Testimony by FLRA Employees and Production of Official Records in Legal Proceedings, 79024-79028 [E8-30299]

Agencies

• Federal Labor Relations Authority

[Federal Register Volume 73, Number 248 (Wednesday, December 24, 2008)]
[Proposed Rules]
[Pages 79024-79028]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-30299]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 73, No. 248 / Wednesday, December 24, 2008 / 
Proposed Rules

[[Page 79024]]



FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Parts 2411 and 2417


Testimony by FLRA Employees and Production of Official Records in 
Legal Proceedings

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: The Federal Labor Relations Authority (FLRA) seeks public 
comment on a proposed rule that would set out procedures for requesters 
to follow when making demands on or requests to an employee of the 
FLRA, the General Counsel of the FLRA (General Counsel) or the Federal 
Service Impasses Panel (Panel) to produce official records or provide 
testimony relating to official information in connection with a civil 
legal proceeding in which the FLRA is not named as a party. The rule 
would establish procedures to respond to such demands and requests in 
an orderly and consistent manner. The proposed rule will promote 
uniformity in decisions, protect confidential information, provide 
guidance to requesters, and reduce the potential for both inappropriate 
disclosures of official information and wasteful allocation of agency 
resources.

DATES: Comments must be received on or before January 23, 2009.

ADDRESSES: Mail or deliver comments to the Office of the Executive 
Director, Federal Labor Relations Authority, 1400 K Street, NW., Fourth 
Floor, Washington, DC 20424. Comments may also be e-mailed to 
FLRAexecutivedirector@flra.gov.

FOR FURTHER INFORMATION CONTACT: Rosa M. Koppel, 202-219-7907, 
Solicitor, at rkoppel@flra.gov.

SUPPLEMENTARY INFORMATION: The FLRA proposes to amend and relocate to a 
new Part 2417 current Sec.  2411.11. The current regulations prohibit 
employees from producing documents or giving testimony in response to a 
subpoena or other request without the written consent of the FLRA, the 
General Counsel or the Panel, as appropriate. Under the current 
regulations, any employee served with a subpoena or request who is not 
given the requisite written consent is instructed to move to have the 
subpoena invalidated ``on the ground that the evidence sought is 
privileged against disclosure by this rule.'' This approach incorrectly 
treats the regulations as though they create a privilege against 
disclosure.
    The FLRA proposes to amend the regulations to set out specific 
procedures that must be followed by persons who submit demands or 
requests for non-public FLRA information. The proposed new Part 2417 
also sets out factors that the FLRA will consider when deliberating on 
demands or requests for non-public FLRA information. Non-public 
information, as that term is used in this proposal, is information, 
confidential or otherwise, not available to the public pursuant to the 
Freedom of Information Act. Responding to such demands and requests may 
result in a significant disruption of an FLRA employee's work schedule 
and possibly involve the FLRA in issues unrelated to its 
responsibilities. In order to resolve these problems, many agencies 
have issued regulations, similar to the proposed regulations, governing 
the circumstances and manner in which an employee may respond to 
demands for testimony or for the production of documents. The United 
States Supreme Court upheld this type of regulation in United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).
    This rule applies to a range of matters in any civil legal 
proceeding in which the FLRA is not a named party. It also applies to 
former and current FLRA employees (as well as to FLRA consultants and 
advisors). Former FLRA employees are prohibited from testifying about 
specific matters for which they had responsibility during their active 
employment unless permitted to testify as provided in the regulations. 
They would not be prohibited from testifying about general matters 
unconnected with the specific FLRA matters for which they had 
responsibility.
    This rule will ensure a more efficient use of the FLRA's resources, 
minimize the possibility of involving the FLRA in issues unrelated to 
its responsibilities, promote uniformity in responding to such 
subpoenas and requests, and maintain the impartiality of the FLRA in 
matters that are in dispute between other parties. It will also serve 
the FLRA's interest in protecting sensitive, confidential, and 
privileged information and records that are generated in fulfillment of 
the FLRA's statutory responsibilities.
    The charges for witnesses are the same as those provided in Federal 
courts; and the fees related to production of records are the same as 
those charged under the FOIA. The charges for time spent by an employee 
to prepare for testimony and for searches, copying, and certification 
of records by the FLRA are authorized under 31 U.S.C. 9701, which 
permits an agency to charge for services or things of value that are 
provided by the agency.
    This rule is internal and procedural rather than substantive. It 
does not create a right to obtain official records or the official 
testimony of an FLRA employee nor does it create any additional right 
or privilege not already available to FLRA to deny any demand or 
request for testimony or documents. Failure to comply with the 
procedures set out in these regulations would be a basis for denying a 
demand or request submitted to the FLRA.

