**§14.807 Procedure when demand or request is made.**

\(a\) VA personnel upon whom a demand or request for testimony or the
production of records in connection with legal proceedings as defined in
§14.802(d) is made shall notify the head of his or her field station, or
if in Central Office, the head of the component for which he or she
works. The field station or Central Office component shall notify the
responsible VA official designated in §14.807(b).

\(b\) In response to a demand or request for the production of records
or the testimony of VA personnel, other than personnel in the Office of
the Inspector General (OIG), as witnesses in legal proceedings covered
by these regulations, the General Counsel, the Regional Counsel, an
attorney in the Office of General Counsel designated by the General
Counsel, or an attorney in the Regional Counsel office designated by the
Regional Counsel is the responsible VA official authorized to determine
whether VA personnel may be interviewed, contacted or used as witnesses,
including used as expert witnesses, and whether VA records may be
produced; and what, if any, conditions will be imposed upon such
interview, contact, testimony or production of records. For personnel in
the OIG, the Counselor to the Inspector General or an attorney
designated by the Counselor to the Inspector General, is the responsible
VA official authorized to make the determinations provided in §14.807,
and that official will keep the General Counsel informed of such
determinations for purposes of litigation or claims of privilege.

\(c\) In appropriate cases, the responsible VA official shall promptly
notify the Department of Justice of the demand or request. After
consultation and coordination with the Department of Justice, as
required, and after any necessary consultation with the VA component
which employs or employed the VA personnel whose testimony is sought or
which is responsible for the maintenance of the records sought, the VA
official shall determine in writing whether the individual is required
to comply with the demand or request and shall notify the requester or
the court or other authority of the determination reached where the
determination is that VA will not comply fully with the request or
demand. The responsible VA official shall give notice of the decision to
other persons as circumstances may warrant. Oral approval may be
granted, and a record of such approval made and retained in accordance
with the procedures in §14.807(f) concerning oral requests or demands.

\(d\) If, after VA personnel have received a request or demand in a
legal proceeding and have notified the responsible VA official in
accordance with this section, a response to the request or demand is
required before instructions from the responsible official are received,
the responsible official designated in paragraph (b) of this section
shall furnish the requester or the court or other authority with a copy
of §§14.800 through 14.810 and any other relevant documentation, inform
the requester or the court or other authority that the request or demand
is being reviewed, and seek a stay of the request or demand pending a
final determination by the VA official concerned.

\(e\) If a court of competent jurisdiction or other appropriate
authority declines to stay the effect of the demand or request in
response to action taken pursuant to §14.807(d), or if such court or
other authority orders that the demand or request be complied with
notwithstanding the final decision of the appropriate VA official, the
VA personnel upon whom the demand or request was made shall notify the
responsible VA official of such ruling or order. If the responsible VA
official determines that no further legal review of or challenge to the
ruling or order will be sought, the affected VA personnel shall comply
with the demand, order or request. If directed by the appropriate VA
official after consultation with the appropriate United States
Attorney's office, however, the affected VA personnel shall respectfully
decline to comply with the demand, request or order. See *United States
ex rel. Touhy v. Ragen*, 340 U.S. 462 (1951).

\(f\) Normally, written demands or requests allowing reasonable lead
time for evaluation and processing are required. However, in emergency
situations where response time is limited and a written demand or
request is impractical, the following procedures should be followed:

\(1\) The responsible VA official has the authority to waive the
requirement of a written demand or request and may expedite a response
in the event of an emergency under conditions which could not be
anticipated in the course of proper planning or which demonstrate a good
faith attempt to comply with these regulations. Determinations on oral
demands or requests should be reserved for instances where insistence on
compliance with the requirements of a proper written request would
result in the effective denial of the request and cause an injustice in
the outcome of the legal proceeding for which the testimony or records
are sought. No requester has a right to make an oral demand or request
and receive a determination, however. Whether to permit such an
exceptional procedure is a decision within the sole discretion of the
responsible VA official.

\(2\) If the responsible VA official concludes that the demand or
request, or any portion of it, should be granted (after considering the
factors listed in §14.804), the responsible VA official will then orally
advise the requester of the determination in accordance with the
procedures provided in §14.807(c), including any limitations on such
testimony or production of records, and seek a written confirmation of
the oral demand or request. The responsible VA official will make a
written record of the determination made concerning the oral demand or
request, including the grant or denial, the circumstances requiring the
procedure, and the conditions to which the requester agreed. (Authority:
38 U.S.C. 501(a) and (b); 5 U.S.C. 301)

\[59 FR 6566, Feb. 11, 1994, as amended at 61 FR 7216, Feb. 27, 1996\]