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Public Access to HUD Records Under the Freedom of Information Act (FOIA) and Production of Material or Provision of Testimony by HUD Employees
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[Federal Register: February 26, 2007 (Volume 72, Number 37)]
[Rules and Regulations]
[Page 8579-8584]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26fe07-22]
[[Page 8580]]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 15
[Docket No. FR-5015-F-02]
RIN 2501-AD18
Public Access to HUD Records Under the Freedom of Information Act (FOIA)
and Production of Material or Provision of Testimony by HUD Employees
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
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SUMMARY: This final rule clarifies and explains the various types of
requests for HUD documents and testimony by HUD employees that are
intended to be covered by the Department's document production and
testimony approval regulations. This final rule describes the
procedures to be followed by a party in making a demand for HUD
documents and HUD testimony. The final rule also explains the standards
to be followed by HUD in determining whether production of documents or
testimony should be permitted and, if so, any conditions or
restrictions that HUD should impose. This final rule follows
publication of an August 15, 2006, proposed rule on which HUD received
one public comment. After careful consideration of the issues raised by
the commenter, HUD has decided to adopt the August 15, 2006, proposed
rule with minor changes.
DATES: Effective Date: March 28, 2007.
FOR FURTHER INFORMATION CONTACT: Nancy Christopher, Associate General
Counsel for Litigation, Office of Litigation, Office of General
Counsel, Department of Housing and Urban Development, 451 Seventh
Street, SW., Room 10258, Washington, DC 20410-5000; telephone (202)
708-0300 (this is not a toll-free number). Persons with hearing or
speech impairments may access this number via TTY by calling the toll-
free Federal Information Relay Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
HUD's regulations at 24 CFR part 15 describe the policies and
procedures governing public access to HUD records under the Freedom of
Information Act (FOIA) (5 U.S.C. 552) and the policies and procedures
governing the production of material or provision of testimony by HUD
employees. In Sec. 15.2, HUD employees are defined as all current or
former employees who are not employees of the Office of the Inspector
General. Currently, HUD's FOIA regulations governing the production of
documents and provision of testimony by HUD employees are contained in
subparts C and D, respectively. These regulations contain the
procedures to be followed when a demand is served upon the Department
or a HUD employee, and when employees are asked to provide testimony in
legal proceedings.
II. The August 15, 2006, Proposed Rule
On August 15, 2006, HUD published a proposed rule (71 FR 46986) to
revise the regulations contained in subparts C and D of 24 CFR part 15.
The proposed rule intended to revise and amend subparts C and D in
order to clarify the various types of requests for HUD documents and
testimony by HUD employees that are intended to be covered by the
regulations in 24 CFR part 15. The proposed rule also described the
procedures to be followed by a party in making a demand to HUD for
documents or testimony. The proposed rule explained the standards that
are to be followed by HUD in determining whether production or
testimony should be permitted and, if so, any conditions or
restrictions that should be imposed on the disclosure. In addition to
these changes, the proposed rule outlined technical corrections in both
subparts C and D.
This final rule effects these revisions and amendments to subparts
C and D. Further, the organization of 24 CFR part 15 is no longer based
on a distinction between production of material and provision of
testimony, but rather is based on the parties involved in the legal
proceeding. Subpart C governs litigation between private parties, while
subpart D governs litigation where one of the parties is the federal
government. In order to improve clarity and highlight the processes to
be followed, subparts C and D have been revised in their entirety.
For more detailed information regarding the regulatory changes,
please refer to the preamble of the August 15, 2006, proposed rule.
III. This Final Rule; Changes to the August 15, 2006, Proposed Rule
This final rule follows publication of the August 15, 2006,
proposed rule, and takes into consideration the public comment received
on the proposed rule. After careful review of the public comment, HUD
has made the following changes to the proposed rule:
1. Inclusion of any other factors that HUD determines to be
significant when making a demand. This final rule provides that any
demand made to HUD or a HUD employee to produce any material or provide
any testimony in a legal proceeding among private litigants must
include specific information. HUD is making a minor revision to Sec.
15.203, which lists the information that must be included in the
demand, by adding a provision to require the inclusion of other factors
that HUD considers significant. This additional provision does not
change the obligation of parties when making a demand to include all
information that would assist HUD in making a determination regarding
the demand.