Regulatory Flexibility Act Certification

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the FLRA has determined that this regulation, as 
amended, will not have a significant impact on a substantial number of 
small entities.

Unfunded Mandates Reform Act of 1995

    This rule change will not result in the expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100,000,000 or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This action is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the

[[Page 79025]]

economy of $100,000,000 or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign-based companies in domestic and 
export markets.

Paperwork Reduction Act of 1995

    The amended regulations contain no additional information 
collection or recordkeeping requirements under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Parts 2411 and 2417

    Administrative practice and procedure; Government employees.

    For the reasons stated in the preamble, the Federal Labor Relations 
Authority proposes to amend 5 CFR part 2411 and add part 2417 as set 
forth below:

PART 2411--AVAILABILITY OF OFFICIAL INFORMATION

    1. The authority citation for part 2411 continues to read as 
follows:

    Authority: 5 U.S.C. 552.

    2. Section 2411.11 is removed.
    3. Section 2411.12 is redesignated as Sec.  2411.11.
    4. Part 2417 is added to read as follows:

PART 2417--TESTIMONY BY EMPLOYEES RELATING TO OFFICIAL INFORMATION 
AND PRODUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS

Subpart A--General Provisions
Sec.
2417.101 Scope and purpose.
2417.102 Applicability.
2417.103 Definitions.
Subpart B--Demands or Requests for Testimony and Production of 
Documents
2417.201 General prohibition.
2417.202 Factors to consider.
2417.203 Filing requirements for litigants seeking documents or 
testimony.
2417.204 Where to submit a request.
2417.205 Processing requests or demands.
2417.206 Final determinations.
2417.207 Restrictions that apply to testimony.
2417.208 Restrictions that apply to released records.
2417.209 Procedure when a decision is not made prior to the time a 
response is required.
2417.210 Procedure in the event of an adverse ruling.
Subpart C--Schedule of Fees
2417.301 Fees.
Subpart D--Penalties
2417.401 Penalties.

    Authority: 5 U.S.C. 7105; 31 U.S.C. 9701; 44 U.S.C. 3101-3107.

Subpart A--General Provisions


Sec.  2417.101  Scope and purpose.

    (a) These regulations establish policy, assign responsibilities and 
prescribe procedures with respect to:
    (1) The production or disclosure of official information or records 
by employees, members, advisors, and consultants of the Federal Labor 
Relations Authority, the General Counsel of the Federal Labor Relations 
Authority or the Federal Service Impasses Panel; and
    (2) the testimony of current and former employees, members, 
advisors, and consultants of the Authority, the General Counsel or the 
Panel relating to official information, official duties or official 
records, in connection with civil federal or state litigation in which 
the Authority, the General Counsel or the Panel is not a party.
    (b) The FLRA intends these provisions to:
    (1) Conserve the time of employees for conducting official 
business;
    (2) Minimize the involvement of employees in issues unrelated to 
the mission of the FLRA;
    (3) Maintain the impartiality of employees in disputes between 
private litigants; and
    (4) Protect sensitive, confidential information and the 
deliberative processes of the FLRA.
    (c) In providing for these requirements, the FLRA does not waive 
the sovereign immunity of the United States.
    (d) This part provides guidance for the internal operations of the 
FLRA. It does not create any right or benefit, substantive or 
procedural, that a party may rely upon in any legal proceeding against 
the United States.


Sec.  2417.102  Applicability.

    This part applies to demands and requests to current and former 
employees, members, advisors, and consultants for factual or expert 
testimony relating to official information or official duties or for 
production of official records or information, in civil legal 
proceedings in which the Authority, the General Counsel or the Panel is 
not a named party. This part does not apply to:
    (a) Demands upon or requests for an employee to testify as to facts 
or events that are unrelated to his or her official duties or that are 
unrelated to the functions of the Authority, the General Counsel or the 
Panel;
    (b) Demands upon or requests for a former employee to testify as to 
matters in which the former employee was not directly or materially 
involved while at the Authority, the General Counsel or the Panel;
    (c) Requests for the release of records under the Freedom of 
Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a;
    (d) Congressional demands and requests for testimony, records or 
information; or
    (e) Demands or requests for testimony, records or information by 
any Federal, state or local agency in furtherance of an ongoing 
investigation of possible violations of criminal law.


