[Code of Federal Regulations]
[Title 43, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 43CFR2]
[Page 40-56]
TITLE 43--PUBLIC LANDS: INTERIOR
PART 2--RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT--Table of Contents
Subpart H--Legal Process: Testimony by Employees and Production of Records
Source: 65 FR 46369, July 28, 2000, unless otherwise noted.
Redesignated at 67 FR 64530, Oct. 21, 2002.
General Information
Sec. 2.80 What does this subpart cover?
(a) This subpart describes how the Department of the Interior
(including all its bureaus and offices) responds to requests or
subpoenas for:
(1) Testimony by employees in State, territorial or Tribal judicial,
legislative or administrative proceedings concerning information
acquired while performing official duties or because of an employee's
official status;
(2) Testimony by employees in Federal court civil proceedings in
which the United States is not a party concerning information acquired
while performing official duties or because of an employee's official
status;
(3) Testimony by employees in any judicial or administrative
proceeding in which the United States, while not a party, has a direct
and substantial interest;
(4) Official records or certification of such records for use in
Federal, State, territorial or Tribal judicial, legislative or
administrative proceedings.
(b) In this subpart, ``employee'' means a current or former
Department employee, including a contract or special government
employee.
(c) This subpart does not apply to:
(1) Congressional requests or subpoenas for testimony or records;
(2) Federal court civil proceedings in which the United States is a
party;
(3) Federal administrative proceedings;
(4) Federal, State and Tribal criminal court proceedings;
[[Page 41]]
(5) Employees who voluntarily testify, while on their own time or in
approved leave status, as private citizens as to facts or events that
are not related to the official business of the Department. The employee
must state for the record that the testimony represents the employee's
own views and is not necessarily the official position of the
Department. See 5 CFR Secs. 2635.702(b), 2635.807 (b).
(6) Testimony by employees as expert witnesses on subjects outside
their official duties, except that they must obtain prior approval if
required by Sec. 2.90.
(d) This subpart does not affect the rights of any individual or the
procedures for obtaining records under the Freedom of Information Act
(FOIA), Privacy Act, or statutes governing the certification of official
records. The Department FOIA and Privacy Act regulations are found at 43
CFR Part 2, subparts B and D.
(e) Nothing in this subpart is intended to impede the appropriate
disclosure under applicable laws of Department information to Federal,
State, territorial, Tribal, or foreign law enforcement, prosecutorial,
or regulatory agencies.
(f) This subpart only provides guidance for the internal operations
of the Department, and neither creates nor is intended to create any
enforceable right or benefit against the United States.
Sec. 2.81 What is the Department's policy on granting requests for
employee testimony or Department records?
(a) Except for proceedings covered by Sec. 2.80(c) and (d), it is
the Department's general policy not to allow its employees to testify or
to produce Department records either upon request or by subpoena.
However, if you request in writing, the Department will consider whether
to allow testimony or production of records under this subpart. The
Department's policy ensures the orderly execution of its mission and
programs while not impeding any proceeding inappropriately.
(b) No Department employee may testify or produce records in any
proceeding to which this subpart applies unless authorized by the
Department under Secs. 2.80 through 2.90 United States ex rel. Touhy v.
Ragen, 340 U.S. 462 (1951).
Responsibilities of Requesters
Sec. 2.82 How can I obtain employee testimony or Department records?
(a) To obtain employee testimony, you must submit:
(1) A written request (hereafter a ``Touhy Request;'' see Sec. 2.84
and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951)); and
(2) A statement that you will submit a check for costs to the
Department of the Interior, in accordance with Sec. 2.85, if your Touhy
Request is granted.
(b) To obtain official Department records, you must submit:
(1) A Touhy Request; and
(2) A Statement that you agree to pay the costs of duplication in
accordance with 43 CFR Part 2, appendix A, if your Touhy Request is
granted.
(c) You must send your Touhy Request to:
(1) The employee's office address;
(2) The official in charge of the employee's bureau, division,
office or agency; and
(3) The appropriate unit of the Solicitor's Office.
