1-6.100
Introduction
Subpart B of Part 16 of Title 28, Code of Federal Regulations, was
amended by Attorney General Order No. 919-80, effective December 4, 1980,
published at 45 Fed. Reg. 83,210 (1980). These regulations provide that no
present or former employee of the Department of Justice may testify or
produce Departmental records in response to subpoenas or demands of courts
or other authorities issued in any state or federal proceeding without
obtaining prior approval by an appropriate Department official. Information
regulated by 28 C.F.R. 16.21 et seq., falls into the following
categories:
- Any material contained in the files of the Department;
- Any information relating to material contained in the files of the
Department; or
- Any information acquired by an employee of the Department as a part of
the performance of that employee's official duties or because of the
employee's official status.
The 1980 amendments to the regulations both decentralize the
authorization power and establish different procedures to be followed in
cases in which the United States is and those cases in which the United
States is not a party. Additionally, alternate procedural steps are
sometimes involved where the "originating component" is or is not a
litigating division of the Department. A denial policy generally applicable
to both situations exists.
As will be noted in Section 1-6.400, the regulations are not intended to
create new privileges or to supersede existing discovery rules. They simply
are intended to provide a procedure whereby the Department will have the
opportunity to protect certain types of information from unwarranted and
unconsidered disclosure. Specific questions should be referred to the
appropriate litigating division of the Department.
[cited in USAM 1-3.000]
1-6.111
Definitions—"Employee"
|
The term "employee" is defined to include "all officers and employees of
the United States appointed by, or subject to the supervision, jurisdiction,
or control of the Attorney General of the United States, including United
States Attorneys, U.S. Marshals, U.S. Trustees and members of the staffs of
those officials." 28 C.F.R. 16.21(b). A state or local law enforcement
officer assigned to a joint task force or other working group is included
within this definition to the extent the subpoena or demand relates to his
or her work on the task force. However, if authorization is sought for
testimony by a federal employee employed by an agency other than the
Department of Justice, Department policy requires that such authorization be
obtained from the employing agency even if the employee is a member of a
joint team such as an Organized Crime Strike Force. Also included in the
definition are former Department employees in cases in which the subpoena or
demand seeks testimony as to information acquired while the person was employed
by the Department.
[cited in USAM 1-3.000]
1-6.112
"Originating Component"
|
The term "originating component" means the bureau, division, office, or
agency of the Department that was responsible for the collection, assembly,
or other preparation of the materials demanded, or that, at the time the
person whose testimony was demanded acquired the information in question,
employed such person. 28 C.F.R. 16.24(a). See the DOJ Organization and Functions Manual at 19 and
22 for examples of the concept of "originating
component."
1-6.113
"Motion to Quash"
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The term "motion to quash" includes a motion for a protective order and
appropriate objections to testimony.
1-6.120
Inapplicability of 28 C.F.R., Section 16.21 et seq. in Certain Cases
|
The regulations are limited in their scope to subpoenas and demands
issued for the testimony of Department of Justice employees or records only.
The regulations do not apply to subpoenas received by an official of another
government agency or to requests for that agency's documents, even if the
Department of Justice is representing the agency in the litigation.
Employees of another federal agency should be advised to contact the General
Counsel's Office of their agency for appropriate instructions if they
receive a subpoena.
In those cases in which a Department of Justice employee is required to
testify in a matter unrelated to his/her official duties or to disclose
information not contained in the Department's files nor acquired as part of
his/her official duties, the regulations do not apply. For illustrative
examples, see the DOJ Organizations and
Functions Manual at 18.
[cited in USAM 1-3.000;
Criminal Resource Manual 18]
1-6.200
Procedure Where United States is Not a Party
|
Sections 1-6.210 through 1-6.270 describe procedures to be followed when
the United States is not a party.
1-6.210
Notification on Receipt of Request
|
Requests for authorization pursuant to the regulations are initiated
when an employee of the Department informs the United States Attorney for
the district in which the issuing authority for the demand is located of
receipt of the demand. 28 C.F.R. 16.22(b). All employees are directed to
notify the appropriate USAO immediately upon receipt of the subpoena or
other demand. Unless the United States Attorney is made aware of the demand,
the procedures prescribed in the regulations cannot be put into effect;
thus, it is urgent that each USAO be notified promptly by the employee
receiving the demand and that each USAO establish procedures to receive such
notification and to take the appropriate steps under the regulations.
1-6.220
Required Affidavit for Oral Testimony
|
Section 16.22(c) requires that the party making a demand for oral
testimony must provide the USA with an affidavit, or, if that is not
feasible, with a statement setting forth a summary of the oral testimony
sought by the demand and its relevance to the proceedings. If authorization
for oral testimony is subsequently granted, it must be limited to the scope
of the demand as summarized in such affidavit or statement. Section 16.22(d)
imposes similar summary and relevancy requirements when information other
than oral testimony is sought. It should be noted that the authorization
granted by the appropriate Department official for testimony is to be
limited to the scope of the demand as summarized, although the recommended
practice is to limit authorization for release of information other than
oral testimony to the demanding party's request, as well, absent some
special circumstances.