Sec.  2417.103  Definitions.

    The following definitions apply to this part.
    (a) Demand means an order, subpoena, or other command of a court or 
other competent authority for the production, disclosure, or release of 
records or for the appearance and testimony of an employee in a civil 
legal proceeding.
    (b) Legal proceeding means any matter before a court of law, 
administrative board or tribunal, commission, administrative law judge, 
hearing officer or other body that conducts a civil legal or 
administrative proceeding. Legal proceeding includes all phases of 
litigation.
    (c) Employee means:
    (i) Any current or former employee or member of the Authority, the 
General Counsel or the Federal Service Impasses Panel;
    (ii) Any other individual hired through contractual agreement by or 
on behalf of the Authority or who has performed or is performing 
services under such an agreement for the Authority; and
    (iii) Any individual who served or is serving in any consulting or 
advisory capacity to the Authority whether formal or informal.
    This definition does not include:
    Persons who are no longer employed by the Authority, the General 
Counsel or the Panel and who 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 with the 
Authority, the General Counsel or the Panel.
    (d) Records or official records and information means:
    All information in the custody and control of the Authority, the 
General Counsel or the Panel, relating to information in the custody 
and control thereof, or acquired by an employee

[[Page 79026]]

while in the performance of his or her official duties or because of 
his or her official status, while the individual was employed by or on 
behalf of the Authority, the General Counsel or the Panel.
    (e) Request means any informal request, by whatever method, for the 
production of records and information or for testimony which has not 
been ordered by a court or other competent authority
    (f) Testimony means any written or oral statements, including 
depositions, answers to interrogatories, affidavits, declarations, 
interviews, and statements made by an individual in connection with a 
legal proceeding.

Subpart B--Demands or Requests for Testimony and Production of 
Documents


Sec.  2417.201  General prohibition.

    No employee of the Authority, the General Counsel or the Panel may 
produce official records and information or provide any testimony 
relating to official information in response to a demand or request 
without the prior, written approval of the Chairman of the FLRA or the 
Chairman's designee.


Sec.  2417.202  Factors the FLRA will consider.

    The Chairman or the Chairman's designee, in his or her sole 
discretion, may grant an employee permission to testify on matters 
relating to official information, or produce official records and 
information, in response to a demand or request. Among the relevant 
factors that the Chairman may consider in making this decision are 
whether:
    (a) The purposes of this part are met;
    (b) Allowing such testimony or production of records would be 
necessary to prevent a miscarriage of justice;
    (c) Allowing such testimony or production of records would assist 
or hinder the FLRA in performing its statutory duties;
    (d) Allowing such testimony or production of records would be in 
the best interest of the FLRA;
    (e) The records or testimony can be obtained from other sources;
    (f) The demand or request is unduly burdensome or otherwise 
inappropriate under the applicable rules of discovery or the rules of 
procedure governing the case or matter in which the demand or request 
arose;
    (g) Disclosure would violate a statute, Executive Order or 
regulation;
    (h) Disclosure would reveal confidential, sensitive, or privileged 
information, trade secrets or similar, confidential or financial 
information, otherwise protected information, or information which 
would otherwise be inappropriate for release;
    (i) Disclosure would impede or interfere with an ongoing law 
enforcement investigation or proceeding, or compromise constitutional 
rights or national security interests;
    (j) Disclosure would result in the FLRA appearing to favor one 
litigant over another;
    (k) The request was served before the demand;
    (l) A substantial Government interest is implicated;
    (m) The demand or request is within the authority of the party 
making it; and
    (n) The demand or request is sufficiently specific to be answered.
    (o) Any other factor deemed relevant under the circumstances of the 
particular request.


Sec.  2417.203  Filing requirements for litigants seeking documents or 
testimony.