2. Imposition of conditions and restrictions on a demand when the
United States is a party to the legal proceeding. HUD is clarifying the
regulations to explicitly state that the Secretary or General Counsel
may impose conditions or restrictions on the production of any material
or provision of any testimony when the United States is a party to the
legal proceeding. The proposed rule set forth the standards to be
considered in making a determination of what material and testimony
would be provided in legal proceedings between private parties. This
final rule now makes these standards applicable to legal proceedings in
which the United States is a party.
IV. Discussion of Public Comments Received on the August 15, 2006,
Proposed Rule
The public comment period on the proposed rule closed on October
16, 2006. In response to the proposed rule, HUD received one public
comment, from the National Leased Housing Association. This section of
the preamble presents a summary of the significant issues raised by the
public commenter on the August 15, 2006, proposed rule, and HUD's
responses to those issues.
Comment: HUD does not have the authority to decline to comply with
a court order to produce material or testimony. One commenter wrote
that proposed revisions to Sec. Sec. 15.202 and 15.206 misstate the
law, are contrary to FOIA, and would create a constitutional problem by
elevating HUD above court authority. The commenter wrote that HUD's
reliance on United States, ex. rel. Touhy v. Ragen is overstated and
that the government cannot simply refuse to produce evidence or provide
testimony. The commenter recommends that the proposed regulation be
replaced with a requirement that information will not be produced
without a properly issued subpoena to the properly designated federal
official and that all information should be produced unless it is
subject to a recognized right or privilege.
[[Page 8581]]
HUD Response: HUD has not revised the rule in response to this
comment. As proposed, when HUD is not a party to the legal proceeding,
an employee is not to produce material or provide testimony unless the
Secretary or General Counsel has granted prior approval. If a court or
other authority declines to stay the demand until a determination is
made by the Secretary or General Counsel, or if a production or
provision of testimony is required by a court or other authority in
spite of a determination not to provide the requested material, at the
direction of legal counsel a HUD employee is to respectfully decline to
comply with the demand. HUD, like any other entity that is served with
a demand, may take all appropriate steps to limit the scope of or
obtain the withdrawal of a demand.
While the regulations governing the production of material and the
provision of testimony are included within the same part as the
regulations implementing FOIA, these demands are not FOIA requests and
are not treated as such. The purpose of FOIA is to provide the public
with access to information regarding federal agencies in recognition of
the importance of participation by an informed citizenry in the
effective functioning of the federal government. Demands for the
production of material or the provision of testimony in the context of
a legal proceeding between private litigants do not affect a greater
understanding of federal agencies for the public and, therefore, are
not afforded the protections contained in FOIA's disclosure requirements.
Further, HUD's reliance on United States, ex. rel. Touhy v. Ragen
(340 U.S. 462 (1951)) (Touhy) is not inappropriate. The court in Touhy
recognized that the information contained in the files of a government
department and the possibilities of harm from unrestricted disclosure
in court necessitates a centralized determination as to whether a
demand will be complied with or challenged. With regard to the issue of
an executive agency treading on the domain of the judicial branch, the
court in Touhy, reiterating a holding from an earlier court case,
stated that it is lawful for a Secretary to reserve for his/her
determination matters of this nature.
Accordingly, because the proposed regulation comports with the law
and is consistent with federal agency practice, HUD has not revised it.
V. Findings and Certifications
Paperwork Reduction Act
The information collection requirements contained in this final
rule are under review by OMB under the Paperwork Reduction Act of 1995
(44 U.S.C. 3501-3520). Approval and the assignment of an OMB control
number is pending. In accordance with the Paperwork Reduction Act, HUD
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless the collection displays a currently
valid OMB control number.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and subject to comment
rulemaking requirements, unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. The regulatory amendments that are made by this final rule
are procedural. Accordingly, the rule would not have any impact on the
substantive rights or duties of small entities requesting HUD records
under the Freedom of Information Act. Furthermore, because the fees
charged under this rule are limited by FOIA to direct costs of
searching for, reviewing, and duplicating the records processed for
requesters, the fees are not economically significant.
Accordingly, the undersigned certifies that this rule will not have
a significant economic impact on a substantial number of small entities.
Environmental Impact
This final rule does not direct, provide for assistance, or loan
and mortgage insurance for, or otherwise govern or regulate, real
property acquisition, disposition, leasing, rehabilitation, alteration,
demolition, or new construction, or establish, revise, or provide for
standards for construction or construction materials, manufactured
housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this
proposed rule is categorically excluded from the requirements of the
National Environmental Policy Act (42 U.S.C. 4321 et seq.).
