**(700)-90 [Testimony and Production of Documents]{.underline}**

During the course of their official duties, Treasury Inspector General
for Tax Administration (TIGTA) employees may be called upon or
subpoenaed to give oral testimony in, or to produce TIGTA documents for,
various types of legal proceedings. These legal proceedings include
court hearings, trials, depositions, administrative proceedings, and the
like. This section describes some of the situations in which TIGTA
employees may be called upon to testify or produce documents. It also
sets out the procedures for responding to each type of request. Strict
compliance with these procedures is essential to ensure TIGTA's and
employees' compliance with the law and to protect TIGTA's rights and
prerogatives in litigation.

90.1 [Treasury Regulation.]{.underline}

Currently, testimony or the production of records by TIGTA employees in
a court or other proceeding in response to a subpoena is covered by the
Department of the Treasury regulation set forth at 31 C.F.R. § 1.11,
which requires that specified Treasury Department employees, including
TIGTA employees, obtain official approval before testifying about or
producing information obtained during the course of their official
duties. The authorization provides guidance to the TIGTA
employee/witness as to any limits on his or her testimony and protects
the employee from a contempt citation. The regulation applies to all
testimony concerning official TIGTA activities and to the production of
TIGTA documents sought by subpoena.

Specifically, 31 C.F.R. § 1.11 provides:

a)  Treasury Department ... employees are prohibited from testifying or
    otherwise furnishing information obtained as a result of their
    official capacities or in connection with the transaction of public
    business, in compliance with a subpoena or other order or demand of
    any court or other authority without the prior approval of an
    officer authorized to determine the availability of records under
    these regulations.

b)  Treasury Department ... employees are prohibited from furnishing any
    record in compliance with subpoenas duces tecum or other order or
    demand of any court or other authority, without the prior approval
    of an officer authorized to determine the availability of records
    under the regulations in this part.

c)  In court cases in which the United States or the Treasury Department
    is not a party, where the giving of testimony is desired, an
    affidavit by the litigant or the litigant's attorney, setting forth
    the information with respect to which the testimony of such ...
    employee is desired, must be submitted before permission to testify
    will be granted. Permission to testify will, in all cases, be
    limited to the information set forth in the affidavit or to such
    portions thereof as may be deemed proper.

d)  Where approval to testify or to furnish records in compliance with a
    subpoena, order or demand is not given the person to whom it is
    directed shall, if possible, appear in court or before the other
    authority and respectfully state his inability to comply in full
    with the subpoena, order or demand, relying for his action upon this
    section.

As stated above, subsection (c) of Treasury Reg. § 1.11 also requires
that the litigant seeking the employee's testimony or production of
documents submit an affidavit describing the information about which the
employee's testimony is sought or that specifies the documents that the
employee is to produce. The purpose of the affidavit is to permit TIGTA
officials to make informed decisions about whether the information or
documents being sought is legally disclosable and whether testimony is
in the government's interests. The contents of this affidavit are
pivotal as they will be the basis for the approval or the denial of the
litigant's request.

When TIGTA refers documents to state or local law enforcement agencies
for prosecution, TIGTA will provide the state or local prosecutor a form
entitled "[Description of Information Sought Through
Testimony](#Sampleform)" to submit with the subpoena. The form's text is
contained in the exhibit, but the template should be used. It is
retrievable via the Counsel tab in Word through File/New. In
non-referred cases, the party seeking the testimony or information must
submit an affidavit, as described in Treasury Reg. § 1.11.

90.2 [Testimony Authorization.]{.underline}

90.2.1 [Scope of Testimony.]{.underline}

A testimony authorization authorizes the employee\'s testimony and
designates the matters about which the employee may testify. A TIGTA
employee may only testify regarding official duties and may not testify
or produce TIGTA records without prior authorization except when such
testimony or production of records falls into the following categories:

-   The TIGTA employee is called to testify or produce records by the
    Department of Justice on behalf of the Government;

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-   The TIGTA employee is called to testify by the Internal Revenue
    Service at an administrative hearing involving personnel matters; or

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-   A response to a discovery request.

