 CFR 2635.805).
(d) The scheduling of an employee's testimony, including the amount
of time that the employee will be made available for testimony, will be
subject to the BBG's approval.
Sec. 504.11 Restrictions that apply to released records.
(a) The General Counsel may impose conditions or restrictions on
the release of official records and information, including the
requirement that parties to the proceeding obtain a protective order or
execute a confidentiality agreement to limit access and any further
disclosure. The terms of the protective order or of a confidentiality
agreement must be acceptable to the General Counsel. In cases where
protective orders or confidentiality agreements have already been
executed, the BBG may condition the release of official records and
information on an amendment to the existing protective order or
confidentiality agreement.
(b) If the General Counsel so determines, original BBG records may
be presented for examination in response to a request, but they may not
be presented as evidence or otherwise used in a manner by which they
could lose their identity as official BBG records, nor may they be
marked or altered. In lieu of the original records, certified copies
may be presented for evidentiary purposes.
Sec. 504.12 Procedure when a decision is not made prior to the time a
response is required.
If a response to a demand or request is required before the General
Counsel can make the determination referred to in Sec. 504.9, the
General Counsel, when necessary, will provide the court or other
competent authority with a copy of this part, inform the court or other
competent authority that the request is being reviewed, provide an
estimate as to when a decision will be made, and seek a stay of the
demand or request pending a final determination.
Sec. 504. 13 Procedure in the event of an adverse ruling.
If the court or other competent authority fails to stay a demand or
request, the employee upon whom the demand or request is made, unless
otherwise advised by the General Counsel, will appear, if necessary, at
the stated time and place, produce a copy of this part, state that the
employee has been advised by counsel not to provide the requested
testimony or produce documents, and respectfully decline to comply with
the demand or request, citing United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951).
Subpart C--Schedule of Fees
Sec. 504.14 Fees.
(a) Generally. The General Counsel may condition the production of
records or appearance for testimony upon
[[Page 10958]]
advance payment of a reasonable estimate of the costs to the BBG.
(b) Fees for records. Fees for producing records will include fees
for searching, reviewing, and duplicating records, costs of attorney
time spent in reviewing the request, and expenses generated by
materials and equipment used to search for, produce, and copy the
responsive information. Costs for employee time will be calculated on
the basis of the hourly pay of the employee (including all pay,
allowances, and benefits). Fees for duplication will be the same as
those charged by the BBG in its Freedom of Information Act regulations
at 22 CFR Part 503.
(c) Witness fees. Fees for attendance by a witness will include
fees, expenses, and allowances prescribed by the court's rules. If no
such fees are prescribed, witness fees will be determined based upon
the rule of the Federal district court closest to the location where
the witness will appear and on 28 U.S.C. 1821, as applicable. Such fees
will include cost of time spent by the witness to prepare for
testimony, in travel and for attendance in the legal proceeding, plus
travel costs.
(d) Payment of fees. A requester must pay witness fees for current
BBG employees and any record certification fees by submitting to the
General Counsel a check or money order for the appropriate amount made
payable to the Treasury of the United States. In the case of testimony
of former BBG employees, the requester must pay applicable fees
directly to the former BBG employee in accordance with 28 U.S.C. 1821
or other applicable statutes.
(e) Waiver or reduction of fees. The General Counsel, in his or her
sole discretion, may, upon a showing of reasonable cause, waive or
reduce any fees in connection with the testimony, production, or
certification of records.
(f) De minimis fees. Fees will not be assessed if the total charge
would be $10.00 or less.
Subpart D--Penalties
Sec. 504.15 Penalties.
(a) An employee who discloses official records or information or
gives testimony relating to official information, except as expressly
authorized by the BBG, or as ordered by a Federal court after the BBG
has had the opportunity to be heard, may face penalties as provided in
any applicable enforcement statute.
(b) A current BBG employee who testifies or produces official
records and information in violation of this part shall be subject to
disciplinary action and, if done for a valuable consideration, may
subject that person to criminal prosecution.
Dated: March 6, 2007.
Carol F. Baker,
Director, Office of Administration.
[FR Doc. E7-4329 Filed 3-9-07; 8:45 am]
BILLING CODE 8610-01-P