81 FR 63361 - Testimony by FLRA Employees and Production of Official Records in Legal Proceedings

FEDERAL LABOR RELATIONS AUTHORITY

Federal Register Volume 81, Issue 179 (September 15, 2016)

The Federal Labor Relations Authority (FLRA) amends its procedures for requesters to follow when making requests to or demands on an employee of the FLRA's three-member Authority component (Authority), the Office of the General Counsel, or the Federal Service Impasses Panel (Panel) to produce official records or provide testimony relating to official information in connection with a legal proceeding. Specifically, the amendments expand the regulation's definition of ``legal proceeding'' to include matters in which the FLRA is a party. The amendments additionally delegate decision-making responsibility to the heads of each of the three components, depending on where the information is located, to ensure that responses to such requests or demands are handled in an orderly, efficient, and consistent manner. The amended procedures will better protect confidential information, provide guidance to requesters and FLRA employees, and reduce the potential for both inappropriate disclosures of official information and wasteful allocation of FLRA resources.

[Federal Register Volume 81, Number 179 (Thursday, September 15, 2016)]
[Rules and Regulations]
[Pages 63361-63365]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-21427]



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Federal Register / Vol. 81, No. 179 / Thursday, September 15, 2016 / 
Rules and Regulations

[[Page 63361]]



FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2417


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

AGENCY: Federal Labor Relations Authority.

ACTION: Final rule.

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

SUMMARY: The Federal Labor Relations Authority (FLRA) amends its 
procedures for requesters to follow when making requests to or demands 
on an employee of the FLRA's three-member Authority component 
(Authority), the Office of the General Counsel, or the Federal Service 
Impasses Panel (Panel) to produce official records or provide testimony 
relating to official information in connection with a legal proceeding. 
Specifically, the amendments expand the regulation's definition of 
``legal proceeding'' to include matters in which the FLRA is a party. 
The amendments additionally delegate decision-making responsibility to 
the heads of each of the three components, depending on where the 
information is located, to ensure that responses to such requests or 
demands are handled in an orderly, efficient, and consistent manner. 
The amended procedures will better protect confidential information, 
provide guidance to requesters and FLRA employees, and reduce the 
potential for both inappropriate disclosures of official information 
and wasteful allocation of FLRA resources.

DATES: Effective September 15, 2016.

FOR FURTHER INFORMATION CONTACT: Fred B. Jacob, Solicitor, Federal 
Labor Relations Authority, 1400 K Street NW., Washington, DC 20424; 
(202) 218-7999; fax: (202) 343-1007; or email: [email protected].

SUPPLEMENTARY INFORMATION: The FLRA is amending 5 CFR part 2417. Before 
part 2417's promulgation in March 2009, 5 CFR 2411.11 prohibited FLRA 
employees from producing documents or giving testimony in response to a 
subpoena or other request or demand in any civil proceeding without the 
written consent of the Chairman of the FLRA, the General Counsel, or 
the Chairman of the Panel, as appropriate. Under the prior version of 
Sec.  2411.11, any employee served with a subpoena or request or demand 
who was not given the requisite written consent was instructed to move 
to have the subpoena invalidated ``on the ground that the evidence 
sought is privileged against disclosure by this rule.'' Part 2417 
eliminated the assertion of privilege and, in its place, established 
factors for the FLRA to evaluate when considering requests or demands 
for non-public FLRA information. It also placed decision-making 
authority exclusively with the Chairman of the FLRA or his or her 
designated representative.
    As described above, the FLRA is amending the regulations to include 
requests or demands for production of documents or testimony in legal 
proceedings in which the FLRA is a named party. This is consistent with 
the FLRA's prior regulations and other agencies' regulations. The FLRA 
is also amending the regulations to vest decision-making authority over 
such requests or demands to the Chairman of the FLRA, the General 
Counsel, or the Chairman of the Panel, as appropriate, or to his or her 
designee. The FLRA has additionally included some minor non-substantive 
changes to correct typographical errors and to make small stylistic 
adjustments for clarification.
    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, and maintain the impartiality of the FLRA in 
matters that are in dispute between other parties. It will also 
continue to 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.
    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 the FLRA to deny any request or 
demand for testimony or documents. Failure to comply with the 
procedures set out in these regulations would be a basis for denying a 
request or demand 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, 5 U.S.C. 
804. This rule will not result in an annual effect on the 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 record-keeping requirements under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq.