The testimony authorization generally indicates that employee is
prohibited from:

-   Disclosing tax returns or return information in violation of I.R.C.
    § 6103;

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-   Disclosing information that would tend to identify, either directly
    or indirectly, a confidential informant;

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-   Disclosing information protected by Grand Jury secrecy laws;

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-   Answering hypothetical questions;

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-   Answering any questions concerning the polices, practices,
    procedures or other matters of official business of the Treasury
    Inspector General for Tax Administration except as they relate or
    are relevant to the legal proceeding in which they are testifying;
    and,

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-   Revealing attorney-client or deliberative process privileged
    information.

The employee\'s testimony must be limited to the information set forth
in the authorization. If an employee is asked to testify beyond the
scope of the authorization, the employee should refuse citing the
authorization and 31 C.F.R. § 1.11 as the basis for the refusal. If
necessary, the employee should contact the Office of Chief Counsel for
assistance.

90.2.2 [Authorization and Procedure.]{.underline}

90.2.2.1 The Office of Chief Counsel\'s Disclosure Section is
responsible for generating testimony authorizations for TIGTA employees.
The decision to authorize the testimony of a TIGTA employee has been
delegated to the Deputy Inspector General for Audit, the Deputy
Inspector General for Investigations, the Assistant Inspector General
for Management Services, the Assistant Inspector General for Information
Technology, or the Chief Counsel. These executives have the authority to
delegate the authority to authorize testimony to other individuals on
their staff.

90.2.2.2 A TIGTA employee should immediately forward a subpoena or
request for testimony/production of records to the Disclosure Section
upon receipt. In addition, the employee should forward a brief narrative
or any documents, *e.g.*, Report of Investigation, that sets forth the
expected scope of the testimony to be provided by the employee.

90.2.2.3 The employee will generally receive an electronic version of
the testimony authorization. The office of the authorizing official is
responsible for forwarding the authorization to the employee. In
emergency situations oral authorization can be provided to the employee.

90.2.2.4 If it is decided that the TIGTA employee will not be authorized
to testify, the Office of Chief Counsel will assist the United States
Attorney\'s office in determining what legal efforts should be
undertaken, *e.g.*, removal to federal court or seeking to quash the
subpoena.

90.3 [Discovery.]{.underline}

"Discovery," in this section, refers to the process by which parties in
litigation, through their counsel, seek information from and provide
information to the opposing party(ies). Methods for conducting discovery
include depositions (attorneys asking a witness questions under oath
before a court reporter), interrogatories (asking written questions
answered in writing under penalty of perjury), requests for production
of documents and information, and requests for admissions. Discovery
requests are often made in accordance with a pre-trial order that
specifies the time by which discovery must be completed. As such, a
deadline by which specific discovery must be answered is generally
included in each discovery request. Attorneys often conduct discovery in
an order that builds on the foundation created by previous discovery.
Compliance with time deadlines is particularly important so that the
requesting counsel may keep to a schedule of requesting discovery,
obtaining a response, analyzing the response, and issuing the next
series of discovery requests built on the information already obtained.

The scope of and process for conducting discovery varies from case to
case and depends, in part, on the court in which the proceeding is
filed, whether the case is a criminal or civil matter, and the issues in
dispute. Discovery is a critical stage of litigation; the skill with
which an attorney conducts discovery can determine the outcome of the
entire litigation.

Records may be sought from TIGTA by parties in litigation through
discovery requests such as requests for production of documents. While
the Office of Chief Counsel operates as a contact point, the TIGTA
function that maintains the responsive records is responsible for
gathering and reviewing the records sought to determine relevancy and
possible assertion of privilege (e.g., informant privilege).

If a TIGTA employee receives a subpoena seeking testimony or records,
the subpoenaed employee should immediately notify the Office of Chief
Counsel, Disclosure Section, and forward a copy of the subpoena to the
Office of Chief Counsel.