It should also be noted that a motion to quash based on applicable
privileges and rules of evidence on relevancy is often appropriate. In such
cases the United States Attorney or his/her designated assistant should take
that action as soon as practicable. 28 C.F.R. 16.24(c).
In addition, negotiation with the party making the demand is, in many
cases, quite appropriate. Often the issues can be narrowed so that
authorization is possible or the demand may be withdrawn once the
government's relevant concerns and supporting arguments are raised and
discussed. Quite often a potentially lengthy litigative battle can be
resolved without excess time or cost through negotiations; such negotiations
are actively encouraged by the Department. 28 C.F.R. 16.24(c).
It has been held that it is not error for a court to refuse to order a
United States Attorney to testify when the Department's regulations have
been cited as to lack of authorization under circumstances in which the
moving party has failed to submit the affidavit or statement summarizing the
testimony desired so that the Department could consider the request and
determine whether to grant permission for the testimony. United States v.
Allen, 554 F.2d 398 (10th Cir.1977), cert. denied, 434 U.S. 836
(1977).
[cited in USAM 1-3.000;
1-6.320]
1-6.230
Consultation With the Originating Component
|
After the United States Attorney has clarified the scope of the demand
he/she must notify the official in charge of the bureau, division, office,
or agency of the Department that was responsible for the collection,
assembly, or other preparation of the material demanded or that, at the time
the person whose testimony is demanded acquired the information in question,
employed such person. These units are collectively referred to as the
"originating component." 28 C.F.R. 16.24(a). For illustrative examples,
see the DOJ Organization and Functions
Manual at 19.
[cited in
Criminal Resource Manual 19]
1-6.240
Authorizing Disclosure in General
|
In cases in which the United States is not a party, the power to
authorize the disclosure is initially vested in the United States Attorney
for the district in which the demand originated. 28 C.F.R. 16.22. As a
general policy, the Department favors cooperation in state and federal cases
in which the testimony of one of its employees is sought or in which
information obtained by the Department is sought. Authorization in one form
or another is usually granted if it is appropriate under the rules of
procedure governing the case or matter in which the demand arose, and if it
is appropriate under the relevant substantive law concerning privilege.
See 28 C.F.R. 16.26(a) and USAM
1-6.420. A denial is not usually approved unless one of the factors set
forth in 28 C.F.R. 16.26(b) is present. These factors include such things as
that the disclosure will cause a violation of a statute or regulation or the
revelation of a confidential source, classified information, trade secrets, the
existence of a criminal
investigation, or investigative techniques. See the EOUSA Organization and Functions Manual at 25.
1-6.250
Procedure if the United States Attorney and the Originating
Component Both Desire Disclosure
|
In cases in which the United States is not a party, the United States
Attorney for the district in which the issuing authority for the demand is
located may authorize disclosure if the originating component does not
object and if disclosure is both appropriate under the rules of procedure
and the law of privilege. 28 C.F.R. 16.26(a), and will not involve any of
the provisions of 28 C.F.R. 16.26(b) on factors that justify a denial. 28
C.F.R. 16.24(b). For an illustrative example, see the
DOJ Organization and Functions Manual at 20.
[cited in
Criminal Resource Manual 20]
1-6.260
Procedure if the United States Attorney and the Originating
Component Either Disagree on Disclosure or Agree That No Disclosure Should
be Made
|
These cases are discussed in sections 1-6.261 and 1-6.262 below.
[cited in USAM 1-3.000]
1-6.261
Where Information Was Collected in Connection With a Matter
Supervised by a Litigating Division
|
If the United States Attorney and the originating component either
disagree about the appropriateness of the disclosure or they agree that no
disclosure should be made, they should then determine if the demand involves
information that was collected, assembled, or prepared in connection with
litigation or an investigation that is supervised by a division of the
Department. If so, the United States Attorney must notify the Assistant
Attorney General in charge of the division responsible for such litigation
or investigation.
The AAG may:
- Authorize disclosure;
- Request the filing by the United States Attorney of 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 the Associate Attorney
General for final resolution. 28 C.F.R. 16.24(d)(1).
For an illustrative example, see the DOJ
Organization and Functions Manual at 21. It
should again be noted that the filing of a motion to quash, if suitable
grounds exist, is the obvious step to take at the start of the process. The
United States Attorney is always authorized to take this step and is
expected to do so and argue the motion vigorously whenever it is appropriate
to file such a motion.
[cited in
Criminal Resource Manual 21]
1-6.262
Where Information Was Collected in Connection With a Matter Not
Supervised by a Litigating Division
|
If the demand does not involve information collected in connection with
an investigation or litigation under the supervision of a division of the
Department, and there is a disagreement between the United States Attorney
and the originating component on disclosure, the originating component has
the authority to decide whether the disclosure is appropriate, except that,
when an especially significant issue is raised, the United States Attorney
may refer the matter to the Deputy Attorney General for higher level review.
