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From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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POSTAL SERVICE

39 CFR Part 265


Compliance With Subpoenas, Summonses, and Court Orders by Postal
Employees Within the Inspection Service Where the Postal Service or the
United States Is Not a Party

AGENCY: Postal Service.

ACTION: Final rule.

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SUMMARY: The Postal Service has established procedures for Postal
Service employees within the Postal Inspection Service to respond to
subpoenas, summonses, and court orders to produce records or give
testimony in cases where the Postal Service is not a party. The purpose
of this rule is to minimize disruption of normal Postal Inspection
Service functions caused by compliance with those demands, maintain
control over release of public information, prevent the disclosure of
information that should not legally be disclosed, prevent the Postal
Service from being misused for private purposes, and otherwise protect
the interests of the United States. These procedures prohibit postal
employees within or assigned to the Postal Inspection Service from
complying with subpoenas, summonses, and other court orders in cases
where

[[Page 36712]]
the Postal Service is not a party unless authorized by certain
authorizing officials.

EFFECTIVE DATE: July 18, 1995.

FOR FURTHER INFORMATION CONTACT: James M. Parrott, Associate Counsel,
Office of the Chief Postal Inspector, (202) 268-4417.

SUPPLEMENTARY INFORMATION: On June 6, 1995, the Postal Service
published in the Federal Register (60 FR 29806-29809) a notice for
public comment on a proposed rule to establish procedures for employee
compliance with subpoenas, summonses, or other court orders where the
Postal Service is not a party. The rule amends 39 CFR 265 to provide
that postal employees within or assigned to the Postal Inspection
Service must follow certain rules for the release of information in the
form of documents or testimony. Giving testimony or releasing a
document in legal proceedings where the Postal Service or the United
States is not a party must be authorized beforehand. Such employees may
comply with subpoenas, summonses, and court orders after consulting
Inspection Service legal counsel and with authorization by specified
authorizing officials. The release of the information must be in
compliance with applicable laws and regulations and not be against the
interest of the United States.

No comments were received by the closing date of July 6, 1995. The
Postal Service therefore adopts the rule below as originally published
on June 6, 1995.

Several federal agencies have enacted regulations that give them
the authority to control the release of documents and testimony in
legal proceedings where the agency is not a party. Courts have
recognized that federal agencies may limit compliance in these
situations. See United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951). Additionally, subpoenas, summonses, and orders issued by state
courts, legislatures, or legislative committees that attempt to assert
jurisdiction over federal agencies are inconsistent with the Supremacy
Clause of the U.S. Constitution. A federal regulation regarding
compliance with those subpoenas reinforces this principle. McCulloch v.
Maryland, 17 U.S. (4 Wheat.) 316 (1819); United States v. McLeod, 385
F.2d 734 (5th Cir. 1967).

This rule does not apply to situations in which the United States,
the Postal Service, or any federal agency is a party in action;
Congressional requests, summonses, or subpoenas; consultative services
and technical assistance rendered by the Inspection Service in the
course of its normal functions; employees serving as expert witnesses;
employees making appearances in their private capacity; and when it has
been determined by an authorizing official that it is in the public
interest.

New Sec. 265.13 of title 39 of the Code of Federal Regulations is
the Postal Service regulation concerning the compliance with subpoenas,
summonses, and court orders by postal employees within the Inspection
Service where the Postal Service or the United States is not a party.
This section has also been written to reflect the changes in
organization that the Inspection Service has undergone. As an example,
the position of Regional Chief Inspector no longer exists within the
Inspection Service. Current regulations identify that official as
responsible for authorizing testimony or the production of documents
pursuant to a subpoena, summons, or court order where the Postal
Service, the United States, or another federal agency is not a party.
Now, the authorizing official, in most cases, is the Postal Inspector
in Charge of the affected field Division.

List of Subjects in 39 CFR Part 265

    Administrative practice and procedure, Government employees,
Release of information.