90.4 [Brady v. Maryland and the Jencks Act.]{.underline}

Criminal trials pose unique issues related to testimony and document
production. Two of these issues are discussed in this section: *Brady v.
Maryland,* 373 U.S. 83 (1963) and the Jencks Act, 18 U.S.C. § 3500. *See
also* [§ 90.8 (Giglio/Henthorn requests).](#Giglio)

90.4.1 [Brady v. Maryland.]{.underline}

In 1963, the Supreme Court ruled in *Brady v. Maryland*, 373 U.S. 83
(1963), that the United States must provide to a criminal defendant any
evidence in its possession that is favorable to the accused and relevant
to guilt or punishment. Usually, the obligation to produce *Brady*
material is predicated on a request by defense counsel. If, however, the
material is of "obviously substantial value to the defense," the United
States is required to produce the material even absent a request.
Failure to comply with *Brady* requirements may constitute a violation
of the defendant's due process rights and may result in dismissal of the
charges.

*Brady* has practical ramifications for TIGTA employees. First, TIGTA
employees, usually Special Agents, working with a federal prosecutor
must call possible *Brady* material to the prosecutor's attention.
Further, a court may deem the prosecutor to have knowledge of and access
to *Brady* material in the possession, custody, or control of any
federal agency participating in the investigation of the defendant.
Thus, TIGTA may need to search its files for *Brady* material concerning
a defendant standing trial.

It is the responsibility of any employee working with a federal
prosecutor to perform a search of TIGTA records for any evidence that is
favorable to the accused and relevant to guilt or punishment, *i.e.,
Brady* material. The Special Agents-in-Charge (SAC) in the Field
Divisions and the Special Inquiries and Intelligence Division,
Headquarters Office are responsible for reviewing and releasing *Brady*
material to the federal prosecutor. TIGTA Counsel is available to
provide assistance in reviewing documents to determine if information is
considered to be *Brady* material.

When material protected by I.R.C. § 6103 is possible *Brady* material,
the TIGTA employee responsible for releasing the documents should
contact TIGTA\'s Office of Chief Counsel prior to the release. The
Office of Chief Counsel attorney assigned to the matter may coordinate
with the prosecutor to seek the court\'s review of the material and
determination that it constitutes *Brady* material. If the court rules
that the material is *Brady* material, the prosecutor may request a
court order releasing the I.R.C. § 6103 material to ensure compliance
with *Brady* to ensure protection of the defendant's Constitutional
rights, and to protect the prosecutor from civil liability for
unauthorized disclosures. Ideally, the court's order would also limit
defendant's use of the I.R.C. § 6103 material to that particular
criminal case. Coordination with TIGTA's Office of Chief Counsel is
recommended when I.R.C. § 6103 material is possible *Brady* material.

90.4.2 [Jencks Act.]{.underline}

The Jencks Act, 18 U.S.C. § 3500, states that no statement or report in
the possession of the United States which was made by a Government
witness or prospective Government witness (other than the defendant)
shall be the subject of discovery until the witness has testified on
direct examination in the trial of the criminal case. To be covered by
the Jencks Act, the "statement" may be either 1) written and signed or
otherwise adopted or approved by the witness; 2) a recording or
substantially verbatim transcription of an oral statement; or, 3) a
statement the witness made to a grand jury.

TIGTA employees, mostly Special Agents, must follow the direction of the
prosecutor in all criminal cases regarding the Jencks Act because the
Act is applied differently in different judicial districts. For example,
although the Act states that no statement shall be subject to discovery
before a witness for the United States testifies, the practice in some
districts is to give the witness's statement to the defense in advance
of the trial. In some districts and under some circumstances, the
statement is given to the defense during the discovery period. If this
practice might lead to witness intimidation or threats, the Special
Agent should speak with the prosecutor about her/his concerns. A TIGTA
"Report of Investigation" may be Jencks material if the Special Agent
who prepared the Report testifies at the criminal trial.

# 90.5 Privileges.

The Government may assert privilege in declining to provide access to
its documents, or to provide information orally ([e.g.,]{.underline} in
deposition or trial testimony), based upon three different grounds:
statutory privileges, evidentiary privileges, and governmental
privileges. Privilege situations normally arise in the context of
litigation.