28 C.F.R. 16.24(d)(2). The term "especially significant issue" is not
defined in the regulations. It would seem that the raising by either side of
a factor set forth in 28 C.F.R. 16.26(b) would qualify as an "especially
significant issue." In addition, as a matter of comity, each of the two
parties should give due deference to the views of the other in determining
whether to seek higher level review. For an illustrative example, see
the DOJ Organization and Functions Manual at
22.
[cited in
Criminal Resource Manual 22]
1-6.270
Denial Policy—United States Not a Party
|
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.
[cited in USAM 1-3.000]
1-6.300
Procedure Where United States is a Party
|
Sections 1-6.310 through 1-6.370 describe procedures to be followed when
the United States is a party.
[Updated January 2004]
1-6.310
Notification on Receipt of Request
|
In cases in which the United States is a party, any employee of the
Department receiving a subpoena is to immediately notify the attorney for
the Department of Justice in charge of the case or matter. Occasionally
information indicating the identity of such attorney will appear in the
subpoena or demand that is served on the employee. In other cases, that
information can be obtained by contacting the USAO for the district in which
the demand arises or by contacting the appropriate division of the
Department. It is essential that the specific attorney in charge of the case
or matter be located and notified as soon as possible, as it is this
attorney who is responsible for taking the appropriate actions under the
regulations and who has the power to authorize testimony of the production
of records in cases in which he/she deems such procedure to be appropriate.
1-6.320
Required Affidavit for Oral Testimony
|
In all cases in which a Department of Justice employee informs the
appropriate Departmental trial attorney that he/she has been served with a
demand for oral testimony, that attorney must clarify the demand by getting,
where possible, an affidavit or, if that is not feasible, a statement
setting forth a summary of the testimony or other information sought from
the party making the demand. 28 C.F.R. 16.23(c). Note that unlike the
situation in which the United States is not a party, in cases in which the
United States is a party and the demand is for information other than oral
testimony, no request may be required of the demanding party for a summary
of the information sought or its relevance to the proceeding. The statements
in USAM 1-6.220 on the use of appropriate
motions to quash and the efficacy of negotiations to narrow a demand in
cases in which the United States is not a party, are generally applicable as
well to cases in which the United States is a party, bearing in mind the special
considerations that are
necessary in dealing directly with a litigative adversary. 28 C.F.R.
16.24(c). See also the discussion of United States v. Allen in USAM 1-6.220.
1-6.330
Consultation With the Originating Component
|
After the attorney in charge of the case or matter has clarified the
scope of a demand for oral testimony, or in the case of a demand for
non-oral testimony upon receipt of the notice of the demand, the attorney
for the government must notify the official in charge of the originating
component and consult with that component on the question of complying with
the demand. See 28 C.F.R. 16.24(a). Consultation in this context requires
obtaining the views of the originating component, especially in the presence
or absence of the factors set forth in 28 C.F.R. 16.26.
1-6.340
Authorizing Disclosure in General
|
Section 16.23, 28 C.F.R. provides that every attorney in the Department
of Justice in charge of any case or matter in which the United States is a
party is authorized, after consultation with the originating component, to
disclose relevant unclassified material deemed necessary or desirable to the
discharge of that attorney's official duties, provided the disclosure is
appropriate under the rules of procedure and the law of privilege (28 C.F.R.
16.26(a)), and further provided that disclosure would not violate statutes
or regulations, or reveal confidential sources, classified information,
trade secrets, ongoing investigations, or investigatory techniques. 28
C.F.R. 16.26(b). For illustrative examples, see the DOJ Organization and Functions Manual at 23.
When, in the attorney's judgment, any of the factors set forth in
Section 16.26(b) exist which preclude testimony or disclosure, no testimony
or disclosure may be made without the express prior approval of the
Assistant Attorney General in charge of the division responsible for
supervising the case or matter or such person's designee. 28 C.F.R.
16.23(a). An attorney in charge of a case or matter in which the United
States is a party may also, at any time, request that the supervisory
Assistant Attorney General review his/her decision on complying with a
demand. 28 C.F.R. 16.23(b).
[cited in
Criminal Resource Manual 23]
1-6.340
1-6.350
Procedure if the Department Attorney in Charge of a Case and the
Originating Component Both Agree on Disclosure
|
If, after consultation, the originating component does not object to
disclosure and the attorney in charge of the case or matter determines that
disclosure is appropriate under 28 C.F.R. 16.26(a) and not barred by any
factor set forth in 28 C.F.R. 16.26(b), the attorney is empowered to
authorize the disclosure without seeking any further approval. 28 C.F.R.
16.24(b).
1-6.360
Procedure if the Department Attorney in Charge of a Case and the
Originating Component Either Disagree on Disclosure or Agree that the Demand
Should be Denied |
There are three possible situations that can arise after consultation
when there is disagreement on release or agreement on the appropriateness of
a denial. | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |