Once a demand has been referred for higher level review,
the Assistant Attorney General in charge of the division may then
take the same actions as can be taken in cases in which the United
States is not a party, i.e.:
Authorize disclosure based on the factors in 28 C.F.R. 16.26;
Authorize the attorney in charge of the case to file a motion
to quash the demand if that has not already been done; or
Upon denial of a motion to quash, or where such motion is
inappropriate, refer the matter to the Deputy Attorney General or
Associate Attorney General for final resolution. 28 C.F.R.
16.24(e).
Once a case or matter is referred for higher level review,
a problem can arise if the demanded disclosure involves information
originally collected, assembled, or prepared in connection with
litigation or an investigation supervised by a unit of the
Department other than the one which supervises the case or matter
in litigation, and to which the matter has been referred. The
division receiving the referral must notify the other division
concerning the demand and the anticipated response. If the 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 may refer the matter
to either the Deputy Attorney General or the Associate Attorney
General for decision, depending upon who supervises the originating
component or, in the case of an independent agency that, for
administrative purposes, is within the Department, to the Deputy
Attorney General. 28 C.F.R. 16.24(e
). For an illustrative example, see the DOJ Organizations and Functions Manual at
24.
See USAM 1-6.400 for a
full discussion. Note here that denials may be authorized only
by the Deputy Attorney General or the Associate Attorney General
depending upon which official supervises the component referring
the demand.
The regulations neither create new privileges nor
supersede discovery obligations that exist under the Federal Rules
of Civil Procedure. 28 C.F.R. 16.21(d). They merely serve as a
procedural vehicle to allow the Department the opportunity to
protect information from unwarranted and unconsidered disclosure.
It is only in infrequent situations, after all possible
alternatives have been exhausted, that the Deputy Attorney General
or Associate Attorney General should be requested to issue a
denial. Therefore, pursuant to 28 C.F.R. 16.24(d)(1), it is
Departmental policy that all steps must be taken to limit the
demand prior to referring the matter to the Deputy Attorney General
for his/her decision. These steps include, most importantly, the
filing of a motion to quash the demand. In addition, negotiations
should also be undertaken with the person making the demand to
limit its scope. See 28 C.F.R. 16.24(d)(1)(ii). Because
each request for denial requires the personal re
view of the Deputy Attorney General or the Associate Attorney
General, it is necessary to limit the number of such requests to
those that are truly necessary; therefore, no memorandum requesting
a denial should be submitted prior to the filing and denial of a
motion to quash unless the filing of such motion is clearly
inappropriate under the circumstances. 28 C.F.R. 16.24(d)(1)(iii).
Because the denial of a demand made by a court is an
extraordinary act, denial authority is strictly limited, and no
Department official below the level of the Deputy Attorney General
or the Associate Attorney General may issue a denial under the
regulations in any situation. 28 C.F.R. 16.25. Since there are
cases in which the Attorney General may be personally involved, the
regulations make it clear that his/her decision to authorize or
deny disclosure in such cases is final. 28 C.F.R. 16.24(g).
Subsection (a) of Section 16.26 identifies generally the
areas of law that Department officials and attorneys should
consider in deciding whether to make disclosures. Because the
factors relevant to a particular demand vary widely with the nature
of the demand, and to avoid any suggestion that, through this
procedural regulation, the Department might be seeking to impose
legal standards different from the ordinary rules of procedure and
the substantive law concerning privilege, the regulation adopts a
highly general approach in subsection (a), instead of attempting a
detailed list of considerations.
The factors to be considered in whether to make a
disclosure are twofold, and as noted, general in nature. First,
the official making the decision is to consider whether the
disclosure in question is appropriate under the rules of procedure
governing the case or matter in which the demand arose. Second,
he/she is to consider whether disclosure is appropriate under the
relevant substantive law concerning privilege. These general
factors are, of course, the same factors to be considered in filing
the appropriate motions to quash. A failure on either ground-rules
of procedure or substantive law of privilege-is one predicate for
initiating the process leading to denial. At the initial stages,
release cannot be authorized unless the official making the
determination is assured, inter alia, that the demanded disclosure
is appropriate under these general Section 16.26(a) factors.
See 28 C.F.R. 16.24(b)(3).
Subsection (b) of Section 16.26 contains a number of very
specific factors that set forth areas where disclosure should not
be made. For a discussion of these factors, see the DOJ Organizations and Functions Manual at
25.
The authority of the Deputy Attorney General or the
Associate Attorney General to order disclosure despite the presence
of one or more of these factors is delineated in Section 16.26(b).
If any of the factors set forth in paragraphs 1 to 3 (violation of
law, violation of specific regulation or disclosure of classified
information) is present, the regulations state that neither
official will authorize a disclosure. If any of the factors set
forth in paragraphs 4 to 6 are present, the regulations state that
disclosure will not be authorized unless either official determines
that the administration of justice requires disclosure. Remember
that under the regulations only these officials can order a denial.
Of course, as head of the Department, the Attorney General also
possesses the power to order a denial.