    Accordingly, 39 CFR part 265 is amended as set forth below.

PART 265--RELEASE OF INFORMATION

    1. The authority citation for part 265 continues to read as
follows:

    Authority: 5 U.S.C. 552; 5 U.S.C. App. 3; 39 U.S.C. 401, 403,
410, 1001, 2601.

    2. The heading of Sec. 265.11 is revised to read as follows:


Sec. 265.11  Compliance with subpoena duces tecum, court orders, and
summonses.
    3. Paragraphs (b) and (c) of Sec. 265.11 are removed and paragraph
(b) is reserved.
    4. A new Sec. 265.13 is added to read as follows:


Sec. 265.13  Compliance with subpoenas, summonses, and court orders by
postal employees within the Inspection Service where the Postal
Service, the United States, or any other federal agency is not a party.

    (a) Applicability of this section. The rules in this section apply
to all federal, state, and local court proceedings, as well as
administrative and legislative proceedings, other than:
    (1) Proceedings where the United States, the Postal Service, or any
other federal agency is a party;
    (2) Congressional requests or subpoenas for testimony or documents;
    (3) Consultative services and technical assistance rendered by the
Inspection Service in executing its normal functions;
    (4) Employees serving as expert witnesses in connection with
professional and consultative services under Sec. 447.23 of this
chapter and under title 5, Code of Federal Regulations, part 7001,
provided that employees acting in this capacity must state for the
record that their testimony reflects their personal opinions and should
not be viewed as the official position of the Postal Service;
    (5) Employees making appearances in their private capacities in
proceedings that do not relate to the Postal Service (e.g., cases
arising from traffic accidents, domestic relations) and do not involve
professional or consultative services; and
    (6) When in the opinion of the Counsel or the Counsel's designee,
Office of the Chief Postal Inspector, it has been determined that it is
in the best interest of the Inspection Service or in the public
interest.
    (b) Purpose and scope. The provisions in this section limit the
participation of postal employees within or assigned to the Inspection
Service, in private litigation, and other proceedings in which the
Postal Service, the United States, or any other federal agency is not a
party. The rules are intended to promote the careful supervision of
Inspection Service resources and to reduce the risk of inappropriate
disclosures that might affect postal operations.
    (c) Definitions. For the purposes of this section:
    (1) Authorizing official is the person responsible for giving the
authorization for release of documents or permission to testify.
    (2) Case or matter means any civil proceeding before a court of
law, administrative board, hearing officer, or other body conducting a
judicial or administrative proceeding in which the United States, the
Postal Service, or another federal agency is not a named party.
    (3) Demand includes any request, order, or subpoena for testimony
or the production of documents.
    (4) Document means all records, papers, or official files,
including, but not limited to, official letters, telegrams, memoranda,
reports, studies, calendar and diary entries, graphs, notes, charts,
tabulations, data analyses, statistical or information accumulations,
records of meetings and conversations, film impressions, magnetic
tapes, computer discs, and sound or mechanical reproductions;

[[Page 36713]]

