Chapter 9B An Introduction to Federal Agency "Touhy" Regulations
| Jurisdiction | United States |
MICHAEL P. GLEASON is a Senior Assistant Regional Counsel at the U.S. Environmental Protection Agency, Region 8 Office in Denver, Colorado. Michael has worked in the Region 8 Office of Regional Counsel since 2001, practicing in general law areas including ethics, labor & employment, grants, appropriations, contracts and other general law areas. Prior to joining the EPA, Michael worked in private practice as a labor and employment attorney at firms in Denver and Chicago. He graduated from the University of Notre Dame with a B.A. degree and from Notre Dame Law School with a J.D. degree. He lives south of Denver with his wife and teenage daughter and son.
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An Introduction to Federal Agency "Touhy" Regulations
Federal agency decisions or actions concerning natural resources or the environment often result in disputes or litigation among parties affected by the decisions. For example, potentially responsible parties at a Superfund site may sue each other to obtain contribution or equitable allocation of cleanup costs. Or a private citizen may sue a company for injuries caused by drinking water contamination at a regulated site. In such cases, a party may seek testimony or documents through a request or a subpoena from non-party agency employees about investigations or decisions relating to the site. Or, in some cases, a litigant may seek helpful testimony from an agency scientist or other widely recognized federal expert in a case that has no connection to agency matters. Unbeknownst to many attorneys practicing in these areas, federal agencies follow unique regulations and corresponding procedures designed to help the agencies evaluate such requests and whether to comply with them. This paper is a brief introduction to such regulations - commonly known as "Touhy" regulations. This paper focuses specifically on the U.S. Environmental Protection Agency's ("EPA" or "Agency") regulations, although many federal agencies have similar versions.
1. Background
The "Housekeeping" statute, 5 U.S.C. § 301, allows federal agencies to prescribe regulations regarding the "the conduct of [their] employees ... and the custody, use, and preservation of [agency] records, papers, and property." Pursuant to this authority, many agencies, including the EPA, have promulgated regulations prohibiting the unauthorized release of information by agency employees in certain court or administrative proceedings without first obtaining approval through a centralized decision-making process. An unauthorized release of information could occur through testimony or by production of documents, either voluntarily or in response to subpoenas. The EPA's regulations apply to proceedings in which the United States is not a party and set forth procedures and standards for evaluating requests for testimony and/or the production of documents by EPA employees.1
These regulations are commonly known as "Touhy" regulations after the Supreme Court case that upheld their validity, United States ex rel. Touhy v. Ragen.2 Roger Touhy brought a habeas corpus proceeding against the warden of the Illinois State Penitentiary after being convicted of kidnapping. Mr. Touhy's attorney issued a subpoena duces tecum on an FBI agent requiring the production of records which Mr. Touhy claimed contained evidence establishing that his conviction was brought about by fraud. In response to the subpoena, the FBI agent appeared at court. Following regulations issued by the Attorney General, the FBI agent declined
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to produce the records and the court held him in contempt. On appeal, the Supreme Court affirmed reversal of the contempt holding and further held that the regulations were valid, finding that "[w]hen one considers the variety of information contained in the files of any government department and the possibilities of harm from unrestricted disclosure in court, the usefulness, indeed the necessity, of centralizing determination as to whether subpoenas duces tecum will be willingly obeyed or challenged is obvious."3 Following the Touhy case, numerous federal agencies issued "Touhy" regulations that have been upheld by courts across the country.4
The EPA issued its Touhy regulations in 1985 and explained the need for them in the preamble to the rule:
EPA employees are frequently requested or subpoenaed to provide testimony or produce documents in litigation to which the United States is not a party. EPA employees are presently required to respond to valid subpoenas, thereby preventing them from performing their duties and creating the appearance that the Agency is taking sides in private litigation. This regulation is intended to address this problem by prohibiting both voluntary appearances and compliance with subpoenas except where clearly in the interests of the Agency.5
As further stated in the regulations:
The purpose of this subpart is to ensure that employees' official time is used only for official purposes, to maintain the impartiality of EPA among private litigants, to ensure that public funds are not used for private purposes and to establish procedures for approving testimony or production of documents when clearly in the interests of EPA.6
2. Scope of the EPA's Touhy Regulations
The first section of the EPA's Touhy regulations set forth the coverage and scope of their application. First and foremost, the regulations apply when the United States is not a party to an action and when an EPA employee is requested or subpoenaed to provide testimony or documents concerning "information acquired in the course of performing official duties or because of the employee's official status."7 Although such requests and subpoenas typically are directed at specific employees, the EPA views them as essentially directed at the Agency.
In defining covered proceedings, the regulations state:
(a) These procedures apply to:
(1) State court proceedings (including grand jury proceedings);
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...(2) Federal civil proceedings, except where the United States, EPA or another Federal agency is a party; and(b) These procedures do not apply:
(3) State and local legislative and administrative proceedings.
(1) To matters which are not related to EPA;
(2) To Congressional requests or subpoenas for testimony or documents;
(3) Where employees provide
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