90.5.1 Statutory privileges are based on federal statutes which allow or
require that certain information be kept confidential. The statutory
privileges which TIGTA would most commonly invoke are:

-   Internal Revenue Code (I.R.C.) § 6103: The definitions of returns
    and return information under I.R.C. § 6103, and some of the
    circumstances under which TIGTA must protect information under
    I.R.C. § 6103, are discussed at [Chapter
    (700)-50.](../../700-50/700-50.doc)

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-   The Privacy Act of 1974, 5 U.S.C. § 552a: The type of information
    covered by the Privacy Act, and the circumstances under which TIGTA
    cannot disclose information protected by the Privacy Act, are
    discussed at [Chapter (700)-70.](../../700-70/700-70.doc)

90.5.2 Evidentiary privileges which the Government most commonly asserts
include:

-   Attorney-Client Privilege: The attorney-client privilege protects
    communications between clients and their attorneys that are meant to
    be confidential and that are made for the purpose of securing legal
    advice or services. The privilege clearly extends to an agency's
    confidential communications with its attorneys. The privilege
    belongs to the agency and may only be asserted or waived by the
    agency. Unlike the attorney work product privilege, the
    attorney-client privilege is not limited to the litigation context.
    The confidentiality of the communication must have existed at the
    time of the communication and still remain at the time of the
    privilege claim.

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-   Attorney Work Product Privilege: The attorney work product privilege
    protects all documents prepared by attorneys (or by non attorneys
    supervised by attorneys) in contemplation of litigation. The
    privilege includes all factual information contained in the
    protected documents. Litigation need not have actually commenced in
    order for the privilege to exist so long as specific claims have
    been identified which make litigation probable. The privilege
    extends to documents relating to possible settlement of, as well as
    to the decision to end, litigation.

90.5.3 Governmental privileges are privileges which are available only
to the Government. Certain courts require that formal claims of
Governmental privilege be made by the head of the Government agency
involved, while other courts will accept claims made by other senior
agency officials.

-   Deliberative Process Privilege: The deliberative process privilege
    (also referred to as executive privilege) may be asserted by the
    Government to protect predecisional and deliberative information
    (opinions, recommendations and advice) generated pursuant to the
    decision making processes within the Government. The privilege is
    intended to ensure that open and frank discussions will take place
    during decision making. The privilege protects only information
    reflecting the thoughts and opinions expressed during the decision
    making process and normally will not protect factual material.
    Factual material is protected if it is so inextricably intertwined
    with the deliberative material that the factual information cannot
    reasonably be separated out. Factual information may also be
    protected if the revelation of the facts discussed would itself
    reveal the thought processes involved. Records submitted by outside
    consultants may be covered by the deliberative process privilege if
    they played essentially the same part in an agency's process of
    deliberation as documents prepared by agency personnel might have
    done. The consultant would not represent an interest of its own or
    the interest of a client; its obligations would be to the truth and
    to its sense of what good judgment requires. Because the information
    protected must be predecisional in nature, the privilege does not
    cover final agency decisions or documents specifically incorporated
    by reference in final agency decisions. The deliberative process
    privilege is qualified. If the information is sought in litigation
    the court will balance the public interest in protecting the
    deliberative process with the litigant's need for the information.

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-   "Informant's" Privilege: The "informant's" privilege protects the
    identities of persons who furnish information under an express or
    implied promise of confidentiality concerning possible violations of
    law. The privilege protects only the identity of the confidential
    source and does not protect the information furnished by the
    confidential source to the Government, unless the information
    furnished would reveal the source's identity. Assurances of
    confidentiality need not have been expressly made by the agency to
    the confidential source for the privilege to attach; confidentiality
    may be implied from the circumstances surrounding the contact
    between the source and the agency. The privilege is the government's
    to assert or waive. In preparing a declaration to support its claim
    of privilege, TIGTA will necessarily rely on contemporaneous
    documentation of circumstances under which confidentiality
    assurances were given. The privilege is qualified. To prevail, the
    Government must show that its law enforcement interests outweigh the
    litigant's need to know the confidential source's identity.

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-   Investigatory Files Privilege: Investigatory files compiled for law
    enforcement purposes are privileged when disclosure of the files
    would undercut the Government's efforts to prosecute by disclosing
    unique or uncommon techniques, forewarning suspects of the
    investigation, and/or prematurely revealing the scope and direction
    of the Government's case. The privilege is qualified and will be
    lost if the court determines that the litigant's need for the
    information outweighs the law enforcement interests involved. Once
    the investigation for which the files were generated or compiled is
    closed, the privilege usually is no longer available.

