Release of Unpublished Information

SUMMARY: The Office of Thrift Supervision (OTS) is issuing its final

regulation pertaining to the release of unpublished OTS information.

The rule is based upon the OTS's experience and practices developed

during the last five years in responding to the large volume of

requests by the public for unpublished OTS information.

The final rule describes the procedures that requesters must follow

in requesting the release of unpublished information by document or

testimony and the criteria on which the OTS will evaluate requests for

unpublished information. The records covered include those created or

obtained in connection with the OTS's performance of its statutory

responsibilities, such as supervision, regulation, examination, and law

enforcement duties.

EFFECTIVE DATE: July 1, 1995.

FOR FURTHER INFORMATION CONTACT: Valerie J. Lithotomos, Counsel

(Banking and Finance), (202) 906-6439, Regulations and Legislation

Division; Donna Miller, Program Manager, (202) 906-7488, Affiliates

Programs; Francis Raue, Program Analyst, (202) 906-5750, Thrift Policy;

Office of Thrift Supervision, 1700 G Street NW., Washington, DC 20552.

SUPPLEMENTARY INFORMATION:

I. Background

The OTS is today issuing a final rule amending its current rule

concerning the release of unpublished information.1 The final rule

includes requests for release of records that are exempt from

disclosure under the Freedom of Information Act (FOIA), such as

examination and related reports, information relating to the business

operations and finances of individual savings associations, savings and

loan holding companies, other affiliates, and their customers, and

information compiled in connection with the OTS's enforcement

investigations. It also includes requests for testimony. The testimony

covered in the final rule includes requests for current and former OTS

employees, officers, and agents (and for former employees, officers and

agents of the OTS's predecessor, the Federal Home Loan Bank Board) to

testify in judicial and administrative proceedings, including

depositions and informal interviews, about information obtained in

their official OTS capacities.

\1\ The OTS's authority to govern the custody and use of its

records and the testimony of its personnel derives from 12 U.S.C.

1462a, 1463(a) 1464 and 5 U.S.C. 301. In particular, section

1462a(b)(2) authorizes the Director of the OTS to prescribe such

regulations as he may determine to be necessary for carrying out his

responsibilities. Also, section 301 authorizes an agency head to

prescribe regulations governing the conduct of its employees and the

custody, use and preservation of its records.

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The final rule in no way affects the rights and procedures

governing access to records that are required under the FOIA. Indeed,

the final rule does not apply to requests for records under the FOIA;

FOIA requests remain governed by Part 505 of the OTS's regulations and

the Treasury Department's FOIA regulations. However, the final rule may

permit the OTS to make records available that are exempt from

disclosure under the FOIA.

The final rule provides that in considering requests for disclosure

of unpublished information, the OTS must weigh carefully the need

demonstrated by a member of the public for access to the OTS's records

and testimony against the public interest in maintaining the

confidentiality of the unpublished information. Among the factors the

OTS will consider in weighing the public interest in confidentiality is

the impact on the OTS's supervisory, examination, and enforcement

responsibilities of releasing such information. The OTS will balance

these and other appropriate considerations with a requester's interest

and expressed need in obtaining such information.

While the vast majority of requests for unpublished records and

testimony arise in the course of litigation to which the OTS is not a

party, this final rule also provides for the evaluation of requests

that arise in a non-litigation context. A non-litigation request must

demonstrate as great a need for release of the information as that

shown by a request made in the course of litigation.

In addition, the final rule, for the first time, authorizes savings

associations to release their examination reports and related

supervisory correspondence to their holding companies, and similarly

authorizes holding companies to release their examination reports and

related supervisory correspondence to their subsidiary savings

associations. Also, reports and other information released under this

rule remain the property of the OTS, regardless of where such reports

or information are physically located.

The final rule also provides for the imposition of fees for

searches for records, copying, certifications and witness fees and

allowances.

A. Revisions to Existing Section 510.5

The final rule completely revises much of existing 12 CFR 510.5. In

particular, the final rule adds detailed procedures for the public to

follow in requesting release of unpublished OTS information and

describes criteria on which the OTS will evaluate such requests. Also,

as noted above, the final rule for the first time authorizes savings

associations to release their examination reports and related

supervisory correspondence to their parent holding companies, and

similarly authorizes holding companies to release their examination

reports and related supervisory correspondence to their subsidiary

savings associations. The final rule also provides for reimbursement to

the OTS for producing records and witnesses. A more detailed

description, section by section, of the revisions made to current

Sec. 510.5 is contained below in ``B. Description of the Proposal''.

B. Description of the Proposal

On December 9, 1993, the OTS published in the Federal Register a

[[Page 28028]] notice of proposed rulemaking describing amendments to

its current Sec. 510.5. 58 FR 64695 (December 9, 1993).2 The

public comment period closed on February 7, 1994. The proposal is

described section by section below:

\2\ The reader is also directed to the preamble discussion in

the proposal for a more detailed discussion of the background of

this regulation.

