Subpoenaing Federal Government Witnesses and Documents: an Overview of Touhy Regulations

• Publication year: 2004
• Pages: 49

33 Colo.Law. 49 Colorado Lawyer 2004.

2004, March, Pg. 49. Subpoenaing Federal Government Witnesses and Documents: An Overview of Touhy Regulations

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49

Vol. 33, No. 3, Pg. 49

The Colorado Lawyer
March 2004
Vol. 33, No. 3 [Page 49]

Specialty Law Columns
The Civil Litigator
Subpoenaing Federal Government Witnesses and Documents: An Overview of Touhy Regulations
by Mark S. Pestal

The Civil Litigator column addresses issues of importance and interest to litigators and trial lawyers practicing in Colorado courts. The Civil Litigator is published six times a year

Column Editor

Richard L. Gabriel of Holme Roberts & Owen llp, Denver - (303) 861-7000, richard.gabriel@hro.com

This month's article was written by Mark S. Pestal Denver, an Assistant U.S. Attorney in the Civil Division of the U.S. Attorney's Office - (303) 454-0100, mark.pestal@ usdoj.gov. Jared Z. Crain, formerly a legal intern for the U.S. Attorney's Office, assisted with the preparation of this article.

Litigants may subpoena testimony and documents from federal government employees in cases where the government is not a party to the litigation. However, the subpoena will be quashed unless the litigant follows specific procedures, as outlined in this article.

Of all the headaches of litigation, a "no-show" witness ranks at the top. Fortunately, most witnesses appear when served with a subpoena. However, when a federal employee is called to testify about matters relating to his or her official duties or to produce documents, a subpoena alone will not guarantee an appearance.

Under federal law, before a federal employee may testify or produce documents in a case in which the federal government is not a party, the testimony and document release must be appropriately authorized by that employee's agency.1 Without such authorization, a federal or state court subpoena will be quashed. Nonetheless, the authorization process often is ignored by counsel, resulting in needless frustration and, more important, denied access to potentially critical evidence.

The authorization process is governed by so-called Touhy (pronounced "two-ee") regulations, which most federal agencies have promulgated to regulate testimony and access to documents. Particular disclosure decisions are, in turn, controlled by specific regulations promulgated by the agency from which the information is sought.

This article provides an instructive overview of the historical authority for this limitation on a court's subpoena power. It also discusses the practical steps to securing disclosure under Touhy regulations. Finally, the article gives a practical example of how to facilitate compliance.

History of Touhy

Regulations

Although Touhy regulations get their name from a 1951 Supreme Court decision, United States ex rel. Touhy v. Ragen,2 they have a much longer history. Touhy regulations derive from a statute enacted during the presidency of George Washington. The statute was first codified in 1875 and currently is found at 5 U.S.C. § 301. This law has come to be known as the "housekeeping statute." It was enacted to "help General Washington get his administration underway by spelling out the authority for executive officials to set up offices and file government documents.3 The housekeeping statute states:

The Head of an Executive department or military department may prescribe 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. This section does not authorize withholding information from the public or limiting the availability of records to the public.4

Most government agencies, under their statutory authority to control the conduct of their employees and "the custody, use and preservation" of their records, papers, and property, have promulgated regulations governing the circumstances and manner in which agency employees may respond to demands for testimony or production of documents. The validity of these regulations consistently has been upheld in court, as the following U.S. Supreme Court cases illustrate.5

The Supreme Court first addressed the issue in 1900, in Boske v. Comingore.6 In Boske, a Kentucky trial court held an Internal Revenue Service ("IRS") officer in contempt for refusing to produce tax records during his deposition. The officer challenged the contempt order on the ground that producing the documents was prohibited by an IRS regulation. The Supreme Court held that the IRS regulation was valid under the housekeeping statute and that the employee could not, therefore, be held in contempt, because compliance with the court's order would have required a violation of the regulation.7

In 1951, the Supreme Court came to practically the same conclusion in the case that gives the name to Touhy regulations. In Touhy,8 a prisoner in an Illinois state penitentiary instituted a federal habeas corpus proceeding against the prison warden. The prisoner alleged that he was being held in violation of the Due Process Clause of the U.S. Constitution. In an effort to prove his case, the prisoner subpoenaed documents and testimony from a Federal Bureau of Investigation ("FBI") agent. The FBI agent informed his superiors of the request and was ordered not to produce the evidence because it was privileged.

When the agent, following the instructions of the FBI agency chief, refused to comply with the subpoena duces tecum, the district court held him in contempt. On appeal, the Seventh Circuit Court reversed. The U.S. Supreme Court, following its ruling in Boske, affirmed the appellate court's reversal The Court held that, when the head of an executive agency acts under authority of the housekeeping statute and orders a subordinate not to comply with a subpoena, the subordinate may not be held in contempt of court.9 The protection afforded...