Touhy Requests

United States Department of the Interior

 

BUREAU OF LAND MANAGEMENT

Arizona State Office

One North Central Avenue, Suite 800

Phoenix, Arizona  85004-4427

March 17, 2017

 

In Reply Refer To:

1872/1278 (952) P

 

 

EMS TRANSMISSION 3/21/2017

Permanent Instruction Memorandum No. AZ-P-IM-2017-006

 

To:            All Employees

 

From:        State Director

 

Subject:     Touhy Requests

 

Purpose:  This Instruction Memorandum (IM) provides procedures to follow when employees are served with a subpoena or a Touhy Request (pronounced “too-ee” and named after a 1951 U.S. Supreme Court case) that seeks testimony or production of official records related to litigation in which the United States is not a party.  The Touhy case, implemented at 43 C.F.R. §§ 2.280 through 2.290 (Attachment 1), allows the U.S. Department of the Interior (DOI) to require certain specific information necessary to determining whether to grant such requests, for example, the relevance of desired testimony or records to the proceedings, the identity of parties to the proceeding, and any known relationships that parties have to the DOI’s mission or programs.  Requesters also must provide a statement of their willingness to pay costs associated with granting the request, including travel expenses for employees to testify and record production expenses.

 

Policy/Action:  No Bureau of Land Management (BLM) employee in Arizona may testify or produce records for any legal proceeding in which the United States is not a party unless specifically authorized by the State Director.  From time to time, employees are served with subpoenas or Touhy Requests requiring them either to testify or to produce agency documents for use in litigation.  When an employee receives a subpoena or a Touhy Request, that employee immediately must notify their supervisor, then scan and email a copy of the request to the State Litigation Coordinator.  The State Litigation Coordinator will provide a copy of the request to the State Director’s Office and the appropriate Deputy State Director or District Manager.  In addition, the State Litigation Coordinator will provide a copy of the request to the Office of the Solicitor’s Phoenix Field Office (Solicitor’s Office).  The Solicitor’s Office will correspond directly with the requester preliminarily as necessary.

 

Upon receipt of a Touhy Request that fully complies with the Touhy regulations, the Solicitor’s Office will consult with and provide a recommendation to the State Director, who will decide whether to grant or deny the Touhy Request (in accordance with § 2.287(a) and BLM Manual 1203, Delegation of Authority, Subject Codes 1823 and1872).  The Solicitor’s Office then will notify the requester in writing of the State Director’s decision.  Employees must not respond to requesters, unless advised to do so by the Solicitor’s Office.

 

Timeframe:  This policy is effective immediately and supersedes IM No. AZ-2013-030.

 

Budget Impact:  This IM will have no budget impact.

 

Background:  The DOI’s general policy is not to allow employees to testify or produce DOI records, except for requests from Congress or requests associated with:

However, the DOI will consider whether to allow testimony or production of records in certain other legal proceedings.  The DOI regulations for obtaining employee testimony or production of records in those proceedings are at §§ 2.280 through 2.290, which explain in detail the relevant requirements.  Alternatively, requests for agency records can be made pursuant to the Freedom of Information Act.

 

Manual/Handbook Section Affected:  This update serves as additional guidance to BLM Manual 1278 - External Access to BLM Information, until updated further.

 

Coordination:  This IM has been coordinated with the Solicitor’s Office.

 

Contact:  Questions about this IM may be addressed to Ana Troncoso, State Litigation Coordinator, at 602-417-9542, or via email at atroncosomontgomery@blm.gov.

 

1 Attachment:

1 - 43 CFR Part 2, Subpart L, §§ 2.280 through 2.290 (9 pp)