90.6 [Briefing Employees.]{.underline}

90.6.1 Disclosure personnel must advise the requested/subpoenaed
employee of the authorization and the permissible scope of testimony and
production of internal revenue information prior to the time that the
employee is scheduled to appear.

90.6.2 The following items are examples of matters that the Disclosure
Section personnel may cover.

-   The specifics of the testimony and production authorization,
    including identification of the particular records, tax entities and
    tax records about which disclosure is permitted.

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-   The need to segregate documents and not testify to matters which are
    not authorized to be disclosed.

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-   Testimony should be confined to the limits of the authorization.
    Additional information (and personal opinions, unless authorized)
    should not be volunteered.

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-   During testimony, employees should make sure that they understand a
    question and give the accompanying counsel time to raise any
    objections they might have before responding. If a question is not
    understood or the employee does not know the answer, he/she should
    say so.

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-   If a \"yes or no\" answer is requested and such answer would be
    misleading, the employee should explain that the question cannot be
    properly answered without an explanation.

    90.6.3 Disclosure personnel shall instruct all employees appearing
    in testimony cases in federal and state courts and administrative
    proceedings other than TIGTA tax administration cases to provide
    feedback to the Disclosure Office regarding the nature of the
    testimony given and documents produced.

    90.6.4 Feedback information will be used by Disclosure personnel to
    close out the testimony file and, if necessary, account for
    disclosures in compliance with the notice requirement of section
    [70.6, Accounting and
    Notification](../../700-70/700-70.doc#Accounting)*.* The Privacy Act
    of 1974, at 5 USC 552a(e)(8), provides that each agency make
    reasonable efforts to serve notice on an individual when any record
    on such individual is made available to any person under compulsory
    legal process when such process becomes a matter of public record.

90.7 [Witness Fees]{.underline}

Witness fees may be encountered any time an employee testifies as a
witness in a judicial or administrative proceedings. TIGTA\'s Personnel
Policy Manual contains additional information on the different types of
court leave and related fees set forth in 5 U.S.C. §§ 5515, 5537 and
6322.

Witness fees may be tendered by an opposing party requesting trial
testimony or seeking to take deposition testimony of a TIGTA employee.
Whether a TIGTA employee may accept the tendered witness fees depends
upon whether the testimony is given in the employee\'s official or
personal capacity.

90.7.1 [Testimony in an Employee's Official Capacity.]{.underline}

Employees are not entitled to witness fees when testifying on behalf of
the United States. When the payment of witness fees is required under
federal or state law, the fees must be tendered prior to the appearance
and testimony of a TIGTA employee. If an employee testifies in an
official capacity or produces official records on behalf of a state or
local government or a private party or if the employee is summoned on
behalf of a state or local government, and the payment of witness fees
is required under federal or state law, the employee must collect the
authorized witness fees and allowances for expenses of travel and
subsistence. Employees who are granted court leave for service as
witnesses are required to turn in any fees along with a copy of the
court order, subpoena, summons, or other written request to office of
the National Director, Performance & Investment. If the subpoena is
withdrawn or quashed, notify the National Director to initiate refund of
the payment.

90.7.2 [Testimony in an Employee's Nonofficial Capacity.]{.underline}

When the employee renders witness service in an unofficial capacity to
which a government body is not a party to the proceeding, the manager
and/or timekeeper shall charge the employee's absence to annual leave or
leave without pay. For example, if a TIGTA employee witnesses an
automobile accident while walking to the office or during his or her
lunch period, any testimony on behalf of a party to the accident would
be rendered in a nonofficial capacity. Here the employee may accept any
fees and expenses incidental to such testimony.

[]{#Giglio .anchor}90.8 [Giglio/Henthorn Policy.]{.underline}

90.8.1 [Overview.]{.underline}

90.8.1.1 TIGTA employees who are potential witnesses are required to
inform the federal prosecutor with whom they work of potential
impeachment information as early as possible prior to providing a sworn
statement or testimony in any criminal investigation or case.
Notwithstanding this obligation, the federal prosecutor may also decide
to request potential impeachment information from the employing agency.
Requests originating with prosecutors are known as Giglio requests.