(d) To obtain employee testimony or records of the Office of
Inspector General, you must send your Touhy Request to the General
Counsel for the Office of Inspector General.
(e) 43 CFR Part 2, Appendix B contains a list of the addresses of
the Department's bureaus and offices and the units of the Solicitor's
Office. The General Counsel for the Inspector General is located at the
address for the Office of the Inspector General. If you do not know the
employee's address, you may obtain it from the employee's bureau or
office.
Sec. 2.83 If I serve a subpoena duces tecum, must I also submit a Touhy
request?
Yes. If you serve a subpoena for employee testimony, you also must
submit a request under United States ex rel. Touhy v. Regan, 340 U.S.
462 (1951)? If you serve a subpoena duces tecum for records in the
possession of the Department, you also must submit a Touhy Request.
[[Page 42]]
Sec. 2.84 What information must I put in my Touhy Request?
Your Touhy Request must:
(a) Identify the employee or record;
(b) Describe the relevance of the desired testimony or records to
your proceeding and provide a copy of the pleadings underlying your
request;
(c) Identify the parties to your proceeding and any known
relationships they have to the Department's mission or programs;
(d) Show that the desired testimony or records are not reasonably
available from any other source;
(e) Show that no record could be provided and used in lieu of
employee testimony;
(f) Provide the substance of the testimony expected of the employee;
and
(g) Explain why you believe your Touhy Request complies with
Sec. 2.88.
Sec. 2.85 How much will I be charged?
We will charge you the costs, including travel expenses, for
employees to testify under the relevant substantive and procedural laws
and regulations. You must pay costs for record production under 43 CFR
Part 2, Appendix A. Costs must be paid by check or money order payable
to the Department of the Interior.
Sec. 2.86 Can I get an authenticated copy of a Department record?
Yes. We may provide an authenticated copy of a Department record,
for purposes of admissibility under Federal, State or Tribal law. We
will do this only if the record has been officially released or would
otherwise be released under Sec. 2.13 or this Subpart.
Responsibility of the Department
Sec. 2.87 How will the Department process my Touhy Request?
(a) The appropriate Department official will decide whether to grant
or deny your Touhy Request. Our Solicitor's Office or, in the case of
the Office of Inspector General, its General Counsel, may negotiate with
you or your attorney to refine or limit both the timing and content of
your Touhy Request. When necessary, the Solicitor's Office or, in the
case of the Office of Inspector General, its General Counsel, also will
coordinate with the Department of Justice to file appropriate motions,
including motions to remove the matter to Federal court, to quash, or to
obtain a protective order.
(b) We will limit our decision to allow employee testimony to the
scope of your Touhy Request.
(c) If you fail to follow the requirements of this Subpart, we will
not allow the testimony or produce the records.
(d) If your Touhy Request is complete, we will consider the request
under Sec. 2.88.
Sec. 2.88 What criteria will the Department consider in responding to
my Touhy Request?
In deciding whether to grant your Touhy Request, the appropriate
Department official will consider:
(a) Your ability to obtain the testimony or records from another
source;
(b) The appropriateness of the employee testimony and record
production under the relevant regulations of procedure and substantive
law, including the FOIA or the Privacy Act; and
(c) Our ability to:
(1) Conduct our official business unimpeded;
(2) Maintain impartiality in conducting our business;
(3) Minimize the possibility that we will become involved in issues
that are not related to our mission or programs;
(4) Avoid spending public employee's time for private purposes;
(5) Avoid the negative cumulative effect of granting similar
requests;
(6) Ensure that privileged or protected matters remain confidential;
and
(7) Avoid undue burden on us.
Responsibilities of Employees
Sec. 2.89 What must I, as an employee, do upon receiving a request?
(a) If you receive a request or subpoena that does not include a
Touhy Request, you must immediately notify your supervisor and the
Solicitor's Office, or the General Counsel of the Office of the
Inspector General, as applicable, for assistance in issuing the proper
response.
