Production of Nonpublic Records and Testimony of OPIC Employees in Legal Proceedings

OVERSEAS PRIVATE INVESTMENT CORPORATION

22 CFR Parts 706, 713

RIN 3420-AA02

Production of Nonpublic Records and Testimony of OPIC Employees

in Legal Proceedings

AGENCY: Overseas Private Investment Corporation.

ACTION: Final rule.

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SUMMARY: This final rule establishes rules regarding subpoenas seeking

nonpublic records or the testimony of current or former OPIC employees

in legal proceedings. The final rule facilitates access to records in

OPIC's custody by centralizing agency decision-making with respect to

demands for records or testimony in such legal proceedings. The final

rule provides procedures, requirements and information on how OPIC will

handle these matters, and expressly prohibits any disclosure or

testimony except as provided by the rule. The effect of this final rule

will be, among other benefits, to ensure an efficient use of OPIC

resources, promote uniformity in decisions, protect confidential

information, maintain agency control over the release of official

information, protect the interests of the United States, and provide

guidance to parties. The final rule also amends the current rule

regarding release of OPIC records which are exempt from disclosure

under the Freedom of Information Act (FOIA), to conform with the

procedures provided in this final rule.

DATES: Effective March 22, 1999.

FOR FURTHER INFORMATION CONTACT: Mitchel Neurock, Counsel for

[[Page 8240]]

Administrative Affairs, at (202) 336-8400.

SUPPLEMENTARY INFORMATION: This final rule implements, with minor

technical changes, the proposed rule published on December 10, 1998. 63

FR 68213. More than 60 government agencies and departments have

promulgated regulations governing the circumstances and manner in which

an employee may respond to demands for testimony or production of

documents. These regulations, issued under the authority of 5 U.S.C.

301, the so-called ``housekeeping statute,'' are separate from FOIA

regulations. In addition, OPIC has statutory authority to ``take such

actions as may be necessary or appropriate to carry out the powers''

granted it by Congress. 22 U.S.C. 2199(d).

The housekeeping statute expressly states that it does not provide

a basis for withholding information or limiting the availability of

records, but authorizes a head of an executive agency to issue

``regulations for the government of his department, the conduct of its

employees, the distribution and performance of its business and the

custody, use and preservation of its records, papers, and property.'' 5

U.S.C. 301. These regulations are known as ``Touhy regulations,''

thanks to a landmark Supreme Court decision, United States ex rel.

Touhy v. Ragen, 340 U.S. 462 (1951).

OPIC receives subpoenas and requests for OPIC employees to provide

evidence in legal proceedings. Typically, subpoenas are for OPIC

records which are not available to the public under the Freedom of

Information Act (FOIA), 5 U.S.C. 552. Also, OPIC receives subpoenas and

requests for OPIC employees to appear as witnesses in legal proceedings

in conjunction with requests for nonpublic records or to provide

testimony.

In recent years, the number of requests has averaged 3 to 4 per

year. Often, these subpoenas and requests relate to litigation

involving projects financed and/or insured in whole or in part by OPIC,

where one or more parties want to use nonpublic records, such as OPIC

financing documents, in the case. In addition, parties to litigation

frequently wish to have an OPIC employee, often a finance or insurance

officer, testify to establish the authenticity of the records or to

explain the information contained in those records. If OPIC provides

these records and an OPIC employee appears as a witness, this will

cause a significant disruption in the employee's work schedule.

Moreover, instead of producing a witness to testify as to the

authenticity of documents, OPIC could provide documents under its

corporate seal, the authenticity of which must be judicially noted. See

22 U.S.C. 2199(d).

Additionally, in many cases parties wish to use an OPIC employee as

an expert witness on matters such as the fundamentals of project

finance or other issues involving opinion evidence. OPIC's experience

has been that, in practically all cases, the parties can address these

issues by eliciting the testimony of other witnesses, including the

testimony of their own independent expert witnesses. They may also use

their own records.

OPIC's prior regulations failed to inform parties about any matter

concerning submission of subpoenas. There was no guidance for parties

seeking to submit subpoenas addressing when parties should submit a

request for nonpublic documents or testimony, the time period for

OPIC's review of such a request, potential fees, or, if a request is

granted, any restrictions which OPIC might place upon the disclosure of

records or the appearance of an OPIC employee as a witness. There was

also no guidance for parties about the factors OPIC will consider in

making its determination in response to such requests.