    A litigant must comply with the following requirements when filing 
a request for official records and information or testimony under part 
2417. A request should be filed before a demand.
    (a) The request must be in writing and must be submitted to the 
Office of the Solicitor;
    (b) The written request must contain the following information;
    (1) The caption of the legal proceeding, docket number, and name 
and address of the court or other authority involved;
    (2) 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;
    (3) 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;
    (4) A statement as to how the need for the information outweighs 
any need to maintain the confidentiality of the information and 
outweighs the burden on the FLRA to produce the records or provide 
testimony;
    (5) A statement indicating that the information sought is not 
available from another source, from other persons or entities or from 
the testimony of someone other than an employee, such as a retained 
expert;
    (6) If testimony is requested, the intended use of the testimony, 
and a showing that no document could be provided and used in lieu of 
testimony;
    (7) A description of all prior decisions, orders or pending motions 
in the case that bear upon the relevance of the requested records or 
testimony;
    (8) The name, address, and telephone number of counsel to each 
party in the case; and
    (9) An estimate of the amount of time that the requester and other 
parties will require for each employee for time spent by the employee 
to prepare for testimony, in travel, and for attendance in the legal 
proceeding.
    (c) The Office of the Solicitor reserves the right to require 
additional information to complete the request where appropriate.
    (d) The request should be submitted at least 30 days before the 
date that records or testimony is required. Requests submitted in less 
than 30 days before records or testimony is required must be 
accompanied by a written explanation stating the reasons for the late 
request and the reasons for expedited processing.
    (e) Failure to cooperate in good faith to enable the FLRA to make 
an informed decision may serve as the basis for a determination not to 
comply with the request.
    (f) The request should state that the requester will provide a copy 
of the employee's statement free of charge and that the requester will 
permit the FLRA to have a representative present during the employee's 
testimony.


Sec.  2417.204  Where to submit a request.

    (a) Requests or demands for official records or information or 
testimony under this part must be served on the Office of the Solicitor 
at the following address: Suite 201, 1400 K Street, NW., Washington, DC 
20424-0001; telephone: (202) 218-7999; fax: (202) 343-1007.
    The request must be sent by mail, fax, or e-mail and clearly marked 
``Part 2417 Request for Testimony or Official Records in Legal 
Proceedings.''
    (b) A person requesting public FLRA information and non-public FLRA 
information under this part may submit a combined request for both to 
the Office of the Solicitor. If a requester decides to submit a 
combined request under this section, the FLRA will process the combined 
request under this part and not under part 2411 (FOIA).


Sec.  2417.205  Consideration of requests or demands.

    (a) After receiving service of a request or demand for testimony, 
the FLRA will review the request and, in accordance with the provisions 
of this part, determine whether, or under what conditions, to authorize 
the employee to testify on matters relating to official information 
and/or produce official records and information.

[[Page 79027]]

    (b) Absent exigent circumstances, the FLRA will issue a 
determination within 30 days from the date the request is received.
    (c) The FLRA may grant a waiver of any procedure described by this 
part where a waiver is considered necessary to promote a significant 
interest of the FLRA or the United States or for other good cause.
    (d) Certification (authentication) of copies of records. The FLRA 
may certify that records are true copies in order to facilitate their 
use as evidence. If a requester seeks certification, the requester must 
request certified copies from the Solicitor at least 30 days before the 
date they will be needed.


Sec.  2417.206  Final determination.

    The Chairman of the FLRA, or the Chairman's designee, makes the 
final determination on demands or requests to employees thereof for 
production of official records and information or testimony in 
litigation in which the FLRA is not a party. All final determinations 
are within the sole discretion of the Chairman or the Chairman's 
designee. The Chairman or designee will notify the requester and, when 
appropriate, the court or other competent authority of the final 
determination, the reasons for the grant or denial of the request, and 
any conditions that may be imposed on the release of records or 
information, or on the testimony of an employee. This final 
determination exhausts administrative remedies for discovery of the 
information.


Sec.  2417.207  Restrictions that apply to testimony.

    (a) Conditions or restrictions may be imposed on the testimony of 
employees including, for example:
    (1) Limiting the areas of testimony;
    (2) Requiring the requester and other parties to the legal 
proceeding to agree that the transcript of the testimony will be kept 
under seal;
    (3) Requiring that the transcript will be used or made available 
only in the particular legal proceeding for which testimony was 
requested. The requester may also be required to provide a copy of the 
transcript of testimony at the requester's expense.
    (b) The employee's written declaration may be provided in lieu of 
testimony.
    (c) If authorized to testify pursuant to this part, an employee may 
testify as to facts within his or her personal knowledge, but, unless 
specifically authorized to do so by the Chairman or the Chairman's 
designee, the employee shall not:
    (1) Disclose confidential or privileged information; or
    (2) For a current employee, testify as an expert or opinion witness 
with regard to any matter arising out of the employee's official duties 
or the functions of the FLRA unless testimony is being given on behalf 
of the United States (see also 5 CFR 2635.805).
    (d) The scheduling of an employee's testimony, including the amount 
of time that the employee will be made available for testimony, will be 
subject to the approval of the Chairman or the Chairman's designee.