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Section 510.5(a): Paragraph (a) identifies the types of requests

covered under this rule. This paragraph provides that the rule applies

to requests from the public for unpublished OTS information; the term

``unpublished information'' includes records and testimony. The covered

records include those created or obtained in connection with the OTS's

performance of its responsibilities such as its supervisory,

regulatory, examination, and enforcement-related duties. The covered

testimony includes that of present and former employees, officers, and

agents for information obtained in their official OTS capacities. The

paragraph states that this rule does not apply to records required to

be released under the FOIA, nor does it apply to requests for

information by other government agencies or requests for information

that arise in proceedings in which the OTS is a party.

Section 510.5(b): Paragraph (b) sets out the purpose of this

regulation. The purpose of this rule is to provide an orderly mechanism

for expeditiously processing requests for OTS's unpublished information

while preserving the OTS's need to maintain confidentiality of certain

information.

Section 510.5(c): Paragraph (c) describes the procedures that must

be followed when making a request for unpublished OTS information.

Paragraph (1) describes general procedures that apply to all requests

by members of the public for unpublished information (i.e., records and

testimony). It sets forth the types of information that must be

contained in such requests, including a showing by the requester that

the information sought is highly relevant to the purpose for which it

is sought. In addition, the requester must demonstrate that the

information requested is not available from another source. The

requester must also demonstrate that the need for such information

clearly outweighs the need to maintain the confidentiality of OTS

unpublished information and the burden on the OTS in producing the

information, such as the disruption to the OTS's supervisory and other

responsibilities that is occasioned by reviewing a large volume of

records and loss to the OTS of the services of employees while they

testify at depositions or hearings. This paragraph also requires a

requester who seeks a response in less than 30 days to include an

explanation of why the request was not submitted earlier and why the

expedited handling of the request is necessary.

Paragraphs (2) and (3) set forth additional requirements for

certain types of requests. Paragraph (2) pertains to requests for

records. It requires that requesters of unpublished OTS records

specifically list the types and categories of records sought and the

relevant time period. Paragraph (3) describes special requirements for

requests for testimony from OTS employees. This paragraph states that

requests for testimony by OTS employees or former employees must

specifically describe the substance of the testimony sought and show a

compelling need for the testimony. Such requests shall also include a

demonstration that the information sought is not available from any

other source. This paragraph also prohibits OTS employees from

testifying as expert witnesses for private parties, requests that

litigants anticipate their need for OTS testimony in time for such

testimony to be taken in deposition form, and states that the OTS shall

specify the scope of any authorized testimony.

Paragraph (4) specifies that unpublished OTS information made

available to savings associations, state and Federal agencies and

requesters shall remain the property of the OTS and shall not be

disclosed to any other party without OTS authorization. In addition,

the paragraph authorizes a savings association to provide a copy of its

examination report and related supervisory correspondence to parent

holding companies. Similarly, a savings and loan holding company is

authorized to provide a copy of its examination report and related

supervisory correspondence to its subsidiary savings association(s)

without further authorization from the OTS.

Paragraph (5) provides that requests for unpublished OTS

information shall be sent to the OTS at 1700 G Street, NW., Washington,

D.C. 20552, to the attention of the Corporate Secretary.

Section 510.5(d): Paragraph (d) describes the process by which the

OTS will consider requests for unpublished information, both records

and testimony, and the factors the OTS may consider in denying such

requests.

Section 510.5(e): Paragraph (e) sets forth restrictions on the

dissemination of unpublished OTS information. Paragraph (1) provides

that except as authorized by this regulation or as otherwise authorized

by the Director or his delegate, no current or former OTS employee may

disclose any unpublished OTS information to anyone other than an

employee or agent of the OTS properly entitled to such information for

the performance of their official duties.

Paragraph (2) requires any person with unpublished OTS information

who is served with a subpoena, order, or other process requiring their

attendance as a witness or for production of records, to advise the

issuer of such notice of the substance of this regulation. In addition,

this paragraph prohibits any person with unpublished OTS information

from disclosure of such information in response to a subpoena without

prior OTS authorization.

Paragraph (3) provides that if a person is required to appear in

response to a subpoena or other legal process and is asked to disclose

unpublished OTS information, that person shall decline to produce such

information or give any testimony concerning such information. Upon

receiving such a request or subpoena to testify, the individual is

required to contact promptly the OTS Litigation Division.

Paragraph (4) specifies that the possession of unpublished OTS

information by savings associations, their holding companies, and state

and Federal agencies shall not waive any privilege the OTS might have

to such information.