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This final rule does not have
federalism implications and does not impose substantial direct
compliance costs on state and local governments or preempt state law
within the meaning of the Executive Order.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) (UMRA) establishes requirements for federal agencies to
assess the effects of their regulatory actions on State, local, and
tribal governments, and on the private sector. This final rule does not
impose any federal mandates on any State, local, or tribal government,
or on the private sector, within the meaning of UMRA.
List of Subjects in 24 CFR Part 15
Classified information, Courts, Freedom of information, Government
employees, Reporting and recordkeeping requirements.
? Accordingly, for the reasons discussed in the preamble, HUD amends 24
CFR part 15 to read as follows:
PART 15--PUBLIC ACCESS TO HUD RECORDS UNDER THE FREEDOM OF INFORMATION
ACT AND TESTIMONY AND PRODUCTION OF INFORMATION BY HUD EMPLOYEES
? 1. The authority citation for part 15 continues to read as follows:
Authority: 42 U.S.C. 3535(d).
? 2. Revise Sec. 15.1(b) and (c) to read as follows:
Sec. 15.1 What is the purpose of this part?
* * * * *
(b) Subpart C of this part. Subpart C of this part describes the
procedures to be followed and standards to be applied in processing
demands for the production of material or provision of testimony in
legal proceedings among private litigants.
(c) Subpart D of this part. Subpart D of this part describes the
procedures to be followed and standards to be applied in processing
demands for the production of material or provision of testimony in
legal proceedings in which the United States is a party.
* * * * *
? 3. In Sec. 15.2(b) add, in alphabetical order, definitions of the
terms ``Demand,'' ``Good cause,'' ``Material,'' ``Production,''
``Testimony,'' and ``United States'' to read as follows:
Sec. 15.2 Definitions.
* * * * *
Demand means a subpoena, order, or other demand of a court or other
authority that is issued in a legal
[[Page 8582]]
proceeding and any accompanying submissions.
* * * * *
Good cause means necessary to prevent a miscarriage of justice or
to promote a significant interest of the Department.
* * * * *
Material means either documents or information contained in, or
relating to contents of, the files of the Department or documents or
information acquired by any person while such person was an employee of
the Department as a part of the performance of his or her official
duties or because of his or her official status.
* * * * *
Production refers to the provision of material by any means other
than through the provision of oral testimony.
* * * * *
Testimony refers to any oral or written statements made in
litigation under oath or penalty of perjury.
* * * * *
United States refers to the Federal Government of the United States
(including the Department), the Secretary, and any employees of the
Department in their official capacities.
? 4. Revise subpart C to read as follows:
Subpart C--Production of Material or Provision of Testimony in Response
to Demands in Legal Proceedings Among Private Litigants
Sec.
15.201 Purpose and scope.
15.202 Production of material or provision of testimony prohibited
unless approved by the Secretary or General Counsel.
15.203 Making a demand for production of material or provision of
testimony.
15.204 Consideration of demands for production of material or
provision of testimony.
15.205 Method of production of material or provision of testimony.
15.206 Procedure in the event of an adverse ruling regarding
production of material or provision of testimony.
Subpart C--Production of Material or Provision of Testimony in
Response to Demands in Legal Proceedings Among Private Litigants
Sec. 15.201 Purpose and scope.
(a) This subpart contains the regulations of the Department
concerning the procedures to be followed and standards to be applied
when demand is issued in a legal proceeding among private litigants for
the production or disclosure of any material, whether provided through
production of material or provision of testimony.
(b) This subpart does not apply to demands, which are covered by
part 2004 of this title, for production of material in the files of the
Office of Inspector General or provision of testimony by employees
within the Office of Inspector General.
Sec. 15.202 Production of material or provision of testimony
prohibited unless approved by the Secretary or General Counsel.
Neither the Department nor any employee of the Department shall
comply with any demand for production of material or provision of
testimony in a legal proceeding among private litigants, unless the
prior approval of the Secretary or General Counsel has been obtained in
accordance with this subpart. This rule does not apply to any legal
proceeding in which an employee may be called to participate, either
through the production of documents or the provision of testimony, not
on official time, as to facts or opinions that are in no way related to
material described in Sec. 15.201.
Sec. 15.203 Making a demand for production of material or provision
of testimony.