[[Page 43]]
(b) If you receive a Touhy Request, you must promptly notify your
supervisor and forward the request to the head of your bureau, division
or office. After consulting with the Solicitor's Office or, in the case
of the Office of Inspector General, its General Counsel, the official in
charge will decide whether to grant the Touhy Request under Sec. 2.88.
(c) All decisions granting or denying a Touhy Request must be in
writing. The official in charge must ask the applicable unit of the
Solicitor's Office or, in the case of the Office of Inspector General,
its General Counsel, for advice when preparing the decision.
(d) Under 28 U.S.C. 1733, Federal Rule of Civil Procedure 44(a)(1),
or comparable State or Tribal law, a request for an authenticated copy
of a Department record may be granted by the person having the legal
custody of the record. If you believe that you have custody of a record:
(1) Consult your delegated authority to determine if you can grant a
request for authentication of records; and
(2) Consult the Solicitor's Office or, in the case of the Office of
Inspector General, its General Counsel, concerning the proper form of
the authentication (as authentication requirements may vary by
jurisdiction).
Sec. 2.90 Must I get approval before testifying as an expert witness on
a subject outside the scope of my official duties?
(a) You must comply with 5 CFR 2635.805(c), which details the
authorization procedure for an employee to testify as an expert witness,
not on behalf of the United States, in any judicial or administrative
proceeding in which the United States is a party or has a direct and
substantial interest. This procedure means:
(1) You must obtain the written approval of your Deputy Ethics
Official;
(2) You must be in an approved leave status if you testify during
duty hours; and
(3) You must state for the record that you are appearing as a
private individual and that your testimony does not represent the
official views of the Department.
(b) If you testify as an expert witness on a matter outside the
scope of yoru official duties, and which is not covered by paragraph (a)
of this section, you must comply with 5 CFR 2635.802 and 5 CFR 3501.105.
Appendix A To Part 2--Department of the Interior FOIA/Public Affairs
Contacts and Reading Rooms
[[Page 44]]
[GRAPHIC] [TIFF OMITTED] TR21OC02.020
[[Page 45]]
[GRAPHIC] [TIFF OMITTED] TR21OC02.021
[[Page 46]]
[GRAPHIC] [TIFF OMITTED] TR21OC02.022
[[Page 47]]
[GRAPHIC] [TIFF OMITTED] TR21OC02.023
[[Page 48]]
[GRAPHIC] [TIFF OMITTED] TR21OC02.024
[[Page 49]]
[GRAPHIC] [TIFF OMITTED] TR21OC02.025
[[Page 50]]
[GRAPHIC] [TIFF OMITTED] TR21OC02.026
[[Page 51]]
[GRAPHIC] [TIFF OMITTED] TR21OC02.027
[[Page 52]]
[GRAPHIC] [TIFF OMITTED] TR21OC02.028
Note: For more information on FOIA, including the most current
listing of FOIA Contacts, visit DOI's FOIA home page at http://
www.doi.gov/foia/.
[67 FR 64541, Oct. 21, 2002]
Appendix B to Part 2--Internet Addresses
1. Department of the Interior (DOI) Home Page: http://www.doi.gov
2. DOI FOIA Home Page: http://www.doi.gov/foia/
3. DOI Reference Guide for Obtaining Information: http://
www.doi.gov/foia/foitabl.htm
4. List of DOI Public Affairs Offices: http://www.doi.gov/foia/
list.html
5. DOI FOIA Contacts: http://www.doi.gov/foia/contacts.html
6. DOI FOIA Regulations (43 CFR, Part 2, Subparts A and B): http://
www.doi.gov/foia/foiaregs.html
7. DOI FOIA Policy and Guidance: http://www.doi.gov/foia/policy.html
8. Electronic Reading Room: http://www.doi.gov/foia/readroom.html
9. Index of Frequently Requested Documents: http://www.doi.gov/foia/
freq.html
10. DOI's Frequently Requested Documents: http://www.doi.gov/foia/
frrindex.html
[[Page 53]]
11. FOIA Annual Reports to Congress: http://www.doi.gov/foia/
report.html
12. DOI's Library: http://library.doi.gov
13. General Records Schedule 14, Information Services Records:
http://ardor.nara.gov/grs/grs14.html
14. DOI Records Management Program: http://www.doi.gov/ocio/records/
15. DOI Privacy Act Program: http://www.doi.gov/ocio/privacy/
16. DOI Privacy Act Officers: http://www.doi.gov/ocio/privacy/doi--
privacy--act--officers.htm
17. DOI Privacy Act Regulations: http://www.doi.gov/foia/
43cfrsub.html
18. DOI Privacy Act Systems of Records Notices: http://
www.access.gpo.gov/su--docs/aces/1999--pa.html
19. FirstGov Portal: http://www.firstgov.gov
Note: See DOI's FOIA home page at http://www.doi.gov/foia/ for the
most current listing of FOIA-related website addresses.