Public Participation

    This rule is published as a final rule. It is exempt from public 
comment, pursuant to 5 U.S.C. 553(b)(A), as a rule of ``agency 
organization, procedure, or practice.''

List of Subjects in 5 CFR Part 2417

    Administrative practice and procedure, Government employees.


[[Page 63362]]


    For the reasons stated in the preamble, the Federal Labor Relations 
Authority amends 5 CFR part 2417 as set forth below:

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

0
1. The authority citation for part 2417 continues to read as follows:

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

Subpart A--General Provisions

0
2. Amend Sec.  2417.101 by revising paragraphs (a)(1) and (2), (b)(1), 
(2), (3), and (4), and (d) to read as follows:


Sec.  2417.101  Scope and purpose.

    (a) * * *
    (1) The production or disclosure of official information or records 
by employees, members, advisors, and consultants of the Federal Labor 
Relations Authority's (FLRA's) three-Member Authority component (the 
Authority), the Office of the General Counsel(the General Counsel), or 
the Federal Service Impasses Panel (the 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 a legal proceeding on behalf of any party 
to a cause pending in civil federal or state litigation, including any 
proceeding before the FLRA or any other board, commission, or 
administrative agency of the United States.
    (b) * * *
    (1) Conserve employees' time for conducting official business;
    (2) Minimize employees' involvement in issues unrelated to the 
FLRA's mission;
    (3) Maintain employees' impartiality in disputes between private 
litigants; and
    (4) Protect sensitive, confidential information and the integrity 
of the FLRA's administrative and deliberative processes.
* * * * *
    (d) This part provides guidance for the FLRA's internal operations. 
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.

0
3. Amend Sec.  2417.102 by revising the introductory text and 
paragraphs (a), (b), (d), and (e) to read as follows:


Sec.  2417.102  Applicability.

    This part applies to requests and demands 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. This part does not apply to:
    (a) Requests for or demands upon 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) Requests for or demands upon 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;
* * * * *
    (d) Congressional requests and demands for testimony, records, or 
information; or
    (e) Requests or demands for testimony, records, or information by 
any Federal, state, or local agency in furtherance of an ongoing 
investigation of possible violations of criminal law.

0
4. Revise Sec.  2417.103 to read as follows:


Sec.  2417.103  Definitions.

    The following definitions apply to this part:
    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.
    Employee means:
    (1)(i) Any current or former employee or member of the Authority, 
the General Counsel, or the Panel;
    (ii) Any other individual hired through contractual agreement by or 
on behalf of the Authority, the General Counsel, or the Panel, or who 
has performed or is performing services under such an agreement for the 
Authority, the General Counsel, or the Panel; and
    (iii) Any individual who served or is serving in any consulting or 
advisory capacity to the Authority, the General Counsel, or the Panel, 
whether formal or informal.
    (2) This definition does not include former FLRA employees 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 FLRA.
    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.
    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 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.
    Request means any request, by whatever method, for the production 
of records and information or for testimony that has not been ordered 
by a court or other competent authority.
    Requester means anyone who makes a request or demand under this 
part upon the FLRA.
    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.

0
5. Revise the heading for subpart B to read as follows:

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

0
6. Revise Sec.  2417.201 to read as follows:


Sec.  2417.201  General prohibition and designation of the appropriate 
decision-maker.