This final rule fills in these gaps in OPIC's regulations. The

final rule, in brief: prohibits disclosure of nonpublic records or

testimony by OPIC employees, as defined, absent compliance with the

rule; lets the public know what information to submit and what factors

OPIC will consider; and sets out filing fees, deadlines and potential

restrictions on disclosure of nonpublic documents and testimony of OPIC

employees. The charges for witnesses are the same as those provided by

the federal courts, and the fees relating to the production of records

are the same as those charged under FOIA.

A few simple definitions clarify that this final rule applies to a

broad range of cases (not just matters before courts). The final rule

applies to former as well as to current OPIC employees. Former OPIC

employees remain prohibited from testifying about specific matters for

which they had responsibility during their OPIC employment, unless

permitted to testify as provided in this final rule. They are not,

however, barred from appearing on general matters or otherwise

employing their expertise (as expert witnesses, for example).

This final rule solves some problems which have arisen in the past.

It should eliminate or reduce eleventh hour requests for nonpublic

documents or testimony of OPIC employees. The procedures and criteria

will ensure a more efficient use of OPIC resources, will minimize the

possibility of involving OPIC in issues unrelated to its

responsibilities, will promote uniformity in responding to such

requests and subpoenas, and will maintain the necessary impartiality of

OPIC in matters between private litigants. The final rule will serve

OPIC's interest in protecting sensitive, confidential and privileged

information and records generated by its work.

This final rule is procedural, not substantive. It does not confer

a benefit upon anyone. It does not create a right to obtain OPIC

records or the testimony of any OPIC employee, past or present, nor

does it create any additional right or privilege not already available

to OPIC to deny such a request. OPIC makes no waiver of its sovereign

immunity by implementing this rule. Failure to comply with the rule,

however, constitutes grounds for OPIC's denial of any request.

Requesters may be able to seek judicial review of any final

determination by OPIC under the Administrative Procedure Act, 5 U.S.C.

702.

This final rule is not intended to restrict access to records under

FOIA, the Privacy Act (5 U.S.C. 552a), or any other authority. At the

same time, nothing in this final rule would permit disclosure of

information by OPIC or its employees except as provided by statute or

other applicable law.

During the comment period provided by the notice of proposed

rulemaking, OPIC received no formal comments.

Regulatory Procedures

Regulatory Flexibility Act

The Regulatory Flexibility Act requires OPIC to prepare an analysis

to describe any significant economic impact any proposed regulation may

have on any small business or other small entity. 5 U.S.C. 602, 603.

OPIC has determined and certifies that this final rule, if adopted,

will not have a significant economic impact on any entity. The reasons

for this determination are that the copying and witness fees to be

charged to persons and entities submitting requests under the

regulation are not large, and will not create a financial burden. The

final rule will not create any significant demand for legal, accounting

or consulting expenditures. Accordingly, OPIC has determined that a

Regulatory Flexibility Analysis is not required.

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Paperwork Reduction Act

OPIC has determined that this rulemaking is not subject to the

Paperwork Reduction Act, because OPIC averages fewer than 10 requests

per year, and expects this level of activity to remain below this

threshold. 5 CFR 1320.3(c).

Executive Order 12612

OPIC has determined that this final rule will not have a

substantial direct effect on the States, on the relationship between

the national government and the States, or on the distribution of power

and responsibilities among various levels of government.

List of Subjects

22 CFR Part 706

Freedom of information.

22 CFR Part 713

Administrative practice and procedure, Confidential business

information, Freedom of Information Act, Government employees,

Reporting and recordkeeping requirements, Subpoenas.

For the reasons set forth in the preamble, 22 CFR Chapter VII is

amended as follows:

PART 706--[AMENDED]

1. The authority citation for Part 706 is revised to read as

follows:

Authority: The Freedom of Information Act, as amended, 5 U.S.C.

552; 5 U.S.C. 301; 22 U.S.C. 2199(d).

2. In Sec. 706.22, designate the introductory text as paragraph (a)

and redesignate the previous paragraphs (a) through (f) as paragraphs

(a)(1) through (a)(6). Add paragraph (b) to read as follows:

Sec. 706.22 Information and records not generally available to the

public.

* * * * *

(b) Prohibition against disclosure. Except as provided in Part 713

of this Chapter or by other law or regulation, no officer, employee or

agent of OPIC shall disclose or permit the disclosure of any exempt

records of OPIC or of any information described in paragraph (a) of

this section to any person other than those OPIC officers, employees or

agents properly entitled to such information for the performance of

their official duties.

3. Part 713 is added to read as follows:

PART 713--PRODUCTION OF NONPUBLIC RECORDS AND TESTIMONY OF OPIC

EMPLOYEES IN LEGAL PROCEEDINGS

Sec.