[67 FR 64541, Oct. 21, 2002]
Appendix C to Part 2--Fee Schedule
If you submit a FOIA request, the bureau will charge you to search
for, review, and duplicate the requested records according to your fee
category (see Secs. 2.16 and 2.17) and the following fee schedule. In
addition, the bureau will charge you for any special handling or
services performed in connection with processing your request and/or
appeal under Subparts C and D of this part. The following fees will be
used by all bureaus of the Department; these fees apply to services
performed in making documents available for public inspection and
copying under Subpart B of this part as well. The duplicating fees also
are applicable to records provided in response to requests made under
the Privacy Act. Fees will not be charged under either the FOIA or the
Privacy Act where the total amount of fees for processing the request is
$30 or less (see Sec. 2.16(b)(2)), where the requester has met the
requirements for a statutory fee waiver, or where the bureau has granted
a discretionary fee waiver (see Secs. 2.19 and 2.20).
(1) Search and review (review applies to commercial-use requesters
only). Fees are based on: the average hourly salary (base salary plus DC
locality payment), plus 16 percent for benefits, of employees in the
following three categories. The average grade was established by
surveying the bureaus to obtain the average grade of employees
conducting FOIA searches and reviews. Fees will be increased annually
consistent with Congressionally approved pay increases. Fees are charged
in quarter hour increments.
(a) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and
below)
(b) Professional--Based on GS-11, Step 7, pay (all employees at GS-8
through GS-12)
(c) Managerial--Based on GS-14, Step 2, pay (all employees at GS-13
and above)
Note: Fees for the current fiscal year are posted on DOI's FOIA home
page (see Appendix B). If you do not have access to the Internet, please
call the Departmental FOIA Officer (see Appendix A) for a copy of the
fee schedule.
------------------------------------------------------------------------
Fee
------------------------------------------------------------------------
(2) Duplication:
Pages no larger than 8.5 x 14 inches, when $.13 per page ($.26 for
reproduced by standard office copying double-sided copying)
machines.
Color copies of pages no larger than 8.5 x $.90 per page
11 inches.
Pages larger than 8.5 x 14 inches......... Direct cost to DOI
Color copies of pages no larger than 11 x $1.50 per page
17 inches.
Photographs and records requiring special Direct cost to DOI
handling (e.g., because of age, size, or
format).
(3) Electronic records:
Charges for services related to processing Direct cost to DOI
requests for electronic records.
(4) Certification......................... Fee
Each certificate of verification attached $.25
to authenticate copies of records.
(5) Postage/Mailing:
Charges that exceed the cost of first Postage or Delivery charge
class postage. Examples of such charges
are express mail or overnight delivery.
(6) Other Services:
Cost of special services or materials, Direct cost to DOI
other than those provided for by this fee
schedule, when requester is notified of
such costs in advance and agrees to pay
them.
------------------------------------------------------------------------
[67 FR 64541, Oct. 21, 2002]
Appendix D to Part 2--Fee Waiver Criteria
If you are seeking a fee waiver, it is your responsibility to
provide detailed information to support your request. You must submit
this information with your FOIA request. You should explain the
significance of the release of the information to the public's
understanding of the Government's operations and activities based on
your understanding of the type of information that you
[[Page 54]]
are requesting. Each fee waiver request is judged on its own merit--we
do not grant ``blanket'' fee waivers, i.e., obtaining a fee waiver once
does not mean you will obtain a subsequent fee waiver. Please note that
inability to pay is not sufficient to justify a fee waiver.