If a disclosure is to be ordered, despite the presence of
a factor set forth in paragraphs 4-6, as being in the interest of
the administration of justice because disclosure is deemed
necessary to pursue a civil or criminal prosecution or affirmative
relief, such as an injunction, the regulations direct that
consideration be given to: (a) the seriousness of the violation or
crime involved; (b) the past history or criminal record of the
violator or accused; (c) the importance of the relief sought; (d)
the importance of the legal issues presented; and (e) any other
matters brought to the attention of the Deputy Attorney General or
the Associate Attorney General.
Finally, in all cases that are referred to the Deputy
Attorney General or the Associate Attorney General in which none of
the factors set forth in paragraphs 1 to 6 are present, those
officials are to authorize disclosure, unless, in their judgment,
after considering the factors set forth in Section 16.26(a),
disclosure is unwarranted. See 28 C.F.R. 16.26(c).
It is the lack of authorization, rather than the issuance
of a denial, that often precludes compliance with a demand at the
proceeding. The subpoenaed official who has not received
authorization by the date of the appearance must respectfully
inform the court that he/she cannot comply. It is essential in
cases in which the United States is not a party that the local
United States Attorney provide representation. In cases in which
the United States is a party, such representation by the attorney
in charge of the case or matter is presumed.
28 C.F.R. 16.27 contains instructions on the procedures to
be followed in this situation. The subpoenaed employee should
provide the court with a copy of the applicable regulations and
state that the demand has been referred for the prompt
consideration of the appropriate Department official. In rare
cases these measures may not satisfy the court; the United States
Attorney should then cite United States ex rel. Touhy v.
Ragan, 340 U.S. 462 (1951) in which the Supreme Court held that
an employee may not be held in contempt for failing to produce the
demanded information where appropriate authorization had not been
given. 28 C.F.R. 16.27, .28.
In those cases in which either the Deputy Attorney General
or the Associate Attorney General has issued a denial, the
Department employee to whom the demand has been made should appear
at the proceeding and respectfully decline to comply with the
demand, citing the regulations and providing the court with a copy
of the written denial determination if time has permitted one to be
obtained. Here, too, it is essential that the United States
Attorney in cases in which the United States is not a party provide
representation for the Department employee. In cases in which the
United States is a party, such representation by the Department
attorney in charge of the case or matter is presumed. As with the
preceding section, it may be necessary to cite the case of
United States ex rel. Touhy v. Ragan, id. 28 C.F.R.
16.28.
As noted, it is essential that a United States Attorney or
other Department attorney appear in court with the witness. In the
event that the court orders the witness incarcerated for contempt,
the Assistant United States Attorney should immediately petition
for a writ of habeas corpus (28 U.S.C. 2254 if in state custody or
28 U.S.C. 2255 if in federal custody). If the employee is in state
custody, an alternative to habeas corpus is removal of the matter
to federal court pursuant to 28 U.S.C. 1442. It is expected that
contempt citations will be extremely rare. Action by the United
States Attorney or other Department attorney in such cases is
expected to be quick and vigorous.
The Drug Enforcement Administration receives unique
treatment with respect to authorizing testimony under 28 C.F.R.
0.103(a), a section of the regulations unaffected by the 1980
amendment to 28 C.F.R. 16.21 et seq. Under Section 0.103(a), the
Administrator of DEA may authorize the testimony of DEA officials
in response to subpoenas issued by the prosecution in federal,
state, or local criminal cases involving controlled substances. 28
C.F.R. 0.103(a)(3). In addition, the Administrator may release
information obtained by DEA and DEA investigative reports to
federal, state, and local prosecutors and to state licensing boards
engaged in the institution and prosecution of cases before courts
and licensing boards related to controlled substances. 28 C.F.R.
0.103(a)(2). Note that this section only authorizes release to the
government side of the covered cases. Any other production of
information or testimony by DEA officials is covered by 28 C.F.R.
16.21 et seq. For illustrative
examples, see the DOJ
Organizations and Functions Manual at 26.
A Department of Justice employee who is summoned to appear
and testify, or who is assigned to present testimony or to identify
official documents in connection with a judicial or agency
proceeding, is entitled to travel expenses if authorized by the
Department of Justice to appear. Expenses are paid in accordance
with normal government travel provisions, 5 U.S.C. Secs. 5701 to
5708, unless reimbursed by the court or by the party summoning the
witness. See 5 U.S.C. Sec. 5751. The appropriate amount
chargeable for travel expenses is detailed in 28 C.F.R. Sec. 21.1.
A Department of Justice employee is entitled to official
leave, not chargeable to annual leave, when appearing in his/her
official capacity on behalf of the United States or when he/she has
been summoned to appear on behalf of another party. See 5
U.S.C. 6322. However, no provision is made for official leave for
an employee who appears voluntarily as a witness for a private
party.
When an employee appears on behalf of the United States,
he/she is not entitled to a witness fee. 5 U.S.C. Sec. 5537. If
the witness appears in an official capacity for a party other than
the United States, any witness fee received is deducted from
his/her pay. See 5 U.S.C. Sec. 5515.
| September 1997
| USAM Chapter 1-6
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