Testimony or the production of records in a court or other
(a) Applicability.(1) This section sets forth the policies and
procedures of the Department regarding the testimony of employees and former
employees as witnesses in legal proceedings and the production or disclosure of
information contained in Department documents for use in legal proceedings pursuant
to a request, order, or subpoena (collectively referred to in this subpart as a
(2) This section does not apply to any legal proceeding in which an employee is to
testify while on leave status regarding facts or events that are unrelated to the
official business of the Department.
(3) (i) Nothing in this section affects the rights and procedures governing public
access to records pursuant to the Freedom of Information Act (5 U.S.C. 552) or the
Privacy Act (5 U.S.C. 552a ).
(ii) Demands in legal proceedings for the production of records, or for the
testimony of Department employees regarding information protected by the Privacy Act
(5 U.S.C. 552a ), the Trade Secrets Act (18 U.S.C. 1905) or other confidentiality
statutes, must satisfy the requirements for disclosure set forth in those statutes
and the applicable regulations of this part before the records may be provided or
(4) This section is intended only to provide guidance for the internal operations
of the Department and to inform the public about Department procedures concerning
the service of process and responses to demands or requests, and the procedures
specified in this section, or the failure of any Treasury employee to follow the
procedures specified in this section, are not intended to, do not, and may not be
relied upon to create a right or benefit, substantive or procedural, enforceable at
law by a party against the United States.
(b) Definitions. For purposes of this section:
(1) Agency counsel means:
(i) With respect to the Departmental Offices, the General Counsel or his or her
(ii) With respect to a bureau or office of the Department, the Chief Counsel or
Legal Counsel (or his or her designee) of such bureau or office.
(2) Demand means a request, order, or subpoena for testimony or
documents related to or for possible use in a legal proceeding.
(3) Department means the United States Department of the
(4) Document means any record or other property, no matter what media
and including copies thereof, held by the Department, including without limitation,
official letters, telegrams, memoranda, reports, studies, calendar and diary
entries, maps, graphs, pamphlets, notes, charts, tabulations, analyses, statistical
or informational accumulations, any kind of summaries of meetings and conversations,
film impressions, magnetic tapes and sound or mechanical reproductions.
(5) Employee means all employees or officers of the Department,
including contractors and any other individuals who have been appointed by, or are
subject to the supervision, jurisdiction or control of the Secretary, as well as the
Secretary of the Treasury. The procedures established within this subpart also apply
to former employees of the Department where specifically noted.
(6) General Counsel means the General Counsel of the Department or
other Department employee to whom the General Counsel has delegated authority to act
under this subpart.
(7) Legal proceeding means all pretrial, trial and post trial stages
of all existing or reasonably anticipated judicial or administrative actions,
hearings, investigations, or similar proceedings before courts, commissions, boards,
grand juries, or other tribunals, foreign or domestic. This phrase includes all
phases of discovery as well as responses to formal or informal requests by attorneys
or others involved in legal proceedings.
(8) Official business means the authorized business of the
(9) Secretary means the Secretary of the Treasury.
(10) Testimony means a statement in any form, including personal
appearances before a court or other legal tribunal, interviews, depositions,
telephonic, televised, or videotaped statements or any responses given during
discovery or similar proceedings, which response would involve more than the
production of documents.
(c) Department policy. No current or former employee shall, in
response to a demand, produce any Department documents, provide testimony regarding
any information relating to or based upon Department documents, or disclose any
information or produce materials acquired as part of the performance of that
employee's official duties or official status, without the prior authorization of
the General Counsel or the appropriate agency counsel.
(d) Procedures for demand for testimony or production of documents.(1) A demand directed to the Department for the testimony of a Department employee
or for the production of documents shall be served in accordance with the Federal
Rules of Civil Procedure, Federal Rules of Criminal Procedure, or applicable state
procedures and shall be directed to the General Counsel, Department of the Treasury,
1500 Pennsylvania Avenue, NW., Washington, DC 20220, or to the Chief or Legal
Counsel of the concerned Department component. Acceptance of a demand shall not
constitute an admission or waiver with respect to jurisdiction, propriety of
service, improper venue, or any other defense in law or equity available under the
applicable laws or rules.
(2) A subpoena or other demand for testimony directed to an employee or former
employee shall be served in accordance with the Federal Rules of Civil or Criminal
Procedure or applicable State procedure and a copy of the subpoena shall be sent to
(3) (i) In court cases in which the United States or the Department is not a party,
where the giving of testimony or the production of documents by the Department, or a
current or former employee is desired, an affidavit (or if that is not feasible, a
statement) by the litigant or the litigant's attorney, setting forth the information
with respect to which the testimony or production is desired, must be submitted
in order to obtain a decision concerning whether such testimony
or production will be authorized. Such information shall include: the title of the
legal proceeding, the forum, the requesting party's interest in the legal
proceeding, the reason for the demand, a showing that other evidence reasonably
suited to the requester's needs is not available from any other source and, if
testimony is requested, the intended use of the testimony, a general summary of the
desired testimony, and a showing that no document could be provided and used in lieu
of testimony. The purpose of this requirement is to assist agency counsel in making
an informed decision regarding whether testimony or the production of document
should be authorized. Permission to testify or produce documents will, in all cases,
be limited to the information set forth in the affidavit or statement, or to such
portions thereof as may be deemed proper.
