[Code of Federal Regulations]

[Title 28, Volume 1]

[Revised as of July 1, 2005]

From the U.S. Government Printing Office via GPO Access

[CITE: 28CFR16.24]



[Page 280-282]

 

                    TITLE 28--JUDICIAL ADMINISTRATION

 

                    CHAPTER I--DEPARTMENT OF JUSTICE

 

PART 16_PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION--Table of 

Contents

 

   Subpart B_Production or Disclosure in Federal and State Proceedings

 

Sec. 16.24  Procedure in the event of a demand where disclosure is not 

otherwise authorized.



    (a) Whenever a matter is referred under Sec. 16.22 of this part to 

a U.S. Attorney or, under Sec. 16.23 of this part, to an Assistant 

Attorney General, the Director of the EOUST, or their designees 

(hereinafter collectively referred to as the ``responsible official''), 

the responsible official shall immediately advise the official in charge 

of the bureau, division, office, or agency of the Department that was 

responsible for the collection, assembly, or other preparation of the 

material demanded or that, at the time the person whose testimony was 

demanded acquired the information in question, employed such person 

(hereinafter collectively referred to as the ``originating component''), 

or that official's designee. In any instance in which the responsible 

official is also the official in charge of the originating component, 

the responsible official may perform all functions and make all 

determinations that this regulation vests in the originating component.

    (b) The responsible official, subject to the terms of paragraph (c) 

of this section, may authorize the appearance and testimony of a present 

or former Department employee, or the production of material from 

Department files if:

    (1) There is no objection after inquiry of the originating 

component;

    (2) The demanded disclosure, in the judgment of the responsible 

official, is appropriate under the factors specified in Sec. 16.26(a) 

of this part; and

    (3) None of the factors specified in Sec. 16.26(b) of this part 

exists with respect to the demanded disclosure.

    (c) It is Department policy that the responsible official shall, 

following any necessary consultation with the originating component, 

authorize testimony by a present or former employee of the Department or 

the production of material from Department files without further 

authorization from Department officials whenever possible: Provided, 

That, when information is collected, assembled, or prepared in 

connection with litigation or an investigation supervised by a division 

of the Department or by the EOUST, the Assistant Attorney General in 

charge of such a division or the Director of the EOUST may require that 

the originating component obtain the division's



[[Page 281]]



or the EOUST's approval before authorizing a responsible official to 

disclose such information. Prior to authorizing such testimony or 

production, however, the responsible official shall, through negotiation 

and, if necessary, appropriate motions, seek to limit the demand to 

information, the disclosure of which would not be inconsistent with the 

considerations specified in Sec. 16.26 of this part.

    (d)(1) In a case in which the United States is not a party, if the 

responsible U.S. attorney and the originating component disagree with 

respect to the appropriateness of demanded testimony or of a particular 

disclosure, or if they agree that such testimony or such a disclosure 

should not be made, they shall determine if the demand involves 

information that was collected, assembled, or prepared in connection 

with litigation or an investigation supervised by a division of this 

Department or the EOUST. If so, the U.S. attorney shall notify the 

Director of the EOUST or the Assistant Attorney General in charge of the 

division responsible for such litigation or investigation, who may:

    (i) Authorize personally or through a Deputy Assistant Attorney 

General, the demanded testimony or other disclosure of the information 

if such testimony or other disclosure, in the Assistant or Deputy 

Assistant Attorney General's judgment or in the judgment of the Director 

of the EOUST, is consistent with the factors specified in Sec. 16.26(a) 

of this part, and none of the factors specified in Sec. 16.26(b) of 

this part exists with respect to the demanded disclosure;

    (ii) Authorize, personally or by a designee, the responsible 

official, through negotiations and, if necessary, appropriate motions, 

to seek to limit the demand to matters, the disclosure of which, through 

testimony or documents, considerations specified in Sec. 16.26 of this 

part, and otherwise to take all appropriate steps to limit the scope or 

obtain the withdrawal of a demand; or

    (iii) If, after all appropriate steps have been taken to limit the 

scope or obtain the withdrawal of a demand, the Director of the EOUST or 

the Assistant or Deputy Assistant Attorney General does not authorize 

the demanded testimony or other disclosure, refer the matter, personally 

or through a Deputy Assistant Attorney General, for final resolution to 

the Deputy or Associate Attorney General, as indicated in Sec. 16.25 of 

this part.

    (2) If the demand for testimony or other disclosure in such a case 

does not involve information that was collected, assembled, or prepared 

in connection with litigation or an investigation supervised by a 

division of this Department, the originating component shall decide 

whether disclosure is appropriate, except that, when especially 

significant issues are raised, the responsible official may refer the 

matter to the Deputy or Associate Attorney General, as indicated in 

Sec. 16.25 of this part. If the originating component determines that 

disclosure would not be appropriate and the responsible official does 

not refer the matter for higher level review, the responsible official 

shall take all appropriate steps to limit the scope or obtain the 

withdrawal of a demand.

    (e) In a case in which the United States is a party, the Assistant 

General or the Director of the EOUST responsible for the case or matter, 

or such persons' designees, are authorized, after consultation with the 

originating component, to exercise the authorities specified in 

paragraph (d)(1) (i) through (iii) of this section: Provided, That if a 

demand involves information that was collected, assembled, or prepared 

originally in connection with litigation or an investigation supervised 

by another unit of the Department, the responsible official shall notify 

the other division or the EOUST concerning the demand and the 

anticipated response. If two litigating units of the Department are 

unable to resolve a disagreement concerning disclosure, the Assistant 

Attorneys General in charge of the two divisions in disagreement, or the 

Director of the EOUST and the appropriate Assistant Attorney General, 

may refer the matter to the Deputy or Associate Attorney General, as 

indicated in Sec. 16.25(b) of this part.

    (f) In any case or matter in which the responsible official and the 

originating component agree that it would not be appropriate to 

authorize testimony or



[[Page 282]]



otherwise to disclose the information demanded, even if a court were so 

to require, no Department attorney responding to the demand should make 

any representation that implies that the Department would, in fact, 

comply with the demand if directed to do so by a court. After taking all 

appropriate steps in such cases to limit the scope or obtain the 

withdrawal of a demand, the responsible official shall refer the matter 

to the Deputy or Associate Attorney General, as indicated in Sec. 16.25 

of this part.

    (g) In any case or matter in which the Attorney General is 

personally involved in the claim of privilege, the responsible official 

may consult with the Attorney General and proceed in accord with the 

Attorney General's instructions without subsequent review by the Deputy 

or Associate Attorney General.