Touhy or Not Touhy

The Game of Subpoenaing Depositions and Documents from the Department of Justice    

The Touhy regulations, named after the landmark Supreme Court case United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), are a set of federal guidelines governing the production of documents and testimony by government employees, who are not party to the case, in legal proceedings. These regulations play a crucial role in maintaining the integrity and confidentiality of government information while ensuring that the judicial process is not unduly hampered.

However, seeking and subpoenaing this information or testimony can be a difficult procedure for practitioners. There are differing processes for cases when the United States is a party and when the United States is not a party. Each agency has promulgated their own version of Touhy regulations to restrict the use of testimonies and agency documents. There are multiple steps and stages which need to be followed meticulously.

Origins of Touhy Regulations

The Touhy regulations stem from the 1951 Supreme Court case United States ex rel. Touhy v. Ragen. In this case, a federal prisoner, Roger Touhy, subpoenaed George R. McSwain, the agent in charge of the FBI office in Chicago, Illinois. Touhy requested certain documentation that he asserted proved that his conviction was brought about by fraud. McSwain refused to comply, citing internal regulations that prohibited the release of such information without proper authorization. The Supreme Court upheld the FBI’s refusal, affirming the validity of agency regulations that restrict the disclosure of information and the testimony of government employees.

The ruling established the principle that federal agencies could enact their own regulations to control the dissemination of information and testimony in legal proceedings. This led to the development of what are now known as Touhy regulations, which are codified in various forms across the Code of Federal Regulations.

Purpose of Touhy Regulations

The primary purpose of Touhy regulations is to protect the interests of the federal government and ensure that its operations are not unduly disrupted by legal proceedings. These regulations serve several key functions:

1. Protecting Confidential Information: Many government agencies handle sensitive information that, if disclosed, could compromise national security, ongoing investigations, or individual privacy. Touhy regulations provide a mechanism for agencies to assess and control the release of such information.
2. Maintaining Efficiency: Allowing unrestricted access to government employees and documents in legal proceedings could overwhelm agencies with requests, diverting resources from their primary functions. Touhy regulations help manage these requests and ensure that agencies can continue to operate effectively.
3. Ensuring Consistency: By establishing clear guidelines for the release of information and testimony, Touhy regulations promote consistency in how agencies respond to legal requests. This helps prevent arbitrary or inconsistent decisions that could undermine the credibility of the government.

Implications and Challenges

The operation of Touhy regulations has significant implications for both government agencies and parties involved in legal proceedings. For government agencies, these regulations provide a critical tool for managing the flow of information and protecting sensitive data. However, they also require careful administration to ensure that legitimate requests for information are not unduly denied.

For parties involved in legal proceedings, Touhy regulations can pose challenges in obtaining necessary information from government sources. Legal practitioners must navigate the complex requirements of these regulations and may need to demonstrate the relevance and necessity of the requested information to overcome potential objections.

Key Provisions of Touhy Regulations

Practitioners should note and follow the requested agency’s Touhy regulations. While the specific provisions of Touhy regulations vary by agency, they generally include several common elements:

1. Request Procedures: Touhy regulations typically outline the procedures that must be followed when requesting documents or testimony from a government agency. This often includes submitting a formal request in writing, specifying the nature of the information sought, and explaining the relevance of the information to the legal proceeding.
2. Authorization Requirements: Many agencies require that requests for information or testimony be approved by a designated official, such as the agency head or a senior legal advisor. This ensures that requests are carefully reviewed and authorized at a high level.
3. Criteria for Release: Agencies often have specific criteria that must be met before information or testimony can be released. These criteria may include considerations such as the potential impact on national security, the confidentiality of the information, and the potential burden on the agency.
4. Limits on Testimony: In some cases, Touhy regulations restrict the scope of testimony that government employees can provide. For example, employees may be prohibited from testifying about their personal opinions or interpretations of policy, focusing instead on factual information.

Procedural Components for the Department of Justice as an Example

4. Subpoena: Defendants may serve a subpoena upon a former Assistant U.S. Attorney for oral testimony in their official capacity. Once subpoenaed, the A.U.S.A. must then timely notify the office of the United States Attorney for the district in which the “issuing authority” is located. 28 C.F.R. § 16.22(b).
5. Affidavit: Defendant then must provide the U.S. Attorney an affidavit laying out the demand and the underlying facts showing why the testimonies are relevant to the case at hand. If there was a prior authorization given then the scope of the deposition testimony will be limited to the scope laid out in the supporting affidavit. 28 C.F.R. 16.22 (c).
6. Authorization: If the U.S. Attorney determines that the demand is appropriate under both the rules of procedure and the law of privilege – and the oral testimony would not include any preclusive factors – they are empowered to authorize the oral testimony without any further approval from the Department of Justice. If the U.S. Attorney finds that the demand or subpoena is not proper due to procedural or evidentiary grounds, then they may limit the scope of the testimony under 28 C.F.R. § 16.24(c).
7. Denial: The U.S. Attorney may simply decline authorization, object to the demand, or move for a protective order to quash. See United States v. Soriano-Jarquin, 492 F.3d 495, 504 (4th Cir. 2007). A demand may be denied on the grounds that it is inappropriate under the rules of procedure or if it violates substantive privilege laws. 28 C.F.R. § 16.26(a). If none of these issues arise, the U.S. Attorney General will evaluate other factors proscribed by their Touhy
   16. Grounds for Denial 28 C.F.R. § 16.26(b)
       1. Disclosure would violate a statute, such as the income tax laws, 26 U.S.C. 6103 and 7213, or a rule of procedure, such as the grand jury secrecy rule, Federal Rule of Criminal Procedure 6(e).
       2. Whether the disclosure would violate specific regulation or would reveal classified information, unless appropriately declassified by the originating agency.

• Disclosure would reveal investigatory records compiled for law enforcement purposes, and would interfere with enforcement proceedings or disclose investigate techniques and procedures, the effectiveness of which would thereby be impaired; and

1. Disclosure would improperly reveal trade secrets without the owner’s consent.

Once denial has been properly laid, the DOJ employee who the demand or subpoena was made upon shall, through their assigned attorney, decline to follow the demand and cite to the regulation and Touhy while also submitting a letter detailing the denial.

Conclusion

The Touhy regulations lay out the procedures for subpoenaing a federal agency. Federal agencies have an interest in ensuring that confidential and secured documentation or information is not disseminated. At the same time, litigants with an interest in information held by federal agencies should be able to access it where necessary and appropriate.  The purpose of the regulations is also to balance the needs of litigants with agencies’ interests in privacy.

These regulations vary from agency to agency and thus should first be reviewed prior to submitting a subpoena. However, generally, agencies will respond to a subpoena by requesting an affidavit detailing the necessity of the requested information. If it deems it appropriate to release it may release the information in full, but more realistically will tailor the information to fit the narrow request of the subpoena. Because a myriad of federal agencies exist, practitioners should be well versed in the requested agency’s Touhy regulations so that either authorization or denial is given expeditiously and properly.

The authors of this blog post are Lydecker attorneys, Michael Poreda Esq., Of Counsel, in the Jersey City office of Lydecker and Young Kim, Esq is an Associate in the Jersey City office of Lydecker.