(ii) Agency counsel may consult or negotiate with an attorney for a party, or the
party if not represented by an attorney, to refine or limit a demand so that
compliance is less burdensome or obtain information necessary to make the
determination required by paragraph (e) of this section. Failure of the attorney or
party to cooperate in good faith to enable agency counsel to make an informed
determination under this subpart may serve, where appropriate, as a basis for a
determination not to comply with the demand.
(iii) A determination under this subpart to comply or not to comply with a demand
is without prejudice as to any formal assertion or waiver of privilege, lack of
relevance, technical deficiency or any other ground for noncompliance.
(4) (i) Employees shall immediately refer all inquiries and demands made on the
Department to agency counsel.
(ii) An employee who receives a subpoena shall immediately forward the subpoena to
agency counsel. Agency counsel will determine the manner in which to respond to the
(e) Factors to be considered by agency counsel.(1) In deciding
whether to authorize the release of official information or the testimony of
personnel concerning official information (hereafter referred to as “the
disclosure”) agency counsel shall consider the following factors:
(i) Whether the request or demand is unduly burdensome;
(ii) Whether the request would involve the Department in controversial issues
unrelated to the Department's mission;
(iii) Whether the time and money of the United States would be used for private
(iv) The extent to which the time of employees for conducting official business
would be compromised;
(v) Whether the public might misconstrue variances between personal opinions of
employees and Department policy;
(vi) Whether the request demonstrates that the information requested is relevant
and material to the action pending, genuinely necessary to the proceeding,
unavailable from other sources, and reasonable in its scope;
(vii) Whether the number of similar requests would have a cumulative effect on the
expenditure of agency resources;
(viii) Whether disclosure otherwise would be inappropriate under the circumstances;
(ix) Any other factor that is appropriate.
(2) Among those demands and requests in response to which compliance will not
ordinarily be authorized are those with respect to which any of the following
(i) The disclosure would violate a statute, Executive order, or regulation;
(ii) The integrity of the administrative and deliberative processes of the
Department would be compromised;
(iii) The disclosure would not be appropriate under the rules of procedure
governing the case or matter in which the demand arose;
(iv) The disclosure, including release in camera, is not appropriate or necessary
under the relevant substantive law concerning privilege;
(v) The disclosure, except when in camera and necessary to assert a claim of
privilege, would reveal information properly classified or other matters exempt from
unrestricted disclosure; or
(vi) The disclosure would interfere with ongoing enforcement proceedings, compromise constitutional rights, reveal the identity of an intelligence
source or confidential informant, or disclose trade secrets or similarly
confidential commercial or financial information.
(f) Requests for opinion or expert testimony.(1) Subject to 5 CFR
2635.805, an employee or former employee shall not provide, with or without
compensation, opinion or expert testimony concerning official information, subjects,
or activities, except on behalf of the United States or a party represented by the
Department of Justice, without written approval of agency counsel.
(2) Upon a showing by the requestor of exceptional need or unique circumstances and
that the anticipated testimony will not be adverse to the interests of the
Department or the United States, agency counsel may, in writing, grant authorization
for an employee, or former employee, to appear and testify at no expense to the
(3) Any expert or opinion testimony by a former employee of the Department shall be
excepted from § 1.11(f)(1) where the testimony involves only general expertise
gained while employed at the Department.
(g) Procedures when agency counsel directs an employee not to testify or
provide documents. (1) If agency counsel determines that an employee or former
employee should not comply with a subpoena or other request for testimony or the
production of documents, agency counsel will so inform the employee and the party
who submitted the subpoena or made the request.
(2) If, despite the determination of the agency counsel that testimony should not
be given and/or documents not be produced, a court of competent jurisdiction or
other appropriate authority orders the employee or former employee to testify and/or
produce documents, the employee shall notify agency counsel of such order.
(i) If agency counsel determines that no further legal review of, or challenge to,
the order will be sought, the employee or former employee shall comply with the
(ii) If agency counsel determines to challenge the order, or that further legal
review is necessary, the employee or former employee should not comply with the
order. Where necessary, the employee should appear at the time and place set forth
in the subpoena. If legal counsel cannot appear on behalf of the employee, the
employee should produce a copy of this subpart and respectfully inform the legal
tribunal that he/she has been advised by counsel not to provide the requested
testimony and/or produce documents. If the legal tribunal rules that the subpoena
must be complied with, the employee shall respectfully decline to comply, citing
this section and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
[69 FR 54003, Sept. 7, 2004]
Title 31 published on 2012-07-01
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For a complete list of all Rules, Proposed Rules, and Notices view the Rulemaking tab.
This is a list of United States Code sections, Statutes at Large, Public Laws, and Presidential Documents, which provide rulemaking authority for this CFR Part.