Section 510.5(f): Paragraph (f) imposes requirements to protect the

confidentiality of unpublished OTS information that is made available

to requesters. Paragraph (1) provides that the release of records will

normally be conditioned upon entry of an acceptable protective order by

the court or administrative tribunal presiding in a particular case or,

in non-litigated matters, upon execution of an acceptable

confidentiality agreement. Paragraph (2) states that the OTS may

condition its authorization of deposition testimony on an agreement of

the parties that the transcript of the testimony shall remain

confidential. This paragraph also requires the party who requested the

testimony to furnish the OTS with a copy of the transcript of the

testimony at its expense.

Section 510.5(g): Paragraph (g) sets forth procedures designed to

limit the burden on the OTS in connection with releasing records.

Paragraph (1) states that requesters who require authenticated records

should request certified copies at least 30 days prior to the date the

records are needed. [[Page 28029]] Paragraph (2) specifies the

responsibility of litigants to share and safeguard OTS records. This

paragraph provides that the party to whom records are released has the

responsibility of notifying the other parties, providing them with

copies of the records, retrieving any records from the court's file

when they are no longer required, and returning such records to the

OTS.

Section 510.5(h): Paragraph (h) sets forth the fees for records

searches, records copying and records certification. Specifically, it

provides that the fees charged to the requester of OTS records shall be

the fees set forth in the Treasury Department regulations, 31 CFR 1.7.

Paragraph (2) requires that witness fees and allowances will be paid by

the requester of testimony of current OTS employees in accordance with

28 U.S.C. 1821.

II. Summary of Comments

A. General Summary

The OTS received a total of 20 letters of comment from 4 types of

sources. Those who submitted comments included 14 savings associations;

5 trade associations; 1 co-operative savings bank; and 1 holding

company (one thrift submitted its comment letter on behalf of itself

and its parent holding company).

Generally, several commenters expressed concern that the proposed

rule would have a ``chilling effect'' on the examination process. They

asserted that the possibility that the OTS might subsequently release

information provided in an examination may impede the free flow of

information from a savings association to the OTS examiners. Some

commenters expressed concern that the proposal was an impermissible

expansion of the FOIA and urged that deviations from the FOIA

requirements be considered cautiously. Also, five commenters supported

the portion of the proposal permitting holding companies to release

their examination reports to their thrifts and thrifts to release

examination reports to their holding companies.

B. Specific Issues Discussion

1. Possible ``Chilling Effect'' on Examination Process

Several commenters speculated that this rule will be detrimental to

the industry in that it will inhibit cooperation and candid

communication between savings associations and the OTS examiners.

Certain of these commenters stated that the examination process and the

supervisory process would be adversely affected by this rule because

institutions may attempt to protect confidential information which

could reasonably be expected to harm the institution if disclosed.

The commenters did not point to any particular situation where such

problems have arisen. In fact, OTS has been following these practices

for several years, and its experience indicates that the integrity of

the examination process will not in any way be compromised by this

rule. In hundreds of instances OTS has produced non-public information

about institutions in response to demands made by litigants in law

suits in which OTS is not a party (``third-party litigation''). In

responding to such requests, OTS has developed a practice over a period

of five years, which is incorporated into this regulation, that

balances confidentiality concerns with the disclosure obligations in

the Federal Rules of Civil Procedure. (Under the Federal Rules of Civil

Procedure, a litigant is generally entitled to discover non-privileged

relevant information.) Specifically, in responding to a request for

release of non-public information, OTS considers the following three

factors: (1) The relevance of the information, (2) the availability of

the information from other sources and (3) whether the need for the

information outweighs the need to keep it confidential and the burden

on OTS. These criteria are set forth in the regulation issued today.

Sec. 510.5(c)(1). Further, in keeping with existing practice, the

regulation provides that if OTS grants a request for disclosure of non-

public information, it will generally condition the release of the

information on the entry of a confidentiality order or agreement that

places limits on the extent to which the recipient may disclose the

information. Sec. 510.5(f).

By selectively releasing information in third-party litigation only

when these criteria are met, and by requiring that a confidentiality

order or agreement be in place before non-public information is

released, OTS has minimized any potential adverse consequence

occasioned by the release of the information. As noted, following these

procedures, OTS has disclosed non-public information in hundreds of

cases in which it has received production demands under the Federal

Rules of Civil Procedure, and it is not aware that this practice has

had any adverse effect on the examination process.

2. Freedom of Information Act Considerations

Six commenters expressed concern that the FOIA specifically exempts

from disclosure certain records, such as OTS's examination reports, and

that the release of such records would be a ``violation'' of the FOIA.

