[Code of Federal Regulations]

[Title 34, Volume 1]

[Revised as of July 1, 2006]

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

[CITE: 34CFR8.5]



[Page 30-31]

 

                           TITLE 34--EDUCATION

 

PART 8_DEMANDS FOR TESTIMONY OR RECORDS IN LEGAL PROCEEDINGS--Table 

of Contents

 

Sec.  8.5  What procedures are followed in response to a demand for 

records?



    (a)(1) After an employee receives a demand for records issued 

pursuant to the rules governing the legal proceeding in which the demand 

arises, the employee shall immediately notify the Secretary and request 

instructions.

    (2) If an employee receives any other demand for records, the 

Department--

    (i) Considers the demand to be a request for records under the 

Freedom of Information Act; and

    (ii) Handles the demand under rules governing public disclosure, as 

established in 34 CFR part 5.

    (b) An employee may not produce records in response to a demand as 

described in paragraph (a)(1) of this section without the prior written 

authorization of the Secretary.

    (c) The Secretary may make these records available if the Secretary 

determines that the demand satisfies the requirements of Sec.  8.3 and 

that disclosure--

    (1) Would be appropriate under the rules of procedure governing the 

matter in which the demand arises and other applicable laws, rules, and 

regulations; and

    (2) Would not be contrary to an interest of the United States, which 

includes furthering a public interest of the Department and protecting 

the human and financial resources of the United States.

    (d) If a response to a demand for records as described in paragraph 

(a)(1) of this section is required before the Secretary determines 

whether to allow an employee to produce those records, the employee or 

counsel for the employee shall--

    (1) Inform the court or other authority of the regulations in this 

part; and



[[Page 31]]



    (2) Request that the demand be stayed pending the employee's receipt 

of the Secretary's instructions.

    (e) If the court or other authority declines the request for a stay, 

or rules that the employee must comply with the demand regardless of the 

Secretary's instructions, the employee or counsel for the employee shall 

respectfully decline to comply with the demand, citing United States ex 

rel. Touhy v. Ragen, 340 U.S. 462 (1951), and the regulations in this 

part.



(Authority: 5 U.S.C. 301; 5 U.S.C. 552; 20 U.S.C. 3474)