**Note: Henthorn requests are discovery motions by defense counsel in
federal prosecutions for similar information and are processed following
the same procedures.**

90.8.1.2 The disclosure of potential impeachment information concerning
government employees who are witnesses in federal criminal trials or
cases is governed by [Treasury Order
105-13.](http://www.treas.gov/regs/to105-13.htm)

90.8.1.3 Potential impeachment information is not easily determined.
Potential impeachment information has been generally defined as
impeaching information which is material to the defense. This
information may include, but is not strictly limited to: (a) specific
instances of conduct of a witness for the purpose of attacking the
witness' credibility or character for truthfulness; (b) evidence in the
form of opinion or reputation as to a witness' character for
truthfulness; (c) prior inconsistent statements; and, (d) information
that may be used to suggest that a witness is biased.

90.8.1.4 Allegations that cannot be substantiated, are not credible, or
have resulted in the exoneration of an employee are not considered to be
potential impeachment information. Upon request, such information which
reflects upon the truthfulness or bias of the employee, to the extent
maintained by the agency, will be provided to the federal prosecuting
office under the following circumstances:

-   When the Requesting Official advises the Agency Official that it is
    required by a Court decision in the district where the investigation
    or case is being pursued;

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-   When: (i) the allegation was made by a federal prosecutor,
    magistrate judge, or judge; or (ii) the allegation received
    publicity;

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-   When the Requesting Official and the Agency Official agree that such
    disclosure is appropriate, based upon exceptional circumstances
    involving the nature of the case or the role of the agency witness;
    or,

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-   When disclosure is otherwise deemed appropriate by the agency. The
    agency is responsible for advising the prosecuting office whether
    any aforementioned allegation is unsubstantiated, not credible, or
    resulted in the employee\'s exoneration.

## 

90.8.2 [Giglio Responsibilities.]{.underline}

The Special Agents-in-Charge (SAC) in the Field Divisions and the
Special Inquiries and Intelligence Division, Headquarters Office, are
designated as the Agency Officials to serve as points of contact within
TIGTA concerning Giglio requests. Each Agency Official should inform the
U.S. Attorney's Offices within his or her Field Division of the
designation as Agency Official for Giglio requests. Upon receiving a
request for potential impeachment information, the Agency Official shall
conduct a review of relevant files.

Each U.S. Attorney's Office will appoint a Requesting Official to serve
as the Department of Justice (DOJ) point of contact for Giglio requests.
All requests for impeachment information from the U.S. Attorney's office
will be made to TIGTA through the Requesting Official.

## 90.8.3 [Giglio Requests Involving TIGTA Cases.]{.underline}

Use the following procedures to process Giglio requests for TIGTA
(Office of Investigations) cases:

90.8.3.1 The DOJ Requesting Official will contact the appropriate Agency
Official and request impeachment information affecting witness
credibility, or other exculpatory or impeachment material subject to
discovery.

90.8.3.2 Eight categories of files are relevant to requests for
impeachment information, and must be obtained and examined:

-   **[Official Personnel Files]{.underline}** must be requested through
    the Bureau of Public Debt (BPD), telephone number (304) 480-7272.

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-   **[Employee Performance Files]{.underline}** must be requested from
    employee's immediate manager.

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-   **[Drop Files]{.underline}** must be requested from employee's
    immediate manager.

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-   **[Employee Investigative Files]{.underline}** may be queried in
    Investigations Management Information System (IMIS). In addition the
    Agency Official should contact the designated Agency Official within
    the Treasury Inspector General (TIG) to request review of
    appropriate TIG records if the witness is grade 15 or above, a TIGTA
    employee, or an IRS Chief Counsel employee.

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-   **[Disciplinary and Adverse Action Case Files]{.underline}** must be
    requested from the TIGTA Employee Relations Specialist or for IRS
    employees the appropriate Employee Relations/Labor Relations
    Specialist.

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-   **[Grievance Files]{.underline}** must be requested from the TIGTA
    Employee Relations Specialist or for IRS employees the appropriate
    Employee Relations/Labor Relations Specialist.

