Who Is Mr. Touhy, and What Does He Have to Do With My Subpoena?
| Jurisdiction | United States,Federal |
| Citation | Vol. 27 No. 6 Pg. 24 |
| Pages | 24 |
| Publication year | 2016 |
Elizabeth B. Partlow, J.
Plaintiff is a long-term employee of the U.S. Postal Service. She was injured at work, allegedly as a result of a malfunction of a piece of equipment manufactured by your client. Another Postal Service worker witnessed the accident and may have contributed to the cause of the accident. Yet another Postal Service worker completed the Postal Service Accident Report, which stated that there was no hazardous condition and that the accident was caused by inattention.
Plaintiff brings a product liability action against your client in federal court. You serve subpoenas for testimony of the two co-workers, a records subpoena on the records custodian of the Postal Service facility where Plaintiff works, and a subpoena to inspect the dock where the incident occurred.
The Postal Service objects to the subpoenas, citing its Touhy regulations and its determination that the requests are contrary to the interests of the Postal Service.[1]
What?
You have just run into the Postal Service's "housekeeping" or "Touhy" regulations, which govern, among other things, how a federal agency will respond to subpoenas for documents or testimony in a case in which the federal agency is not a party.
One of the oldest federal laws still on the books is the Federal Housekeeping Statute, 5 U.S.C. § 301, which since 1789 has authorized the head of a federal agency to prescribe regulations for the administration of the agency. Section 301 states as follows:
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.[2]
The Supreme Court first construed the statute in 1900, when it held that a federal revenue collector could not be held in contempt by a Kentucky state court for refusing to produce tax records in response to a state court subpoena.[3] The Court held that by prescribing regulations, the Secretary of the Treasury had validly taken from his subordinate, the revenue collector, all discretion as to whether to produce records.
In 1951, the Supreme Court issued its second opinion construing the statute, again in the context of a contempt citation.[4] Roger Touhy, an inmate in an Illinois prison, filed a habeas corpus action alleging his conviction had been obtained by fraud. Touhy subpoenaed documents from the agent in charge of the FBI's Chicago field office. The FBI agent refused to comply, citing Justice Department regulations that prohibited FBI employees from producing records without the Attorney General's approval. The district court held the FBI agent in contempt, but the Supreme Court overturned the contempt citation. The Court ruled that because the Attorney General could validly withdraw from his subordinates the power to release department papers, a subordinate who invoked the Attorney General's regulation in refusing to respond to a subpoena duces tecum could not be held in contempt. In his concurrence, Justice Frankfurter noted that the Court did not have before it the question of whether the Attorney General himself were immune from the duty to disclose documents in response to a subpoena.
Despite the Court's narrow holding in Touhy, executive agencies relied on the case to adopt expansive regulations purporting to give them authority to refuse to comply with court subpoenas. These regulations generally require agency employees who receive subpoenas to decline to disclose information unless their agency gives them permission to do so. Most of the regulations require a person to explain which records or testimony he wants, why the federal records or testimony is relevant to his case, and why the records or testimony cannot be obtained from some other source. The agency then decides whether providing the records or allowing the testimony is in the best interest of the agency.
Not surprisingly, agencies routinely object to supplying documents or to providing testimony in response to a subpoena. This article discusses some considerations for meeting an agency's objections or responding to an agency's motion to quash.
1. Consider whether your subpoena can be directed to the agency itself.
Although agencies frequently assert that their Touhy regulations apply to requests directed to the...
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