First, the FOIA does not prohibit the release of information; rather,

it requires the disclosure of certain types of records and exempts from

mandatory release other records. The FOIA gives the agency discretion

to release information that it is not otherwise required to release

under FOIA. Among the categories of records that are exempt from

mandatory release are records related to examination, operating or

condition reports prepared by, on behalf of, or for the use of an

agency responsible for the regulation or supervision of financial

institutions.3 Thus, while the FOIA exempts these records from the

mandatory disclosure requirements, it in no manner prevents the OTS

from disclosing this information under the OTS's authority to govern

the custody and the use of its records and the testimony of its

personnel.4 The OTS will continue to exercise its authority to

release such information in a prudent manner by applying the procedures

set forth in the final rule and the relevant federal case law.

\3\ 5 U.S.C. 552(b)(8).

\4\ 12 U.S.C. 1462a; 5 U.S.C. 301.

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3. An Interagency Process Should be Established

The recommendation was made by some commenters that the OTS should

work with the other banking agencies to establish interagency

procedures to provide for consistent application of criteria governing

release of unpublished information concerning financial institutions.

One commenter stated that this is a matter for resolution under the

auspices of the Federal Financial Institutions Examination Council

(FFIEC), and recommended that the OTS refer the issues arising out of

the proposal to the FFIEC.

The nature of requests, the volume of requests and the needs of the

agency may vary from one federal agency to another. While the OTS

agrees with the merits of developing a uniform set of procedures for

responding to requests for unpublished information, the public interest

would not be served by delaying the issuance of this rule while the

prospect of developing uniform procedures on an interagency basis is

explored. Because the existing rule does not describe many of the

practices that OTS has developed over the last several years, it is

preferable to amend the rule now so that the public is informed of the

disclosure process OTS currently uses. [[Page 28030]]

4. Violation of the Right to Privacy

Three commenters asserted that the release of confidential

information without the knowledge and consent of the savings

association violates a general right to privacy of the thrift, its

customers, and its personnel. The commenters identified no statutory

basis for this assertion. In releasing unpublished OTS information, the

OTS has observed and will continue to observe the requirements of the

Privacy Act of 1974, 5 U.S.C. 552a, and the Right to Financial Privacy

Act, 12 U.S.C. 3401 et seq.

5. Source of Information Should be Permitted to Comment

Three commenters suggested that the source or subject of the

confidential information should be permitted to express its views

regarding the release of unpublished information. The OTS has on

occasion contacted the source of the information for its views on

release of the information. However, in the vast majority of cases, the

OTS has been able to evaluate the necessity to maintain the

confidentiality of OTS information without consulting the subject or

source of the OTS information. Therefore, a requirement that the OTS

obtain the subject's or source's views in all instances would result in

unnecessary delays in processing requests. For this reason, the OTS

declines to include a provision requiring that the source's views be

sought, but the OTS will retain, on a case-by-case basis, the practice

of contacting the source of information for input when the

circumstances and timing warrant.

6. Information Shared With Holding Company

Five commenters supported the new provision authorizing a savings

association to provide a copy of its examination report and related

supervisory correspondence to its parent holding company. The

commenters also supported the provision whereby the holding company

would similarly be authorized to provide a copy of its examination

report and related supervisory correspondence to its subsidiary thrift.

This information would enhance the ability of a holding company to

assess its subsidiary thrift's operations and compliance with

regulatory standards, and would permit the holding company to provide

managerial or financial resources when needed. Similarly, a subsidiary

thrift could use this information to address issues it may have with

the holding company and to avoid potential conflicts of interest.

7. Increased Litigation and Increased Costs

Three commenters expressed concern that the final rule will lead to

an increase in shareholder and other lawsuits against savings

associations. Also, two commenters expressed concern that this rule

would greatly increase the amount of OTS employee time and taxpayer

money that would be expended in evaluating requests for information, as

well as increase costs generally. The OTS does not agree with these

concerns. The final rule simply codifies the OTS's existing practices

in evaluating requests from the public for unpublished OTS information.

The OTS's experience over the past five years has not shown that these

practices resulted in increased litigation against savings associations

or increased costs to the OTS. In fact, the final rule should help

reduce costs by decreasing the amount of time that OTS personnel devote

to answering questions from the public about the OTS's procedures for

releasing non-public information. Unlike the current rule, the final

rule specifies in detail the procedures that must be followed and the

information that must be provided when the public requests unpublished

OTS information.

III. Description of the Final Rule

The final rule does not differ materially from the proposal.

Certain non-substantive changes have been made to section 510.5(a)(2)

for clarification purposes. Section 510.5(a)(3) was changed to clarify

that this rule does not apply to other government agencies except where

specifically provided. Also, section 510.5(c)(4)(v) was changed to

clarify that requesters who obtain unpublished OTS information may not

disclose such information without the OTS's authorization.