(a) Any demand made to the Department or an employee of the
Department to produce any material or provide any testimony in a legal
proceeding among private litigants must:
(1) Be submitted in writing to the Department or employee of the
Department, with a copy to the Associate General Counsel for
Litigation, no later than 30 days before the date the material or
testimony is required;
(2) State, with particularity, the material or testimony sought;
(3) State whether expert or opinion testimony will be sought from
the employee;
(4) State whether the production of such material or provision of
such testimony could reveal classified, confidential, or privileged
material;
(5) Summarize the need for and relevance of the material or
testimony sought in the legal proceeding;
(6) State whether the material or testimony is available from any
other source and, if so, state all such other sources;
(7) State why no document[s], or declaration or affidavit, could be
used in lieu of oral testimony that is being sought;
(8) Estimate the amount of time the employee will need in order to
prepare for, travel to, and attend the legal proceeding, as appropriate;
(9) State why the production of the material or provision of the
testimony is appropriate under the rules of procedure governing the
legal proceeding for which it is sought (e.g., not unduly burdensome or
otherwise inappropriate under the relevant rules governing discovery);
(10) Describe how producing such material or providing such
testimony would affect the interests of the United States; and
(11) Include any other factors that the agency determines to be
significant.
(b) Whenever a demand is made upon the Department or an employee of
the Department for the production of material or provision of
testimony, the Associate General Counsel for Litigation or designee
shall be notified immediately. The Associate General Counsel for
Litigation or designee shall maintain a record of all demands served
upon the Department and refer the demand to the appropriate designee
for processing and determination.
Sec. 15.204 Consideration of demands for production of material or
provision of testimony.
(a) The Secretary or General Counsel shall determine what material
is to be produced or what testimony is to be provided, based upon the
following standards:
(1) Expert or opinion material or testimony. In any legal
proceeding among private litigants, no employee of the Department may
produce material or provide testimony as described in Sec. 15.201 that
is of an expert or opinion nature, unless specifically authorized by
the Secretary or the General Counsel for good cause shown.
(2) Factual material or testimony. In any legal proceeding among
private litigants, no employee of the Department may produce material
or provide testimony as described in Sec. 15.201 unless specifically
authorized by the Secretary or General Counsel. Such authorization may
be granted if the Secretary or General Counsel determines that it is
warranted based upon an assessment of whether:
(i) Producing such material or providing such testimony would
violate a statute or regulation;
(ii) Producing such material or providing such testimony would
reveal classified, confidential, or privileged material;
(iii) Such material or testimony is relevant to the legal proceeding;
(iv) Such material or testimony can be obtained from any other
source;
(v) One or more documents, or a declaration or affidavit, could
reasonably be provided in lieu of oral testimony;
[[Page 8583]]
(vi) The amount of employees' time necessary to comply with the
demand is reasonable;
(vii) Production of the material or provision of the testimony is
appropriate under the rules of procedure governing the legal proceeding
for which it is sought (e.g., unduly burdensome or otherwise
inappropriate under the relevant rules governing discovery); and
(viii) Producing such material or providing such testimony would
impede a significant interest of the United States.
(b) Once a determination has been made, the requester will be
notified of the determination, the reasons for the grant or denial of
the demand, and any conditions that have been imposed upon the
production of the material or provision of the testimony demanded.
(c) The Secretary or General Counsel may impose conditions or
restrictions on the production of any material or provision of any
testimony. Such conditions or restrictions may include the following:
(1) A requirement that the parties to the legal proceeding obtain a
protective order or execute a confidentiality agreement, the terms of
which must be acceptable to the Secretary or General Counsel, to limit
access to, and limit any further disclosure of, material or testimony;
(2) A requirement that the requester accept examination of
documentary material on HUD premises in lieu of production of copies;
(3) A limitation on the subject areas of testimony permitted;
(4) A requirement that testimony of a HUD employee be provided by
deposition at a location prescribed by HUD or by written declaration or
affidavit;
(5) A requirement that the parties to the legal proceeding agree
that a transcript of the permitted testimony be kept under seal or will
only be used or made available in the particular legal proceeding for
which testimony was demanded;
(6) A requirement that the requester provide the Department with a
copy of a transcript of the employee's testimony free of charge; or
(7) Any other condition or restriction deemed to be in the best
interests of the United States.
(d) The determination made with respect to the production of
material or provision of testimony is within the sole discretion of the
Secretary or General Counsel and shall constitute final agency action
from which no administrative appeal is available.
Sec. 15.205 Method of production of material or provision of testimony.