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-   **[Merit System Protection Board Files]{.underline}** must be
    requested from the TIGTA Employee Relations Specialist or for IRS
    employees the appropriate Employee Relations/Labor Relations
    Specialist.

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-   **[Equal Employment Opportunity Files]{.underline}** must be
    requested from the TIGTA Employee Relations Specialist or for IRS
    employees the appropriate EEO Regional Complaint Center.

90.8.3.3 The Agency Official is responsible for reviewing and releasing
potential impeachment information contained in the files subject to
review. TIGTA Counsel is available to provide assistance in reviewing
documents to determine if information is considered impeachment
information under current case law.

90.8.3.4 Any material regarding a TIGTA employee must be reviewed by
TIGTA Counsel prior to release by the TIGTA Agency Official.

90.8.3.5 Agency Officials are responsible for ensuring that tax
information protected by 26 U.S.C. § 6103 is not disclosed unless
relevant to the potential impeachment of the witness. TIGTA 's
Disclosure Office is available to assist in reviewing material for 26
USC § 6103 issues. The Agency Official must comply with the Privacy Act
Accounting of Disclosure requirements set forth at 5 U.S.C. § 552a(c).

90.8.3.6 To ensure the privacy interest of the TIGTA employee-witness,
TIGTA has the option of releasing potential impeachment information
regarding TIGTA witnesses directly to the DOJ Requesting Official. Under
the Giglio Policy, DOJ will provide the employing Agency Official with
copies of any potential impeachment information disclosed to a Court or
defense counsel, for retention in the employing agency's system of
records.

## 

90.8.4 [Giglio Requests Involving IRS Criminal Investigation
Cases.]{.underline}

90.8.4.1 Use the following procedures to process Giglio requests for IRS
Criminal Investigation (CI). CI has designated the Special
Agents-in-Charge (SAC), CI, as the Agency Officials to conduct a review
of relevant files for witnesses in CI cases. One of the categories of
records that must be checked for those witnesses is Office of
Investigations investigative files. The SAC, CI, will contact the
appropriate TIGTA SAC to request that a check of Office of
Investigations records be conducted. Upon receiving a request, the TIGTA
Agency Official will:

-   Query IMIS records for all Field Divisions, and coordinate the
    transfer and/or review of any investigative files located in another
    Field Division.

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-   If the witness is a grade 15 or above, a TIGTA employee, or an IRS
    Chief Counsel employee, advise the SAC, CI, that a check should be
    made of Treasury Office of Inspector General records.

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-   Review TIGTA files for potential impeachment information. TIGTA
    Counsel is available to provide assistance in reviewing documents to
    determine if information is considered impeachment information under
    current case law.

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-   Pursuant to an agreement with CI, and in light of privacy interests
    of employees, potential impeachment information that may be
    responsive to a Giglio request will be provided directly to the DOJ
    Requesting Official. Under the Giglio Policy, DOJ will provide the
    employing Agency Official (in CI cases, the SAC) with copies of any
    potential impeachment information which is disclosed to a Court or
    defense counsel, for retention in the employing agency's system of
    records.

90.8.4.2 Agency officials are responsible for ensuring that tax
information protected by 26 U.S.C. § 6103 is not disclosed unless
relevant to the potential impeachment of the witness. TIGTA 's
Disclosure Office is available to assist in reviewing material for 26
U.S.C. § 6103 issues. The Agency Official must comply with the Privacy
Act Accounting of Disclosure requirements set forth at 5 U.S.C. §
552a(c).

[]{#Sampleform .anchor}DESCRIPTION OF INFORMATION

[SOUGHT THROUGH TESTIMONY]{.underline}

The attached subpoena requests the testimony of a Special Agent of the
Office of the Treasury Inspector General for Tax Administrations (TIGTA)
at the prosecution of a matter TIGTA investigated and referred to my
office. The scope of the requested testimony will be the Special Agent's
knowledge of facts and circumstances concerning the allegation(s) and
investigation, and of matters contained in the Report of Investigation
provided to my office in connection with the matter to which the
subpoena refers.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_
(Signature of Prosecutor)