Certain minor changes have been made to section 510.5(c)(2)(ii) in

response to a comment that was submitted. As proposed, that subsection

provided that if a party to a lawsuit has a claim of privilege

regarding the information in OTS records and the records are in the

possession of that party, the OTS may respond to the request by

authorizing the party to release the records pursuant to an appropriate

confidentiality order rather than by releasing the records directly to

the requesting party, so that the party possessing the records may

argue the issue of privilege in the appropriate court. In the final

rule, the term ``another party to the lawsuit'' has been changed to

``person'' in order to clarify that a person (e.g., an individual,

corporation, partnership) may assert a privilege for non-public OTS

records in its possession or control if it receives a subpoena for such

information in litigation in which it is not a party. The final rule

also clarifies that the privilege may be asserted by the person who has

either possession or control of the records, rather than just

possession of the records.

Section 510.5(c)(5) was also changed to specify that requests

submitted under this regulation should be sent to the attention of the

Corporate Secretary.

Section 510.5(d)(4), which describes the grounds for denying

requests, was modified to include two criteria that are identified in

section 510.5(c), the section that explains the issues that must be

addressed in a request for unpublished OTS information. The additional

criteria for denying a request are (1) the need for the information

does not clearly outweigh the need to maintain the confidentiality of

the information, and (2) the requester has not shown a compelling need

for the testimony. While these criteria are implicit in the grounds for

denial that appeared in the proposed rule and that have been retained

in the final rule (i.e., that OTS may deny requests that are overly

burdensome or contrary to the public interest), OTS is explicitly

including these criteria in the interests of completeness.

Readers are referred to the preamble 5 in the proposal for

additional discussion of provisions that have not been revised in the

final rule.

\5\ 58 FR 64695 (December 9, 1993).

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IV. Paperwork Reduction Act

The reporting requirements contained in this final rule have been

submitted for review and approved by the Office of Management and

Budget, in accordance with the Paperwork Reduction Act of 1980 (44

U.S.C. 3504(h)) under control number 1550-0081. Comments on the

collection of information should be sent to the Office of Management

and Budget, Paperwork Reduction Project (1550), Washington, D.C. 20503,

with copies to the Office of Thrift Supervision, 1700 G Street, NW.,

Washington, D.C. 20552.

The reporting requirements in this final rule are found in 12 CFR

510.5(c)-(g). The information is needed by the OTS to provide a more

efficient mechanism for expeditiously processing requests for

unpublished information.

V. Regulatory Flexibility Act

Pursuant to section 605(b) of the Regulatory Flexibility Act (Pub.

L. 96-354, 5 U.S.C. 601), it is certified that this

[[Page 28031]] regulation will not have a significant economic impact

on a substantial number of small savings associations, small service

corporations, or other small entities. This regulation simply sets

forth the procedures utilized by the OTS in its handling of requests

for unpublished OTS information and imposes fees in connection with

such requests. Accordingly, a regulatory flexibility analysis is not

required.

VI. Executive Order 12866

The OTS has determined that this regulation does not constitute a

``significant regulatory action'' for purposes of Executive Order

12866.

List of Subjects

12 CFR Part 506

Reporting and recordkeeping requirements.

12 CFR Part 510

Administrative practice and procedure.

Accordingly, the Office of Thrift Supervision hereby amends parts

506 and 510, subchapter A, chapter V, title 12 of the Code of Federal

Regulations as set forth below.

SUBCHAPTER A--ORGANIZATION AND PROCEDURES

PART 506--INFORMATION COLLECTION REQUIREMENTS UNDER THE PAPERWORK

REDUCTION ACT

1. The authority citation for part 506 continues to read as

follows:

Authority: 44 U.S.C. 3501 et seq.

2. Section 506.1 is amended by adding in numerical order one new

entry to the table in paragraph (b) to read as follows:

Sec. 506.1 OMB control numbers assigned pursuant to the Paperwork

Reduction Act.

* * * * *

(b) Display.

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Current OMB

12 CFR part or section where identified and described control No.

------------------------------------------------------------------------

* * * * *

510.5(c) through (g)....................................... 1550-0081

* * * * *

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PART 510--MISCELLANEOUS ORGANIZATIONAL REGULATIONS

3. The authority citation for part 510 is revised to read as

follows:

Authority: 5 U.S.C. 301; 12 U.S.C. 1462a, 1463, 1464.

4. Section 510.5 is revised to read as follows:

Sec. 510.5 Release of unpublished OTS information.

(a) Scope. (1) This section applies to requests by the public for

unpublished OTS information, such as requests for records or testimony

from parties to lawsuits in which the OTS is not a party.