713.1 What does this part prohibit?

713.2 When does this part apply?

713.3 How do I request nonpublic records or testimony?

713.4 What must my written request contain?

713.5 When should I make my request?

713.6 Where should I send my request?

713.7 What will OPIC do with my request?

713.8 If my request is granted, what fees apply?

713.9 If my request is granted, what restrictions may apply?

713.10 Definitions.

Authority: 5 U.S.C. 301; 5 U.S.C. 552; 5 U.S.C. 552a; 5 U.S.C.

702; 18 U.S.C. 207; 18 U.S.C. 641; 22 U.S.C. 2199(d); 28 U.S.C.

1821.

Sec. 713.1 What does this part prohibit?

This part prohibits the release of nonpublic records for legal

proceedings or the appearance of an OPIC employee to testify in legal

proceedings except as provided in this part. Any person possessing

nonpublic records may release them or permit their disclosure or

release only as provided in this part.

(a) Duty of OPIC employees.

(1) If you are an OPIC employee and you are served with a subpoena

requiring you to appear as a witness or to produce records, you must

promptly notify the Vice-president/General Counsel in the Department of

Legal Affairs. The Vice-President/General Counsel has the authority to

instruct OPIC employees to refuse to appear as a witness or to withhold

nonpublic records. The Vice-President/General Counsel may let an OPIC

employee provide testimony, including expert or opinion testimony, if

the Vice-President/General Counsel determines that the need for the

testimony clearly outweighs contrary considerations.

(2) If a court or other appropriate authority orders or demands

from you expert or opinion testimony or testimony beyond authorized

subjects contrary to the Vice-President/General Counsel's instructions,

you must immediately notify the Vice-President/General Counsel of the

order and then respectfully decline to comply with the order. You must

decline to answer questions on the grounds that this part forbids such

disclosure. You should produce a copy of this part, request an

opportunity to consult with the Vice-President/General Counsel, and

explain that providing such testimony without approval may expose you

to disciplinary or other adverse action.

(b) Duty of persons who are not OPIC employees.

(1) If you are not an OPIC employee but have custody of nonpublic

records, as defined at Sec. 713.10, and you are served with a subpoena

requiring you to produce records or to testify as a witness, you must

promptly notify OPIC of the subpoena. Also, you must notify the issuing

court or authority and the person or entity for whom the subpoena was

issued of the contents of this part. Provide notice to OPIC by sending

a copy of the subpoena to the Vice-President/General Counsel, OPIC,

1100 New York Avenue, NW, Washington, DC 20527. After reviewing notice,

OPIC may advise the issuing court or authority and the person or entity

for whom the subpoena was issued that this part applies and, in

addition, may intervene, attempt to have the subpoena quashed or

withdrawn, or register appropriate objections.

(2) After you notify the Vice-President/General Counsel of the

subpoena, respond to the subpoena by appearing at the time and place

stated in the subpoena, unless otherwise directed by the Vice

President/General Counsel. Unless otherwise authorized by the Vice-

President/General Counsel, decline to produce any records or give any

testimony, basing your refusal on this part. If the issuing court or

authority orders the disclosure of records or orders you to testify,

decline to produce records or testify and advise the Vice-President/

General Counsel.

(c) Penalties. Anyone who discloses nonpublic records or gives

testimony related to those records, except as expressly authorized by

OPIC or as ordered by a federal court after OPIC has had the

opportunity to be heard, may face the penalties provided in 18 U.S.C.

641 and other applicable laws. Also, former OPIC employees, in addition

to the prohibition contained in this part, are subject to the

restrictions and penalties of 18 U.S.C. 207.

Sec. 713.2 When does this part apply?

This part applies if you want to obtain nonpublic records or

testimony of an OPIC employee for a legal proceeding. It does not apply

to records that OPIC is required to release, or of which OPIC makes

discretionary release, under the Freedom of Information Act (FOIA),

records that OPIC releases to federal or state investigatory agencies,

records that OPIC is required to release pursuant to the Privacy Act, 5

U.S.C. 552a, or records that OPIC releases under any other applicable

authority.

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Sec. 713.3 How do I request nonpublic records or testimony?

To request nonpublic records or the testimony of an OPIC employee,

you must submit a written request to the Vice-President/General Counsel

of OPIC. If you serve a subpoena on OPIC or an OPIC employee before

submitting a written request and receiving a final determination, OPIC

will oppose the subpoena on the grounds that you failed to follow the

requirements of this part. You may serve a subpoena as long as it is

accompanied by a written request that complies with this part.