(a) Where the Secretary or General Counsel has authorized the
production of material or provision of testimony, the Department shall
produce such material or provide such testimony in accordance with this
section and any conditions imposed upon production of material or
provision of testimony pursuant to Sec. 15.204.
(b) In any legal proceeding where the Secretary or General Counsel
has authorized the production of documents, the Department shall
respond by producing authenticated copies of the documents, to which
the seal of the Department has been affixed, in accordance with its
authentication procedures. That authentication shall be evidence that
the documents are true copies of documents in the Department's files
and be sufficient for the purposes of Rule 902 of the Federal Rules of
Evidence.
(c) If response to the demand is required before the determination
from the Secretary or General Counsel is received, the U.S. Attorney,
or such other attorney as may be designated for the purpose, will
appear or make such filings as are necessary to furnish the court or
other authority with a copy of the regulations contained in this
subpart and inform the court or other authority that the demand has
been, or is being, as the case may be, referred for prompt
consideration. The court or other authority shall be requested
respectfully to stay the demand pending receipt of the requested
determination from the Secretary or General Counsel.
Sec. 15.206 Procedure in the event of an adverse ruling regarding
production of material or provision of testimony.
If the court or other authority declines to stay the demand made in
accordance with Sec. 15.205 pending receipt of the determination from
the Secretary or General Counsel, or if the court or other authority
rules that the demand must be complied with irrespective of the
determination by the Secretary or General Counsel not to produce the
material or provide the testimony demanded or to produce subject to
conditions or restrictions, the employee upon whom the demand has been
made shall, if so directed by an attorney representing the Department,
respectfully decline to comply with the demand. (United States ex rel.
Touhy v. Ragen, 340 U.S. 462 (1951)).
? 5. Revise subpart D to read as follows:
Subpart D--Production of Material or Provision of Testimony in Response
to Demands in Legal Proceedings in Which the United States Is a Party
Sec.
15.301 Purpose and scope.
15.302 Procedure for review of demands for production of material or
provision of testimony in any legal proceeding in which the United
States is a party.
15.303 Consideration of demands for production of material or
provision of testimony.
15.304 Method of production of material or provision of testimony.
Subpart D--Production of Material or Provision of Testimony in Response
to Demands in Legal Proceedings in Which the United States Is a Party
Sec. 15.301 Purpose and scope.
(a) This subpart contains the regulations of the Department
concerning the procedures to be followed and standards to be applied
when demand is issued in a legal proceeding in which the United States
is a party for the production or disclosure of any material, whether
provided through production of material or provision of testimony.
(b) This subpart does not apply to demands, which are covered by
part 2004 of this title, for production of material in the files of the
Office of Inspector General or provision of testimony by employees
within the Office of Inspector General.
Sec. 15.302 Procedure for review of demands for production of
material or provision of testimony in any legal proceeding in which the
United States is a party.
All demands for production of material or provision of testimony in
any legal proceeding in which the United States is a party shall be
directed to the agency through the attorney representing the United
States in the proceeding. Whenever the Department or an employee of the
Department is notified by the attorney representing the United States
of the demand for the production of material or provision of testimony
in any legal proceeding in which the United States is a party, the
Associate General Counsel for Litigation or designee shall be notified
immediately.
Sec. 15.303 Consideration of demands for production of material or
provision of testimony.
(a) The Secretary or General Counsel shall consult with the
attorney representing the United States as to the response to the
demand for production of material or to the provision of testimony.
[[Page 8584]]
(b) An employee of the Department may not testify as an expert or
opinion witness unless specifically authorized by the Secretary or the
General Counsel for good cause shown.
(c) The Secretary or General Counsel may impose conditions or
restrictions on the production of any material or provision of any
testimony, as set forth in section 15.204(c).
Sec. 15.304 Method of production of material or provision of testimony.
Where the Secretary or General Counsel has authorized the
production of material or provision of testimony, the Associate General
Counsel for Litigation or designee shall arrange for the production of
any authorized material or provision of any authorized testimony
through the attorney representing the United States. Where the
Secretary or General Counsel has authorized the production of
documents, the Department may respond by producing authenticated copies
of the documents, to which the seal of the Department has been affixed
in accordance with its authentication procedures. That authentication
shall be evidence that the documents are true copies of documents in
the Department's files and be sufficient for the purposes of Rule 902
of the Federal Rules of Evidence.
Dated: February 16, 2007.
Roy A. Bernardi,
Deputy Secretary.
[FR Doc. E7-3140 Filed 2-23-07; 8:45 am]
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