(2) Unpublished OTS information includes records created or

obtained in connection with the OTS's performance of its

responsibilities, such as records concerning supervision, regulation,

and examination of savings associations, their holding companies, and

affiliates, and records compiled in connection with the OTS's

enforcement responsibilities. Unpublished OTS information also includes

information that current and former employees, officers, and agents

obtained in their official capacities. Examples of unpublished

information include:

(i) Information in the memory of a current or former employee,

officer, or agent of the OTS (or the Federal Home Loan Bank Board, the

predecessor agency of the OTS), by testimony or informal interview,

that was acquired in the course of performing official duties or

because of the employee's, officer's or agent's official status;

(ii) Reports of examination, supervisory correspondence, internal

agency memoranda and investigatory files compiled in connection with an

investigation, whether such records are in the possession of the OTS or

some other individual or entity; and

(iii) Unpublished OTS records obtained by or in the possession of

third parties, including other government agencies.

(3) This section does not apply to:

(i) Requests for records or testimony in proceedings in which the

OTS is a party;

(ii) Requests for information by other government agencies, except

when specifically provided; and

(iii) Requests for records that are required to be disclosed under

the Freedom of Information Act, see 5 U.S.C. 552, and 31 CFR 1.1-1.6.

(b) Purpose. The purposes of this section are:

(1) To afford an orderly mechanism for the OTS to expeditiously

process requests for unpublished OTS information and, where

appropriate, for the OTS to assert evidentiary privileges in

litigation;

(2) To balance the need for confidentiality of unpublished OTS

information with the private party's interest in obtaining disclosure

of that information;

(3) To ensure that the time of OTS employees is utilized in the

most efficient manner consistent with the OTS's statutory mission;

(4) To prevent undue burdens on the OTS;

(5) To limit the expenditure of the OTS's funds for private

purposes; and

(6) To maintain the impartiality of the OTS among private

litigants.

(c) Procedure.--(1) Requests for records and testimony in general.

A request for unpublished OTS information must be in writing, furnish

the caption of the lawsuit if the request arises in the course of

litigation, and support the requester's claim that the information

sought is highly relevant to the purpose for which it is sought. In

demonstrating that the information is highly relevant, the requester

must explain in detail how the requested OTS information relates to the

issues in the case or the matter.

(i) For requests arising in lawsuits, the submission also must

include:

(A) A copy of the complaint or equivalent document in the case and

any other pleadings necessary to show relevance;

(B) A description of any prior decisions or pending motions in the

case that may bear on the asserted relevance of the information being

sought from the OTS; and

(C) The names, addresses and phone numbers of counsel to all other

parties in the case.

(ii) In all instances, in addition to demonstrating that the

information sought is highly relevant to the purpose for which it is

sought, the requester must:

(A) Demonstrate that the information sought is not available from

any other source; and

(B) Demonstrate that the need for the information clearly outweighs

the need to maintain the confidentiality of the OTS information and the

burden on the OTS to produce the information.

(iii) If a request seeks a response in fewer than 30 days, it must

include an explanation of why the requester was unable to submit the

request earlier and why expediting the request is required.

(2) Additional provisions relating to requests for records. In

addition to the requirements of paragraph (c)(1) of this section, the

provisions in paragraphs (c)(2)(i) and (c)(2)(ii) of this section apply

to requests for disclosure of records.

(i) A request for records must list the categories of records

sought and describe the specific information sought, including the

relevant time period.

(ii) When the OTS believes that another person has a claim of

privilege regarding the information in the records [[Page 28032]] and

the records are in the possession or control of that person, such as

reports prepared by a savings association's attorneys that are shared

with the OTS, the OTS may respond to the request by authorizing that

person to release the records pursuant to an appropriate

confidentiality order rather than by the OTS releasing the records

directly to the requesting party. This will enable the person

possessing or controlling the records to argue any issues of privilege

to the appropriate court.

(3) Additional provisions relating to requests for testimony from

OTS employees. In addition to the requirements of paragraph (c)(1) of

this section, the provisions in paragraphs (c)(3)(i) through (c)(3)(iv)

of this section apply to requests that current or former OTS employees

be authorized to give testimony.

(i) The request must specifically describe the substance of the

testimony sought and show a compelling need for the testimony. A

showing of compelling need should include a demonstration that the

requested information is not available from any other source, such as

the books and records of other persons or entities, OTS records that

have been or might be released, or the testimony of other non-OTS

persons, including retained experts.

(ii) OTS employees will not be authorized to provide expert or

opinion testimony for private parties.

(iii) The OTS expects litigants to anticipate their need for OTS

testimony in sufficient time to request and obtain that testimony in

deposition form. A request for testimony at a trial or hearing may not

be granted unless the requester shows that properly developed

deposition testimony could not be used or would not be adequate at the

trial or hearing.

(iv) The OTS shall specify the scope of any authorized testimony

and may take steps to ensure that the scope of testimony taken adheres

to the scope authorized. Parties to the case who did not join in the

request and who wish to question the witness beyond the authorized

scope should request expanded authorization pursuant to this

regulation. The OTS will attempt to render decisions on such requests

in an expedited manner.