Sec. 713.4 What must my written request contain?

Your written request for records or testimony must include:

(a) The caption of the legal proceeding, docket number, and name of

the court or other authority involved.

(b) A copy of the complaint or equivalent document setting forth

the assertions in the case and any other pleading or document necessary

to show relevance.

(c) A list of categories of records sought, a detailed description

of how the information sought is relevant to the issues in the legal

proceeding, and a specific description of the substance of the

testimony or records sought.

(d) A statement as to how the need for the information outweighs

the need to maintain the confidentiality of the information and

outweighs the burden on OPIC to produce the records or provide

testimony.

(e) A statement indicating that the information sought is not

available from another source, such as the requestor's own books and

records, other persons or entities, or the testimony of someone other

than an OPIC employee, such as retained experts.

(f) A description of all prior decisions, orders, or pending

motions in the case that bear upon the relevance of the records or

testimony you want.

(g) The name, address, and telephone number of counsel to each

party in the case.

(h) An estimate of the amount of time you anticipate that you and

other parties will need with each OPIC employee for interviews,

depositions, and/or testimony.

Sec. 713.5 When should I make my request?

Submit your request at least 45 days before the date you need the

records or testimony. If you want your request processed in a shorter

time, you must explain why you could not submit the request earlier and

why you need such expedited processing. If you are requesting the

testimony of an OPIC employee, OPIC expects you to anticipate your need

for the testimony in sufficient time to obtain it by deposition. The

Vice-President/General Counsel may well deny a request for testimony at

a legal proceeding unless you explain why you could not have used

deposition testimony instead. The Vice-President/General Counsel will

determine the location of a deposition, taking into consideration

OPIC's interest in minimizing the disruption for an OPIC employee's

work schedule and the costs and convenience of other persons attending

the deposition.

Sec. 713.6 Where should I send my request?

Send your request or subpoena for records or testimony to the

attention of the Vice-President/General Counsel, OPIC, 1100 New York

Avenue NW, Washington, DC 20527.

Sec. 713.7 What will OPIC do with my request?

(a) Factors OPIC will consider. OPIC may consider various factors

in reviewing a request for nonpublic records or testimony of OPIC

employees, including:

(1) Whether disclosure would assist or hinder OPIC in performing

its statutory duties or use OPIC resources unreasonably, including

whether responding to the request will interfere with OPIC employees'

ability to do their work.

(2) Whether disclosure is necessary to prevent the perpetration of

a fraud or other injustice in the matter.

(3) Whether you can get the records or testimony you want from

sources other than OPIC.

(4) Whether the request is unduly burdensome.

(5) Whether disclosure would violate a statute, executive order, or

regulation, such as the Privacy Act, 5 U.S.C. 552a.

(6) Whether disclosure would reveal confidential, sensitive or

privileged information, trade secrets or similar, confidential

commercial or financial information, or would otherwise be

inappropriate for release and, if so, whether a confidentiality

agreement or protective order as provided in Sec. 713.9(a) can

adequately limit the disclosure.

(7) Whether the disclosure would interfere with law enforcement

proceedings, compromise constitutional rights, or hamper OPIC programs

or other OPIC operations.

(8) Whether the disclosure could result in OPIC's appearing to

favor one litigant over another.

(9) Any other factors OPIC determines to be relevant to the

interests of OPIC.

(b) Review of your request. OPIC will process your request in the

order it is received. OPIC will try to respond to your request within

45 days, but this may vary, depending on the scope of your request.

(c) Final determination. the Vice-President/General Counsel makes

the final determination on requests for nonpublic records or OPIC

employee testimony. All final determinations are in the sole discretion

of the Vice-President/General Counsel. The Vice-President/General

Counsel will notify you and the court or other authority of the final

determination of your request. In considering your request, the Vice-

President/General Counsel may contact you to inform you of the

requirements of this part, ask that the request or subpoena be modified

or withdrawn, or may try to resolve the request or subpoena informally

without issuing a final determination.

Sec. 713.8 If my request is granted, what fees apply?

(a) Generally. You must pay any fees associated with complying with

your request, including copying fees for records and witness fees for

testimony. The Vice-President/General Counsel may condition the

production of records or appearance for testimony upon advance payment

of a reasonable estimate of the fees.

(b) Fees for records. You must pay all fees for searching,

reviewing and duplicating records produced in response to your request.

The fees will be the same as those charged by OPIC under its Freedom of

Information Act regulations, 22 CFR Part 706, Subpart B, Sec. 706.26.