(a) The statutory requirement for granting a fee waiver is that
release of the information must be in the public interest because it--
(1) Is likely to contribute significantly to public understanding of
the operations and activities of the Government; and
(2) Is not primarily in your commercial interest.
(b) In deciding whether you are entitled to a fee waiver, the bureau
will consider the criteria in paragraphs (1) through (4), below. Your
request for a fee waiver must address each of these criteria.
(1) How do the records concern the operations or activities of the
Government?
(2) If the records concern the operations or activities of the
Government, how will disclosure likely contribute to public
understanding of these operations and activities?
(i) How are the contents of the records you are seeking meaningfully
informative on the Department's or a bureau's operations and activities?
Is there a logical connection between the content of the records and the
operations or activities you are interested in?
(ii) Other than enhancing your knowledge, how will disclosure of the
requested records contribute to the understanding of the public at large
or a reasonably broad audience of persons interested in the subject?
(iii) Your identity, vocation, qualifications, and expertise
regarding the requested information (whether you are affiliated with a
newspaper, college or university, have previously published articles,
books, etc.) may be relevant factors. However, merely stating that you
are going to write a book, research a particular subject, or perform
doctoral dissertation work, is insufficient, without demonstrating how
you plan to disclose the information in a manner which will be
informative to a reasonably broad audience of persons interested in the
subject.
(iv) Do you have the ability and intention to disseminate the
information to the general public or a reasonably broad audience of
persons interested in the subject?
(A) How and to whom do you intend to disseminate the information?
(B) How do you plan to use the information to contribute to public
understanding of the Government's operations or activities?
(3) If there is likely to be a contribution to public understanding,
will release of the requested records contribute significantly to public
understanding?
(i) Is the information being disclosed new?
(ii) Does the information being disclosed confirm or clarify data
which has been released previously?
(iii) How will disclosure increase the level of public understanding
of the operations or activities of the Department or a bureau that
existed prior to disclosure?
(iv) Is the information already publicly available? If the
Government previously has published the information you are seeking or
it is routinely available to the public in a library, reading room,
through the Internet, or as part of the administrative record for a
particular issue (e.g., the listing of the spotted owl as an endangered
species), it is less likely that there will be a significant
contribution from release.
(4) Would disclosure be primarily in your commercial interest?
(i) Do you have a commercial interest that would be furthered by
disclosure? A commercial interest is a commercial, trade, or profit
interest as these terms are commonly understood. Your status as
``profitmaking'' or ``non-profitmaking'' is not the deciding factor. Not
only profitmaking entities, but other organizations or individuals may
have a commercial interest to be served by disclosure, depending on the
circumstances involved.
(ii) If you do have a commercial interest that would be furthered by
disclosure, would disclosure be primarily in that interest? Would the
public interest in disclosure be greater than any commercial interest
you or your organization may have in the documents? If so, how would it
be greater?
(iii) Your identity, vocation, and the circumstances surrounding
your request are all factors to be considered in determining whether
disclosure would be primarily in your commercial interest. For example:
(A) If you are a representative of a news media organization seeking
information as part of the news gathering process, we will presume that
the public interest outweighs your commercial interest.
(B) If you represent a business/corporation/association or you are
an attorney representing such an organization, we will presume that your
commercial interest outweighs the public interest unless you demonstrate
otherwise.
(c) If the bureau cannot make a determination based on the
information you have provided, it may ask you for additional
justification regarding your request.
[67 FR 64541, Oct. 21, 2002]
Appendix E to Part 2--FOIA Exemptions
Under the FOIA (5 U.S.C. 552(b)), there are nine exemptions which
may be used to protect information from disclosure. The Department has
paraphrased the exemptions, below, for your information. The paraphrases
[[Page 55]]
are not intended to be interpretations of the exemptions.
