§ 388.111 Procedures in event of subpoena. ( a ) ( 1 ) The procedures specified in this section will apply to all subpoenas directed to Commission employees that relate in any way to the employees' official duties. These procedures will also apply to subpoenas directed to former Commission employees if the subpoenas seek nonpublic materials or information acquired during Commission employment. The provisions of paragraph (c) of this section will also apply to subpoenas directed to the Commission.
( 2 ) For purposes of this section, ( i ) *Employees,* except where otherwise specified, includes “special government employees” and other Commission employees; and
( ii ) *Nonpublic* includes any material or information which is exempt from availability for public inspection and copying;
( iii ) *Special government employees* includes consultants and other employees as defined by section 202 of Title 18 of the United States Code.
( iv ) *Subpoena* means any compulsory process in a case or matter, including a case or matter to which the Commission is not a party;
( b ) Any employee who is served with a subpoena must promptly advise the General Counsel of the Commission of the service of the subpoena, the nature of the documents or information sought, and all relevant facts and circumstances. Any former employee who is served with a subpoena that concerns nonpublic information shall promptly advise the General Counsel of the Commission of the service of the subpoena, the nature of the documents or information sought, and all relevant facts and circumstances.
( c ) A party causing a subpoena to be issued to the Commission or any employee or former employee of the Commission must furnish a statement to the General Counsel of the Commission. This statement must set forth the party's interest in the case or matter, the relevance of the desired testimony or documents, and a discussion of whether the desired testimony or documents are reasonably available from other sources. If testimony is desired, the statement must also contain a general summary of the testimony and a discussion of whether Commission records could be produced and used in lieu of testimony. Any authorization for testimony will be limited to the scope of the demand as summarized in such statement.
( d ) Commission records or information which are not part of the public record will be produced only upon authorization by the Commission.
( e ) The Commission or its designee will consider and act upon subpoenas under this section with due regard for statutory restrictions, the Commission's Rules of Practice and Procedure, and the public interest, taking into account factors such as applicable privileges including the deliberative process privilege; the need to conserve the time of employees for conducting official business; the need to avoid spending the time and money of the United States for private purposes; the need to maintain impartiality between private litigants in cases where a substantial government interest is not involved; and the established legal standards for determining whether justification exists for the disclosure of confidential information and records.
( f ) The Commission authorizes the General Counsel or the General Counsel's designee to make determinations under this section.