(c) Witness fees. Your must pay the fees, expenses, and allowances

prescribed by the court's rules for attendance by a witness. If no such

fees are prescribed, the local federal district court rule concerning

witness fees, for the federal district court closest to where the

witness appears, will apply. For testimony by current OPIC employees,

you must pay witness fees, allowances, and expenses to the Vice-

President/General Counsel by check made payable to the ``Overseas

Private Investment Corporation'' within 30 days from receipt of OPIC's

billing statement. For the testimony of a former OPIC employee, you

must pay witness fees, allowances, and expenses directly to the former

employee, in accordance with 28 U.S.C. 1821 or other applicable

statutes.

(d) Certification of records. OPIC may authenticate or certify

records to facilitate their use as evidence. If you require

authenticated records, you must request certified copies at least 45

days before the date they will be needed. Send your request to the

Vice-President/

[[Page 8243]]

General Counsel. OPIC will charge you a certification fee of $5.00 per

document.

(e) Waiver of fees. A waiver or reduction of any fees in connection

with the testimony, production, or certification or authentication of

records may be granted in the discretion of the Vice-President/General

Counsel. Waivers will not be granted routinely. If you request a

waiver, your request for records or testimony must state the reasons

why a waiver should be granted.

Sec. 713.9 If my request is granted, what restrictions may apply?

(a) Records. The Vice-President/General Counsel may impose

conditions or restrictions on the release of nonpublic records,

including a requirement that you obtain a protective order or execute a

confidentiality agreement with the other parties in the legal

proceeding that limits access to and any further disclosure of the

nonpublic records. The terms of a confidentiality agreement or

protective order must be acceptable to the Vice-President/General

Counsel. In cases where protective orders or confidentiality agreements

have already been executed, OPIC may condition the release of nonpublic

records on an amendment to the existing protective order or

confidentiality agreement.

(b) Testimony. The Vice-President/General Counsel may impose

conditions or restrictions on the testimony of OPIC employees,

including, for example, limiting the areas of testimony or requiring

you and the other parties to the legal proceeding to agree that the

transcript of the testimony will be kept under seal or will only be

used or made available in the particular legal proceeding for which you

requested the testimony. The Vice-President/General Counsel may also

require you to provide a copy of the transcript of the testimony to

OPIC at your expense.

Sec. 713.10 Defintitions.

For purposes of this part:

Legal proceedings means any matter before any federal, state or

foreign administrative or judicial authority, including courts,

agencies, commissions, boards, grand juries, or other tribunals,

involving such proceedings as lawsuits, licensing matters, hearings,

trials, discovery, investigations, mediation or arbitration. When OPIC

is a party to a legal proceeding, it will be subject to the applicable

rules of civil procedure governing production of documents and

witnesses; however testimony and/or production of documents by OPIC

employees, as defined, will still be subject to this part.

Nonpublic records means any OPIC records which are exempt from

disclosure by statute or under Part 706, OPIC's regulations

implementing the provisions of the Freedom of Information Act. For

example, this may include records created in connection with OPIC's

receipt, evaluation and action on actual and proposed OPIC finance

projects and insurance policies (whether such projects or policies were

cancelled or not), including all reports, internal memoranda, opinions,

interpretations, and correspondence, whether prepared by OPIC employees

or by persons under contract, as well as confidential business

information submitted by parties seeking to do business with OPIC.

Whether OPIC has actually chosen in practice to apply any exemption to

specific documents is irrelevant to the question of whether they are

``nonpublic'' for the purposes of this Part.

OPIC employee means current and former officials, members of the

Board of Directors, officers, directors, employees and agents of the

Overseas Private Investment Corporation, including contract employees,

consultants and their employees. This definition does not include

persons who are no longer employed by OPIC and are retained or hired as

expert witnesses or agree to testify about general matters, matters

available to the public, or matters with which they had no specific

involvement or responsibility during their employment.

Subpoena means any order, subpoena for records or other tangible

things or for testimony, summons, notice or legal process issued in a

legal proceeding.

Testimony means any written or oral statements made by an

individual in connection with a legal proceeding, including personal

appearances in court or at depositions, interviews in person or by

telephone, responses to written interrogatories or other written

statements such as reports, declarations, affidavits, or certifications

or any response involving more than the delivery of records.

Dated: February 9, 1999.

Michael C. Cushing,

Managing Director for Administration.

[FR Doc. 99-4125 Filed 2-18-99; 8:45 am]

BILLING CODE 3210-01-M