    (5) Employee or Inspection Service employee, for the purpose of
this section only, refers to a Postal Service employee currently or
formerly assigned to the Postal Inspection Service, student interns,
contractors and employees of contractors who have access to Inspection
Service information and records.
    (6) Inspection Service means the organizational unit within the
Postal Service as outlined in Sec. 224.3 of this chapter.
    (7) Inspection Service Legal Counsel is an attorney authorized by
the Chief Postal Inspector to give legal advice to members of the
Inspection Service.
    (8) Inspection Service Manual is the directive containing the
standard operating procedures for Postal Inspectors and certain
Inspection Service employees.
    (9) Nonpublic includes any material or information not subject to
mandatory public disclosure under Sec. 265.6(b).
    (10) Official case file means official documents that relate to a
particular case or investigation. These documents may be kept at any
location and do not necessarily have to be in the same location in
order to constitute the file.
    (11) Postal Inspector reports include all written reports, letters,
recordings, or other memorializations made in conjunction with the
duties of a Postal Inspector.
    (12) Testify or testimony includes both in-person oral statements
before any body conducting a judicial or administrative proceeding and
statements made in depositions, answers to interrogatories,
declarations, affidavits, or other similar documents.
    (13) Third-party action means an action, judicial or
administrative, in which the United States, the Postal Service, or any
other federal agency is not a named party.
    (d) Policy. (1) No current or former employee within the Inspection
Service may testify or produce documents concerning information
acquired in the course of employment or as a result of his or her
relationship with the Postal Service in any proceeding to which this
section applies (see paragraph (a) of this section), unless authorized
to do so. Authorization will be provided by:
    (i) The Postal Inspector in Charge of the affected field Division,
or designee, for Division personnel and records, after that official
has determined through consultation with Inspection Service legal
counsel that no legal objection, privilege, or exemption applies to
such testimony or production of documents.
    (ii) The Chief Postal Inspector or designee for Headquarters
employees and records, after that official has determined through
consultation with Inspection Service legal counsel, that no legal
objection, privilege, or exemption applies to such testimony or
production of documents.
    (2) Consideration shall be given to:
    (i) Statutory restrictions, as well as any legal objection,
exemption, or privilege that may apply;
    (ii) Relevant legal standards for disclosure of nonpublic
information and documents;
    (iii) Inspection Service rules and regulations and the public
interest;
    (iv) Conservation of employee time; and
    (v) Prevention of the expenditure of Postal Service resources for
private purposes.
    (3) If additional information is necessary before a determination
can be made, the authorizing official may, in coordination with
Inspection Service legal counsel, request assistance from the
Department of Justice.
    (e) Compliance with subpoena duces tecum. (1) Except as required by
part 262 of this chapter, produce any other record of the Postal
Service only in compliance with a subpoena duces tecum or appropriate
court order.
    (2) Do not release any record containing information relating to an
employee's security or loyalty.
    (3) Honor subpoenas and court orders only when disclosure is
authorized.
    (4) When authorized to comply with a subpoena duces tecum or court
order, do not leave the originals with the court.
    (5) Postal Inspector reports are considered to be confidential
internal documents and shall not be released unless there is specific
authorization by the Chief Postal Inspector or the Inspector in Charge
of the affected field Division, after consulting with Inspection
Service legal counsel.
    (6) The Inspection Service Manual and other operating instructions
issued to Inspection Service employees are considered to be
confidential and shall not be released unless there is specific
authorization, after consultation with Inspection Service legal
counsel. If the requested information relates to confidential
investigative techniques, or release of the information would adversely
affect the law enforcement mission of the Inspection Service, the
subpoenaed official, through Inspection Service legal counsel, may
request an in camera, ex parte conference to determine the necessity
for the release of the information. The entire Manual should not be
given to any party.
    (7) Notes, memoranda, reports, transcriptions, whether written or
recorded and made pursuant to an official investigation conducted by a
member of the Inspection Service, are the property of the Inspection
Service and are part of the official case file, whether stored with the
official file.
    (f) Compliance with summonses and subpoenas ad testificandum. (1)
If an Inspection Service employee is served with a third-party summons
or a subpoena requiring an appearance in court, contact should be made
with Inspection Service legal counsel to determine whether and which
exemptions or restrictions apply to proposed testimony. Inspection
Service employees are directed to comply with summonses, subpoenas, and
court orders, as to appearance, but may not testify without
authorization.
    (2) Postal Inspector reports or records will not be presented
during testimony, in either state or federal courts in which the United
States, the Postal Service, or another federal agency is not a party in
interest, unless authorized by the Chief Postal Inspector or the Postal
Inspector in Charge of the affected field Division, who will make the
decision after consulting with Inspection Service legal counsel. If an
attempt is made to compel production, through testimony, the employee
is directed to decline to produce the information or matter and to
state that it may be exempted and may not be disclosed or produced
without the specific approval of the Chief Postal Inspector or the
Postal Inspector in Charge of the affected field Division. The Postal
Service will offer all possible assistance to the courts, but the
question of disclosing information for which an exemption may be
claimed is a matter of discretion that rests with the appropriate
official. Paragraph (e) of this section covers the release of
Inspection Service documents in cases where the Postal Service or the
United States is not a party.
    (g) General procedures for obtaining Inspection Service documents
and testimony from Inspection Service employees. (1) To facilitate the
orderly response to demands for the testimony of Inspection Service
employees and production of documents in cases where the United States,
the Postal Service, or another federal agency is not a party, all
demands for the production of nonpublic documents or testimony of
Inspection Service employees concerning matters relating to their
official duties and not subject to the exemptions set forth in
paragraph (a) of this section shall be in writing and conform to the
requirements outlined in paragraphs (g)(2) and (g)(3) of this section.
    (2) Before or simultaneously with service of a demand described in
paragraph (g)(1) of this section, the