(4) Information available to savings associations, holding

companies, state and Federal agencies and requesters. (i) The regular

report of examination of a savings association, savings and loan

holding company, or other affiliate of a savings association is made

available by the appropriate Regional Office to the entity examined.

(ii) A subsidiary savings association of a savings and loan holding

company may reproduce and furnish a copy of its report of examination

and related supervisory correspondence of the savings association to

its parent holding company(ies) without prior approval of the OTS. A

savings and loan holding company may reproduce and furnish a copy of

its report of examination and related supervisory correspondence to

another affiliated savings and loan holding company that controls the

same savings association or its subsidiary savings association(s)

without prior approval of the OTS. This paragraph does not require such

disclosure by a parent savings and loan holding company or subsidiary

savings association.

(iii) Reports of examination and other information relating to

state-chartered savings associations and affiliates are made available,

upon request, by the OTS to the state governmental authority having

general supervision of such state-chartered savings associations.

(iv) Reports of examination and other information may be made

available by the OTS to other agencies of the United States, a state

agency, or to the Federal Home Loan Banks, for use where necessary in

the performance of their official duties.

(v) All reports or other information made available to savings

associations, holding companies, affiliates, other governmental

agencies or requesters shall remain the property of the OTS and, except

as permitted by this section or otherwise by the Director or his

delegate, no person, company, agency, or authority to whom the

information is made available, or any officer, director, employee or

agent thereof, shall disclose any such information except published

statistical material that would not disclose the identity of any

individual or corporation.

(5) Where to submit requests. In all matters covered by this

section, notification of the issuance of subpoenas or compulsory

process and requests for records or testimony covered by this section

must be sent to the OTS at 1700 G Street NW., Washington, DC 20552, to

the attention of the Corporate Secretary, and should be labelled

``Request for Release of Unpublished Information Under Section 510.5.''

Requesters may furnish copies of the request or subpoenas

simultaneously to the appropriate OTS Regional Office, but the

furnishing of such copies does not constitute service on the OTS.

(d) Consideration of requests--(1) In general. The OTS will

generally process requests in the order in which they are received. The

OTS will endeavor to respond to requests within 30 days, but this may

vary depending on the scope and precision of the request. The OTS will

weigh requests for processing in less than 30 days against the burden

to the OTS of expedited processing and the unfairness to other parties

whose pending requests may be delayed.

(2) Consultation with requester. The OTS may consult with the

requester to:

(i) Refine and limit the scope of the request so as to reduce the

burden and expense on the OTS; or

(ii) Obtain additional information necessary for the OTS to make an

informed determination on the request. To the extent necessary to reach

an informed determination on the request, the OTS may inquire into the

circumstances of the underlying matter and rely on sources of

information beyond the requester, including other interested parties.

(3) Final determinations. Final determinations on requests will be

made by the Director or his delegate. All such determinations are the

sole discretion of the Director or his delegate. Requesters will be

notified in writing of the disposition of the request.

(4) Denial of requests. (i) The OTS may deny requests for records

or testimony that seek information that the OTS deems to be:

(A) Not highly relevant;

(B) Privileged;

(C) Available from other sources; or

(D) Information that should not be disclosed for reasons that

warrant restriction of discovery under the Federal Rules of Civil

Procedure (28 U.S.C. appendix).

(ii) The OTS may also deny a records or testimony request when it

considers production of the information to be overly burdensome or

contrary to the public interest, or where OTS determines that the need

for the information does not clearly outweigh the need to maintain the

confidentiality of the information, or where the requester seeks

testimony and has not shown a compelling need for the testimony.

(5) Confidentiality Orders and Agreements. As is set forth in

paragraph (f) of this section, the OTS may condition release of

information on the entry by the relevant tribunal of an order

satisfactory to the OTS or, in a non-litigated matter, the execution of

a confidentiality agreement that limits access of third parties to the

unpublished OTS information. It shall be the duty of the requesting

party to obtain such an order or to execute a confidentiality

agreement. [[Page 28033]]

(e) Parties with access to OTS information; restriction on

dissemination--(1) Current and former employees. Except as authorized

by this section or as otherwise authorized by the Director or his

delegate, no current or former employee, officer or agent of the OTS or

a predecessor agency shall disclose or permit the disclosure of any

unpublished information of the OTS to anyone (other than an employee,

officer or agent of the OTS properly entitled to such information for

the performance of their official duties), whether by giving out or

furnishing such information or a copy thereof or by allowing any person

to inspect, examine, or copy such information or copy thereof, or

otherwise.