(1) National security information concerning national defense or
foreign policy, provided that such information has been properly
classified, in accordance with an Executive Order;
(2) Information related solely to the internal personnel rules and
practices of an agency;
(3) Information specifically exempted from disclosure by statute
(other than the Privacy Act or the Trade Secrets Act), provided that
such statute:
(A) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(B) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information which is
obtained from a person and is privileged or confidential;
(5) Inter-agency or intra-agency memorandums or letters, which would
not be available by law to a party other than an agency in litigation
with the agency;
(6) Personnel and medical files and similar files, the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
the release of which:
(A) Could reasonably be expected to interfere with enforcement
proceedings;
(B) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(C) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(D) Could reasonably be expected to disclose the identity of a
confidential source;
(E) Would disclose techniques, procedures, or guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(F) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Information contained in or related to examination, operating,
or condition reports, prepared by, or on behalf of, or for the use of an
agency responsible for regulating or supervising financial institutions;
and
(9) Geological and geophysical information and data, including maps,
concerning wells.
[67 FR 64541, Oct. 21, 2002]
Appendix F to Part 2--Mineral Leasing Act and Mineral Leasing Act for
Acquired Lands--Special Rules
(a) Definitions. As used in the section:
(1) Exploration license means a license issued by the Secretary of
the Interior to conduct coal exploration operations on land subject to
the Mineral Leasing Act, under 30 U.S.C. 201(b), or subject to the
Mineral Leasing Act for Acquired Lands, under 30 U.S.C. 351-360.
(2) Fair-market value of coal to be leased means the minimum amount
of a bid the Secretary is willing to accept in leasing coal within
leasing tracts offered in general lease sales or reserved and offered
for lease to public bodies, including Federal agencies, rural electric
cooperatives, or non-profit corporations controlled by any of such
entities, under 30 U.S.C. 201(a)(1) or 30 U.S.C. 351-360.
(3) Information means data, statistics, samples and other facts,
whether analyzed or processed or not, pertaining to Federal coal
resources.
(b) Applicability. This Appendix applies to the following categories
of information:
(1) Category A. Information provided to or obtained by a bureau
under 30 U.S.C. 201(b)(3) (and corresponding information under 30 U.S.C.
351-360) from the holder of an exploration license;
(2) Category B. Information acquired from commercial or other
sources under service contract with United States Geological Survey
(USGS) under 30 U.S.C. 208-1(b) (and corresponding information under 30
U.S.C. 351-360), and information developed by USGS under an exploratory
program authorized by 30 U.S.C. 208-1 (and corresponding information
under 30 U.S.C. 351-360);
(3) Category C. Information obtained from commercial sources which
the commercial source acquired while not under contract with the United
States Government;
(4) Category D. Information provided to the Secretary by a Federal
department or agency under 30 U.S.C. 208-1(e) (and corresponding
information under 30 U.S.C. 351-360); and
(5) Category E. The fair-market value of coal to be leased and
comments received by the Secretary with respect to such value.
(c) Availability of information. Information obtained by the
Department from various sources will be made available to the public as
follows:
(1) Category A--Information. Category A information must not be
disclosed to the public until after the areas to which the information
pertains have been leased by the Department, or until the Secretary
determines that release of the information to the public would not
damage the competitive position of the holder of the exploration
license, whichever comes first.
(2) Category B--Information. Category B information must not be
withheld from the public; it will be made available by means of and at
the time of open filing or publication by USGS.
[[Page 56]]
(3) Category C--Information. To the extent Category C information is
proprietary, such information must not be made available to the public
until after the areas to which the information pertains have been leased
by the Department.
(4) Category D--Information. To the extent Category D information is
proprietary, the Department will withhold the information from the
public for the length of time the department or agency providing the
information agreed to when it obtained the information.
(5) Category E--Information. Category E information must not be made
public until the lands to which the information pertains have been
leased, or until the Secretary has determined that its release prior to
the issuance of a lease is in the public interest.
[67 FR 64541, Oct. 21, 2002]
|