[[Page 36714]]
requesting party shall serve on the Counsel, Office of the Chief Postal
Inspector, 475 L'Enfant Plaza SW., Washington, DC 20260-2181, an
affidavit or declaration containing the following information:
    (i) The title of the case and the forum where it will be heard;
    (ii) The party's interest in the case;
    (iii) The reasons for the demand';
    (iv) A showing that the requested information is available, by law,
to a party outside the Postal Service;
    (v) If testimony is sought, a summary of the anticipated testimony;
    (vi) If testimony is sought, a showing that Inspection Service
records could not be provided and used in place of the requested
testimony;
    (vii) The intended use of the documents or testimony; and
    (viii) An affirmative statement that the documents or testimony is
necessary for defending or prosecuting the case at issue.
    (3) The Counsel, Office of the Chief Postal Inspector, shall act as
agent for the receipt of legal process for demands for production of
records or testimony of Inspection Service employees where the United
States, the Postal Service, or any other federal agency is not a party.
A subpoena for testimony or for the production of documents from an
Inspection Service employee concerning official matters shall be served
in accordance with the applicable rules of civil procedure. A copy of
the subpoena and affidavit or declaration, if not previously furnished,
shall also be sent to the Chief Postal Inspector or the appropriate
Postal Inspector in Charge.
    (4) Any Inspection Service employee who is served with a demand
shall promptly inform the Chief Postal Inspector, or the appropriate
Postal Inspector in Charge, of the nature of the documents or testimony
sought and all relevant facts and circumstances.
    (h) Authorization of testimony or production of documents. (1) The
Chief Postal Inspector or the Postal Inspector in Charge of the
affected field Division, after consulting with Inspection Service legal
counsel, shall determine whether testimony or the production of
documents will be authorized.
    (2) Before authorizing the requested testimony or the production of
documents, the Chief Postal Inspector or the Postal Inspector in Charge
of the affected field Division shall consider the following factors:
    (i) Statutory restrictions, as well as any legal objection,
exemption, or privilege that may apply;
    (ii) Relevant legal standards for disclosure of nonpublic
information and documents;
    (iii) Inspection Service rules and regulations and the public
interest;
    (iv) Conservation of employee time; and
    (v) Prevention of expenditures of government time and resources
solely for private purposes.
    (3) If, in the opinion of the authorizing official, the documents
should not be released or testimony should not be furnished, that
official's decision is final.
    (4) Inspection Service legal counsel may consult or negotiate with
the party or the party's counsel seeking testimony or documents to
refine and limit the demand, so that compliance is less burdensome, or
obtain information necessary to make the determination whether the
documents or testimony will be authorized. If the party or party's
counsel seeking the documents or testimony fails to cooperate in good
faith, preventing Inspection Service legal counsel from making an
informed recommendation to the authorizing official, that failure may
be presented to the court or other body conducting the proceeding as a
basis for objection.
    (5) Permission to testify or to release documents in all cases will
be limited to matters outlined in the affidavit or declaration
described in paragraph (g)(2) of this section or to such parts as
deemed appropriate by the authorizing official.
    (6) If the authorizing official allows the release of documents or
testimony to be given by an employee, arrangements shall be made for
the taking of testimony or receipt of documents by the least disruptive
methods to the employee's official duties. Testimony may, for example,
be provided by affidavits, answers to interrogatories, written
depositions, or depositions transcribed, recorded, or preserved by any
other means allowable by law.