Sec.  2417.208  Restrictions that apply to released records.

    (a) The Chairman or the Chairman's designee may impose conditions 
or restrictions on the release of official records and information, 
including the requirement that parties to the proceeding obtain a 
protective order or execute a confidentiality agreement to limit access 
and any further disclosure. The terms of the protective order or of a 
confidentiality agreement must be acceptable to the Chairman or the 
Chairman's designee. In cases where protective orders or 
confidentiality agreements have already been executed, the Chairman or 
the Chairman's designee may condition the release of official records 
and information on an amendment to the existing protective order or 
confidentiality agreement.
    (b) If the Chairman or the Chairman's designee so determines, 
original records may be presented for examination in response to a 
request, but they may not be presented as evidence or otherwise used in 
a manner by which they could lose their identity as official records, 
nor may they be marked or altered. In lieu of the original records, 
certified copies may be presented for evidentiary purposes.


Sec.  2417.209  Procedure when a decision is not made prior to the time 
a response is required.

    If a response to a demand or request is required before the 
Chairman or the Chairman's designee can make the determination referred 
to in Sec.  2417.206, the Chairman or the Chairman's designee, when 
necessary, will provide the court or other competent authority with a 
copy of this part, inform the court or other competent authority that 
the request is being reviewed, provide an estimate as to when a 
decision will be made, and seek a stay of the demand or request pending 
a final determination.


Sec.  2417.210  Procedure in the event of an adverse ruling.

    If the court or other competent authority fails to stay a demand or 
request, the employee upon whom the demand or request is made, unless 
otherwise advised by the Chairman or the Chairman's designee, will 
appear, if necessary, at the stated time and place, produce a copy of 
this part, state that the employee has been advised by counsel not to 
provide the requested testimony or produce documents, and respectfully 
decline to comply with the demand or request, citing United States ex 
rel. Touhy v. Ragen, 340 U.S. 462 (1951).

Subpart C--Schedule of Fees


Sec.  2417.301  Fees.

    (a) Generally. The Chairman or the Chairman's designee may 
condition the production of records or appearance for testimony upon 
advance payment of a reasonable estimate of the costs thereto.
    (b) Fees for records. Fees for producing records will include fees 
for searching, reviewing, and duplicating records, costs of employee 
time spent in reviewing the request, and expenses generated by 
materials and equipment used to search for, produce, and copy the 
responsive information. These fees and costs will be calculated and 
charged as are like fees and costs arising from requests made pursuant 
to the Freedom of Information Act regulations in Part 2411.
    (c) Witness fees. Fees for attendance by a witness will include 
fees, expenses, and allowances prescribed by the court's rules. If no 
such fees are prescribed, witness fees will be determined based upon 
the rule of the Federal district court closest to the location where 
the witness will appear and on 28 U.S.C. 1821, as applicable. Such fees 
will include cost of time spent by the witness to prepare for 
testimony, in travel and for attendance in the legal proceeding, plus 
travel costs.
    (d) Payment of fees. A requester must pay witness fees for current 
employees and any record certification fees by submitting to the Office 
of the Solicitor a check or money order for the appropriate amount made 
payable to the Treasury of the United States. In the case of testimony 
of former employees, the requester must pay applicable fees directly to 
the former employee in accordance with 28 U.S.C. 1821 or other 
applicable statutes.
    (e) Waiver or reduction of fees. The Chairman or the Chairman's 
designee, in his or her sole discretion, may, upon a showing of 
reasonable cause, waive or reduce any fees in connection with the

[[Page 79028]]

testimony, production, or certification of records.
    (f) De minimis fees. Fees will not be assessed if the total charge 
would be $10.00 or less.

Subpart D--Penalties


Sec.  2417.401  Penalties.

    (a) An employee who discloses official records or information or 
gives testimony relating to official information, except as expressly 
authorized by the Chairman or the Chairman's designee, or as ordered by 
a Federal court after the FLRA has had the opportunity to be heard, may 
face the penalties provided in 18 U.S.C. 641 and other applicable laws. 
Additionally, former employees are subject to the restrictions and 
penalties of 18 U.S.C. 207 and 216.
    (b) A current employee who testifies or produces official records 
and information in violation of this part may be subject to 
disciplinary action.

    Dated: December 16, 2008.
Rosa M. Koppel,
Solicitor, Federal Labor Relations Authority.
[FR Doc. E8-30299 Filed 12-23-08; 8:45 am]
BILLING CODE 6727-01-P