    (a) General prohibition. No employee or former 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 request or demand without the prior, 
written approval of the Chairman of the FLRA, the General Counsel, or 
the Chairman of the Panel, as appropriate.
    (b) Appropriate decision-maker. (1) The Chairman of the FLRA, or 
his or her designee, determines whether to grant approval if the record 
requested or demanded is maintained by the FLRA's Authority component, 
or the person who is the subject of the request or demand is subject to 
the supervision or control of the FLRA's Authority component or was 
subject to such supervision or control when formerly employed at the 
FLRA.
    (2) The General Counsel, or his or her designee, determines whether 
to grant

[[Page 63363]]

approval if the record requested or demanded is maintained by the 
General Counsel, or the person who is the subject of the request or 
demand is subject to the supervision or control of the General Counsel 
or was subject to such supervision or control when formerly employed at 
the FLRA.
    (3) The Chairman of the Panel, or his or her designee, determines 
whether to grant approval if the record requested or demanded is 
maintained by the Panel, or the person who is the subject of the 
request or demand is subject to the supervision or control of the Panel 
or was subject to such supervision or control when formerly employed at 
the FLRA.

0
7. Amend Sec.  2417.202 by revising the section heading, introductory 
text, and paragraphs (f), (h), (i), (m), (n), and (o) to read as 
follows:


Sec.  2417.202  Factors that the decision-maker will consider.

    The Chairman of the FLRA, the General Counsel, or the Chairman of 
the Panel, as appropriate, 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 request or demand. Among the relevant factors that the Chairman of 
the FLRA, the General Counsel, or the Chairman of the Panel may 
consider in making this decision are whether:
* * * * *
    (f) The request or demand 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 request or demand 
arose;
* * * * *
    (h) Disclosure would reveal confidential, sensitive, or privileged 
information; trade secrets or similar, confidential or financial 
information; otherwise protected information; or information that 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;
* * * * *
    (m) The request or demand is within the authority of the party 
making it;
    (n) The request or demand is sufficiently specific to be answered; 
and
    (o) Any other factor deemed relevant under the circumstances of the 
particular request or demand.

0
8. Amend Sec.  2417.203 by revising the introductory text and 
paragraphs (a), (b) introductory text, (b)(4), (5), (6), (7), and (9), 
(c), (d), (e), and (f) to read as follows:


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

    A requester must comply with the following requirements when filing 
a request or demand for official records and information or testimony 
under part 2417. Requesters should file a request before a demand.
    (a) The request or demand must be in writing and must be submitted 
to the FLRA's Office of the Solicitor.
    (b) The written request or demand must contain the following 
information:
* * * * *
    (4) A statement as to how the need for the information outweighs 
any need to maintain the confidentiality of the information and 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 sought, 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;
* * * * *
    (9) An estimate of the amount of time that the requester and other 
parties will require for each employee to prepare for testimony, to 
travel to the legal proceeding, and to attend the legal proceeding.
    (c) The Office of the Solicitor reserves the right to require 
additional information to complete the request, where appropriate.
    (d) Requesters should submit their request or demand at least 30 
days before the date that records or testimony are required. Requests 
or demands submitted fewer than 30 days before records or testimony are 
required must be accompanied by a written explanation stating the 
reasons for the late request or demand and the reasons that would 
justify 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 or demand.
    (f) The request or demand should state that the requester will 
provide a copy of the employee's statement at the expense of the 
requester and that the requester will permit the FLRA to have a 
representative present during the employee's testimony.

0
9. Revise Sec.  2417.204 to read as follows:


Sec.  2417.204  Where to submit a request or demand.

    (a) Requests or demands for official records, information, or 
testimony under this part must be served on the Office of the Solicitor 
at the following address: Office of the Solicitor, Federal Labor 
Relations Authority, 1400 K Street NW., Suite 201, Washington, DC 
20424-0001; telephone: (202) 218-7999; fax: (202) 343-1007; or email: 
[email protected]. The request or demand must be sent by mail, fax, or 
email 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 (the FLRA's Freedom of 
Information Act regulations).

0
10. Revise Sec.  2417.205 to read as follows:


Sec.  2417.205  Consideration of requests or demands.

    (a) After receiving service of a request or a demand for official 
records, information, or testimony, the appropriate decision-maker 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.
    (b) Absent exigent circumstances, the appropriate decision-maker 
will issue a determination within 30 days from the date that it 
receives the request.
    (c) The appropriate decision-maker 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) 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 Office of the 
Solicitor at least 30 days before the date that they will be needed.