(2) Duty of person served. If any person, whether or not a current

or former employee, officer or agent of the OTS, has information of the

OTS that may not be disclosed under the regulations of the OTS or other

applicable law, and in connection therewith is served with a subpoena,

order, or other process requiring personal attendance as a witness or

production of records or information in any proceeding, that person

shall promptly advise the OTS of such service or request for

information. Upon such notice the OTS will take appropriate action to

advise the court or tribunal that issued the process and the attorney

for the party at whose instance the process was issued, if known, of

the substance of this section. Such notice to the OTS shall be made by

contacting the Litigation Division, Office of Chief Counsel, Office of

Thrift Supervision, 1700 G Street NW., Washington, DC 20552. As

provided in paragraph (e)(3) of this section, a person so served with

process may not disclose OTS information without OTS authorization. To

obtain OTS authorization, a request must be sent to the OTS in

Washington, DC, in accordance with paragraph (c) of this section.

(3) Appearance by person served. Except as the OTS has authorized

disclosure of the relevant information, or except as authorized by law,

any person who has information of the OTS that may not be disclosed

under this section and is required to respond to a subpoena or other

legal process shall attend at the time and place therein mentioned and

respectfully decline to produce such records or give any testimony with

respect thereto, basing such refusal on this part. If, notwithstanding,

the court or other body orders the disclosure of such records or the

giving of such testimony, the person having such information of the OTS

shall continue respectfully to decline to produce such information and

shall promptly advise the Litigation Division of the Chief Counsel's

Office, Office of Thrift Supervision. Upon such notice the OTS will

take appropriate action to advise the court or tribunal which issued

the order, of the substance of this section.

(4) Non-waiver of privilege. The possession by any entity or

individual described in paragraph (c)(4) of this section of OTS records

covered by this section shall not waive any privilege of the OTS or the

OTS's right to supervise the further dissemination of these records.

(f) Orders and agreements protecting the confidentiality of

unpublished OTS information--(1) Records. Unless otherwise permitted by

the OTS, release of records authorized pursuant to this section will be

conditioned by the OTS upon entry of an acceptable protective order by

the court or administrative tribunal presiding in the particular case,

or, in non-litigated matters, upon execution of an acceptable

confidentiality agreement. In cases where protective orders have

already been entered, the OTS reserves the right to condition approval

for release of information upon the inclusion of additional or amended

provisions.

(2) Testimony. The OTS may condition its authorization of

deposition testimony on an agreement of the parties that the transcript

of the testimony will be kept under seal, or will be made available

only to the parties, the court and the jury, except to the extent that

the OTS may allow use of the transcript in related litigation. The

party who requested the testimony shall, at its expense, furnish to the

OTS a copy of the transcript of testimony of the OTS employee or former

employee.

(g) Limitation of burden on the OTS in connection with released

records--(1) Authentication for use as evidence. The OTS will

authenticate released records to facilitate their use as evidence.

Requesters who require authenticated records should request certified

copies at least 30 days prior to the date they will be needed. The

request should be sent to the OTS Public Disclosure Branch and shall

identify the records, giving the office or record depository where they

are located (if known) and include copies of the records and payment of

the certification fee.

(2) Responsibility of litigants to share released records. The

party who has sought and obtained OTS records has the responsibility

of:

(i) Notifying other parties to the case of the release and, after

entry of a protective order, providing copies of the records to the

other parties who are subject to the protective order; and

(ii) Retrieving any records from the court's file as soon as the

records are no longer required by the court and returning them to the

OTS. Where a party may be involved in related litigation, the OTS may,

upon a request made to it pursuant to this section, authorize such

party to transfer the records for use in that related case.

(h) Fees--(1) Fees for records searches, copying and

certifications. Requesters shall be charged fees in accordance with

Treasury Department regulations, 31 CFR 1.7. With certain exceptions,

the regulations in 31 CFR 1.7 provide for recovery of the full direct

costs of searching, reviewing, certifying and duplicating the records

sought. An estimate of the statement of charges will be sent to

requesters, and fees shall be remitted by check payable to the OTS

prior to release of the requested records. Where it deems appropriate,

the OTS may contract with commercial copying concerns to copy the

records, with the cost billed to the requester.

(2) Witness fees and allowances. (i) Litigants whose requests for

testimony of current OTS employees are approved shall, upon completion

of the testimonial appearance, promptly tender a check payable to the

OTS for witness fees and allowances in accordance with 28 U.S.C. 1821.

(ii) All litigants whose requests for testimony of former OTS

employees are approved, shall also promptly tender witness fees and

allowances to the witness in accordance with 28 U.S.C. 1821.

Dated: May 22, 1995.

By the Office of Thrift Supervision.

Jonathan L. Fiechter,

Acting Director.

[FR Doc. 95-12967 Filed 5-26-95; 8:45 am]

BILLING CODE 6720-01-P