    (i) While giving a deposition, the employee may, at the option of
the authorizing official, be represented by Inspection Service legal
counsel.
    (ii) While completing affidavits, or other written reports or at
any time during the process of preparing for testimony or releasing
documents, the employee may seek the assistance of Inspection Service
legal counsel.
    (7) Absent written authorization from the authorizing official, the
employee shall respectfully decline to produce the requested documents,
testify, or, otherwise, disclose the requested information.
    (8) If the authorization is denied or not received by the return
date, the employee, together with counsel, where appropriate, shall
appear at the stated time and place, produce a copy of this section,
and respectfully decline to testify or produce any document on the
basis of the regulations in this section.
    (9) The employee shall appear as ordered by the subpoena, summons,
or other appropriate court order, unless:
    (i) Legal counsel has advised the employee that an appearance is
inappropriate, as in cases where the subpoena, summons, or other court
order was not properly issued or served, has been withdrawn, discovery
has been stayed; or
    (ii) Where the Postal Service will present a legal objection to
furnishing the requested information or testimony.
    (i) Inspection Service employees as expert or opinion witnesses. No
Inspection Service employee may testify as an expert or opinion
witness, with regard to any matter arising out of the employee's duties
or functions at the Postal Service, for any party other than the United
States, except that in extraordinary circumstances, the Counsel, Office
of the Chief Postal Inspector, may approve such testimony in private
litigation. An Inspection Service employee may not testify as such an
expert or opinion witness without the express authorization of the
Counsel, Office of the Chief Postal Inspector. A litigant must first
obtain authorization of the Counsel, Office of the Chief Postal
Inspector, before designating an Inspection Service employee as an
expert or opinion witness.
    (j) Postal liability. This section is intended to provide
instructions to Inspection Service employees and does not create any
right or benefit, substantive or procedural, enforceable by any party
against the Postal Service.
    (k) Fees. (1) Unless determined by 28 U.S.C. 1821 or other
applicable statute, the costs of providing testimony, including
transcripts, shall be borne by the requesting party.
    (2) Unless limited by statute, such costs shall also include
reimbursement to the Postal Service for the usual and ordinary expenses
attendant upon the employee's absence from his or her official duties
in connection with the case or matter, including the employee's salary
and applicable overhead charges, and any necessary travel expenses as
follows:
    (i) The Inspection Service is authorized to charge reasonable fees
to parties demanding documents or information. Such fees, calculated to
reimburse the Postal Service for the cost of responding to a demand,
may include the costs of time expended by Inspection Service employees,
including attorneys, to process and respond to the demand; attorney
time for reviewing the

[[Page 36715]]
demand and for legal work in connection with the demand; expenses
generated by equipment used to search for, produce, and copy the
requested information; travel costs of the employee and the agency
attorney, including lodging and per diem where appropriate. Such fees
shall be assessed at the rates and in the manner specified in
Sec. 265.9.
    (ii) At the discretion of the Inspection Service where appropriate,
fees and costs may be estimated and collected before testimony is
given.
    (iii) The provisions in this section do not affect rights and
procedures governing public access to official documents pursuant to
the Freedom of Information Act, 5 U.S.C 552a.
    (l) Acceptance of service. The rules in this section in no way
modify the requirements of the Federal Rules of Civil Procedure (28
U.S.C. Appendix) regarding service of process.

Stanley F. Mires,
Chief Counsel, Legislative.
[FR Doc. 95-17326 Filed 7-17-95; 8:45 am]
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