0
11. Revise Sec.  2417.206 to read as follows:

[[Page 63364]]

Sec.  2417.206  Final determination.

    The Chairman of the FLRA, the General Counsel, or the Chairman of 
the Panel, as appropriate, makes the final determination on demands or 
requests to employees thereof for production of official records and 
information or testimony in civil litigation under this part. All final 
determinations are within the sole discretion of the Chairman of the 
FLRA, the General Counsel, or the Chairman of the Panel, as 
appropriate. The appropriate decision-maker 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.

0
12. Amend Sec.  2417.207 by revising paragraphs (c) introductory text, 
(c)(2), and (d) to read as follows:


Sec.  2417.207  Restrictions that apply to 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 of the FLRA, the 
General Counsel, or the Chairman of the Panel, as appropriate, the 
employee shall not:
* * * * *
    (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 of the FLRA, the General 
Counsel, or the Chairman of the Panel, as appropriate.

0
13. Revise Sec.  2417.208 to read as follows:


Sec.  2417.208  Restrictions that apply to released records.

    (a) The Chairman of the FLRA, the General Counsel, or the Chairman 
of the Panel, as appropriate 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 of the FLRA, the General 
Counsel, or the Chairman of the Panel, as appropriate. In cases where 
protective orders or confidentiality agreements have already been 
executed, the Chairman of the FLRA, the General Counsel, or the 
Chairman of the Panel, as appropriate may condition the release of 
official records and information on an amendment to the existing 
protective order or confidentiality agreement.
    (b) If the Chairman of the FLRA, the General Counsel, or the 
Chairman of the Panel, as appropriate 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.

0
14. Revise Sec.  2417.209 to read as follows:


Sec.  2417.209  Procedure when a decision is not made before the time 
that a response is required.

    If a response to a demand or request is required before the 
Chairman of the FLRA, the General Counsel, or the Chairman of the Panel 
can make the determination referred to in Sec.  2417.206, the Chairman 
of the FLRA, the General Counsel, or the Chairman of the Panel, 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.

0
15. Revise Sec.  2417.210 to read as follows:


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 of the FLRA, the General Counsel, or 
the Chairman of the Panel, as appropriate, 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

0
16. Revise Sec.  2417.301 to read as follows:


Sec.  2417.301  Fees.

    (a) Generally. The Chairman of the FLRA, the General Counsel, or 
the Chairman of the Panel, as appropriate, may condition the production 
of records or appearance for testimony upon advance payment of a 
reasonable estimate of the costs.
    (b) Fees for records. Fees for producing records will include fees 
for searching, reviewing, and duplicating records; costs for employee 
time spent reviewing the request; and expenses generated by materials 
and equipment used to search for, produce, and copy the responsive 
information. The FLRA will calculate and charge these fees, costs, and 
expenses as it charges like fees and costs arising from requests made 
pursuant to the Freedom of Information Act regulations in part 2411 of 
this chapter.
    (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 costs for time spent by the witness to prepare for 
testimony, to travel to the legal proceeding, and to attend the legal 
proceeding.
    (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 of the FLRA, the 
General Counsel, or the Chairman of the Panel, as appropriate, in his 
or her sole discretion, may, upon a showing of reasonable cause, waive 
or reduce any fees in connection with the testimony, production, or 
certification of records.
    (f) De minimis fees. The FLRA will not assess fees if the total 
charge would be $10.00 or less.

Subpart D--Penalties

0
17. Amend Sec.  2417.401 by revising paragraph (a) to read as follows:

[[Page 63365]]

Sec.  2417.401  Penalties.

    (a) An employee who discloses official records or information, or 
who gives testimony relating to official information, except as 
expressly authorized by the Chairman of the FLRA, the General Counsel, 
or the Chairman of the Panel, as appropriate, 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.
* * * * *

    Dated: September 1, 2016.
Carol Waller Pope,
Chairman.
[FR Doc. 2016-21427 Filed 9-14-16; 8:45 am]
 BILLING CODE P