Title 36—Parks, Forests, and Public Property--Volume 1
PART 1012—LEGAL PROCESS: TESTIMONY BY EMPLOYEES AND PRODUCTION OF RECORDS
§ 1012.1   What does this part cover?
(a) This part describes how the Presidio Trust responds to requests or subpoenas for:
(1) Testimony by employees in State, territorial or Tribal judicial, legislative or administrative proceedings concerning information acquired while performing official duties or because of an employee's official status;
(2) Testimony by employees in Federal court civil proceedings in which the United States or the Presidio Trust is not a party concerning information acquired while performing official duties or because of an employee's official status;
(3) Testimony by employees in any judicial or administrative proceeding in which the United States or the Presidio Trust, while not a party, has a direct and substantial interest;
(4) Official records or certification of such records for use in Federal, State, territorial or Tribal judicial, legislative or administrative proceedings.
(b) In this part, “employee” means a current or former Presidio Trust employee, or Board member, including a contractor or special government employee, except as the Presidio Trust may otherwise determine in a particular case.
(c) This part does not apply to:
(1) Congressional requests or subpoenas for testimony or records;
(2) Federal court civil proceedings in which the United States or the Presidio Trust is a party;
(3) Federal administrative proceedings;
(4) Federal, State and Tribal criminal court proceedings;
(5) Employees who voluntarily testify, while on their own time or in approved leave status, as private citizens as to facts or events that are not related to the official business of the Presidio Trust. The employee must state for the record that the testimony represents the employee's own views and is not necessarily the official position of the Presidio Trust. See 5 CFR 2635.702(b), 2635.807(b).
(6) Testimony by employees as expert witnesses on subjects outside their official duties, except that they must obtain prior approval if required by § 1012.11.
(d) This part does not affect the rights of any individual or the procedures for obtaining records under the Freedom of Information Act (FOIA), Privacy Act, or statutes governing the certification of official records. The Presidio Trust FOIA and Privacy Act regulations are found at parts 1007 and 1008 of this chapter.
(e) Nothing in this part is intended to impede the appropriate disclosure under applicable laws of Presidio Trust information to Federal, State, territorial, Tribal, or foreign law enforcement, prosecutorial, or regulatory agencies.
(f) This part only provides guidance for the internal operations of the Presidio Trust, and neither creates nor is intended to create any enforceable right or benefit against the United States or the Presidio Trust.
§ 1012.2   What is the Presidio Trust's policy on granting requests for employee testimony or Presidio Trust records?
(a) Except for proceedings covered by § 1012.1(c) and (d), it is the Presidio Trust's general policy not to allow its employees to testify or to produce Presidio Trust records either upon request or by subpoena. However, if the party seeking such testimony or records requests in writing, the Presidio Trust will consider whether to allow testimony or production of records under this part. The Presidio Trust's policy ensures the orderly execution of its mission and programs while not impeding any proceeding inappropriately.
(b) No Presidio Trust employee may testify or produce records in any proceeding to which this part applies unless authorized by the Presidio Trust under §§ 1012.1 through 1012.11. United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
§ 1012.3   How can I obtain employee testimony or Presidio Trust records?
(a) To obtain employee testimony, you must submit:
(1) A written request (hereafter a “ Touhy Request;” see § 1012.5 and United States ex rel. Touhy v . Ragen, 340 U.S. 462 (1951)); and
(2) A statement that you will submit a valid check for costs to the Presidio Trust, in accordance with § 1012.6, if your Touhy Request is granted.
(b) To obtain official Presidio Trust records, you must submit:
(1) A Touhy Request; and
(2) A statement that you agree to pay the costs of search and/or duplication in accordance with the provisions governing requests under the Freedom of Information Act in part 1007 of this chapter, if your Touhy Request is granted.
(c) You must send your Touhy Request to both:
(1) The employee; and
(2) The General Counsel of the Presidio Trust.
(d) The address of Presidio Trust employees and the General Counsel is: Presidio Trust, 34 Graham Street, P.O. Box 29052, San Francisco, CA 94129-0052.
§ 1012.4   If I serve a subpoena duces tecum, must I also submit a Touhy request?
Yes. If you serve a subpoena for employee testimony or if you serve a subpoena duces tecum for records in the possession of the Presidio Trust, you also must submit a Touhy Request.
§ 1012.5   What information must I put in my Touhy Request?
Your Touhy Request must:
(a) Identify the employee or record;
(b) Describe the relevance of the desired testimony or records to your proceeding and provide a copy of the pleadings underlying your request;
(c) Identify the parties to your proceeding and any known relationships they have with the Presidio Trust or to its mission or programs;
(d) Show that the desired testimony or records are not reasonably available from any other source;
(e) Show that no record could be provided and used in lieu of employee testimony;
(f) Provide the substance of the testimony expected of the employee; and
(g) Explain why you believe your Touhy Request meets the criteria specified in § 1012.9.
§ 1012.6   How much will I be charged?
We will charge you the costs, including travel expenses, for employees to testify under the relevant substantive and procedural laws and regulations. You must pay costs for record production in accordance with the provisions governing requests under the Freedom of Information Act in part 1007 of this chapter. Estimated Costs must be paid in advance by check or money order payable to the Presidio Trust. Upon determination of the precise costs, the Presidio Trust will either reimburse you for any overpayment, or charge you for any underpayment, which charges must be paid within 10 business days by check or money order payable to the Presidio Trust.
§ 1012.7   Can I get an authenticated copy of a Presidio Trust record?
Yes. We may provide an authenticated copy of a Presidio Trust record, for purposes of admissibility under Federal, State or Tribal law. We will do this only if the record has been officially released or would otherwise be released under parts 1007 or 1008 of this chapter, or this part.
§ 1012.8   How will the Presidio Trust process my Touhy Request?
(a) The Executive Director will decide whether to grant or deny your Touhy Request. The Presidio Trust's General Counsel, or his or her agent, may negotiate with you or your attorney to refine or limit both the timing and content of your Touhy Request. When necessary, the General Counsel also will coordinate with the Department of Justice to file appropriate motions, including motions to remove the matter to Federal court, to quash, or to obtain a protective order.
(b) We will limit the Presidio Trust's decision to allow employee testimony to the scope of your Touhy Request.
(c) If you fail to follow the requirements of this part, we will not allow the testimony or produce the records.
(d) If your Touhy Request is complete, we will consider the request under § 1012.9.
§ 1012.9   What criteria will the Presidio Trust consider in responding to my Touhy Request?
In deciding whether to grant your Touhy Request, the Executive Director will consider:
(a) Your ability to obtain the testimony or records from another source;
(b) The appropriateness of the employee testimony and record production under the relevant regulations of procedure and substantive law, including the FOIA or the Privacy Act; and
(c) The Presidio Trust's ability to:
(1) Conduct its official business unimpeded;
(2) Maintain impartiality in conducting its business;
(3) Minimize the possibility that the Presidio Trust will become involved in issues that are not related to its mission or programs;
(4) Avoid spending public employees' time for private purposes;
(5) Avoid any negative cumulative effect of granting similar requests;
(6) Ensure that privileged or protected matters remain confidential; and
(7) Avoid undue burden on the Presidio Trust.
§ 1012.10   What must I, as an employee, do upon receiving a request?
(a) If you receive a request or subpoena that does not include a Touhy Request, you must immediately notify your supervisor and the Presidio Trust's General Counsel for assistance in issuing the proper response.
(b) If you receive a Touhy Request, you must promptly notify your supervisor and forward the request to the General Counsel. After consulting with the General Counsel, the Executive Director will decide whether to grant the Touhy Request under § 1012.9.
(c) All decisions granting or denying a Touhy Request must be in writing. The Executive Director must ask the General Counsel for advice when preparing the decision.
(d) Under 28 U.S.C. 1733, Federal Rule of Civil Procedure 44(a)(1), or comparable State or Tribal law, a request for an authenticated copy of a Presidio Trust record may be granted by the person having the legal custody of the record. If you believe that you have custody of a record:
(1) Consult the General Counsel to determine if you can grant a request for authentication of records; and
(2) Consult the General Counsel concerning the proper form of the authentication (as authentication requirements may vary by jurisdiction).
§ 1012.11   Must I get approval before testifying as an expert witness other than on behalf of the United States in a Federal proceeding in which the United States is a party or has a direct and substantial interest?
(a) You must comply with 5 CFR 2635.805(c), which details the authorization procedure for an employee to testify as an expert witness, not on behalf of the United States, in any proceeding before a court or agency of the United States in which the United States is a party or has a direct and substantial interest. This procedure means:
(1) You must obtain the written approval of the Presidio Trust's General Counsel;
(2) You must be in an approved leave status if you testify during duty hours; and
(3) You must state for the record that you are appearing as a private individual and that your testimony does not represent the official views of the Presidio Trust.
(b) If you testify as an expert witness on a matter outside the scope of your official duties, and which is not covered by paragraph (a) of this section, you must comply with 5 CFR 2635.802.