12 C.F.R. PART 911—AVAILABILITY OF UNPUBLISHED INFORMATION
Title 12 - Banks and Banking
Authority: 5 U.S.C. 301; 12 U.S.C. 1422b(a)(1).
Source: 64 FR 44106, Aug. 13, 1999, unless otherwise noted. Redesignated at 65 FR 8256, Feb. 18, 2000.
As used in this part: Legal proceeding means any administrative, civil, or criminal proceeding, including a grand jury or discovery proceeding, in which neither the Finance Board nor the United States is a party. Supervised entity means a Bank, the Office of Finance, and the Financing Corporation. Unpublished information means information and documents created or obtained by the Finance Board in connection with the performance of official duties, whether the information or documents are in the possession of the Finance Board, a current or former Finance Board employee or agent, a supervised entity, a Bank member, government agency, or some other person or entity; and information and documents created or obtained by, or in the memory of, a current or former Finance Board employee or agent, that was acquired in the person's official capacity or in the course of performing official duties. It does not include information or documents the Finance Board must disclose under the Freedom of Information Act (5 U.S.C. 552), Privacy Act (5 U.S.C. 552a), or the Finance Board's implementing regulations (12 CFR parts 910 and 913, respectively). It also does not include information or documents that were previously published or disclosed or are customarily furnished to the public in the course of the performance of official duties such as the annual report the Finance Board submits to Congress pursuant to section 2B(d) of the Act (12 U.S.C. 1422b(d)), press releases, Finance Board forms, and materials published in the [64 FR 44106, Aug. 13, 1999, as amended at 65 FR 8258, Feb. 18, 2000; 67 FR 12844, Mar. 20, 2002] (a) Purpose. The purposes of this part are to: (1) Maintain the confidentiality and control the dissemination of unpublished information; (2) Conserve the time of employees for official duties and ensure that Finance Board resources are used in the most efficient manner; (3) Maintain the Finance Board's impartiality among private litigants; and (4) Establish an orderly mechanism for the Finance Board to process expeditiously and respond appropriately to requests for unpublished information. (b) Scope. (1) This part applies to a request for and use and disclosure of unpublished information, including a request for unpublished information by document or testimony arising out of a legal proceeding in which neither the Finance Board nor the United States is a party. It does not apply to a request for unpublished information in a legal proceeding in which the Finance Board or the United States is a party or a request for information or records the Finance Board must disclose under the Freedom of Information Act, Privacy Act, or the Finance Board's implementing regulations. (2) This part does not, and may not be relied upon to create any substantive or procedural right or benefit enforceable against the Finance Board. (a) In general. Possession or control by any person, supervised entity, Bank member, government agency, or other entity of unpublished information does not constitute a waiver by the Finance Board of any privilege or its right to control, supervise, or impose limitations on, the subsequent use and disclosure of the information. (b) Current and former employees and agents. Except as authorized by this part or otherwise by the Finance Board, no current or former Finance Board employee or agent may disclose or permit the disclosure in any manner of any unpublished information to anyone other than a Finance Board employee or agent for use in the performance of official duties. (c) Other persons or entities possessing unpublished information. (1) Except as authorized in writing by the Finance Board, no person, supervised entity, Bank member, government agency, or other entity in possession or control of unpublished information may disclose or permit the use or disclosure of such information in any manner or for any purpose. (2) All unpublished information made available under this part remains the property of the Finance Board and may not be used or disclosed for any purpose other than that authorized under this part without the prior written permission of the Finance Board. (3) Reports of examination, supervisory correspondence, and other unpublished information lawfully in the possession of a supervised entity, Bank member, or government agency remains the property of the Finance Board and may not be used or disclosed for any purpose other than that authorized under this part without the prior written permission of the Finance Board. (4) Any person or entity that discloses or uses unpublished information except as expressly authorized under this part may be subject to the penalties provided in 18 U.S.C. 641 and other applicable laws. A current Finance Board, Bank, or Office of Finance employee also may be subject to administrative or disciplinary proceedings. (d) Exception for supervised entities and Bank members. When necessary or appropriate for business purposes, a supervised entity, Bank member, or any director, officer, employee, or agent thereof, may disclose unpublished information, including information contained in, or related to, supervisory correspondence or reports of examination, to a person or entity officially connected with the supervised entity or Bank member as officer, director, employee, attorney, agent, auditor, or independent auditor. A supervised entity, Bank member, or a director, officer, employee, or agent thereof, also may disclose unpublished information to a consultant under this paragraph if the consultant is under a written contract to provide services to the supervised entity or Bank member and the consultant has agreed in writing: (1) To abide by the prohibition on the disclosure of unpublished information contained in this section; and (2) That it will not to use the unpublished information for any purposes other than those stated in its contract to provide services to the supervised entity or Bank member. (e) Government agencies. The Finance Board may make reports of examination, supervisory correspondence, and other unpublished information available to another federal agency or a state agency for use where necessary in the performance of the agency's official duties. As used in this paragraph, the term agency does not include a grand jury. [64 FR 44106, Aug. 13, 1999, as amended at 65 FR 8258, Feb. 18, 2000; 67 FR 12844, Mar. 20, 2002] (a) Form of requests. A request for unpublished information must be submitted to the Finance Board in writing and include a detailed description of the basis for the request. At a minimum, the request must demonstrate that: (1) The requested information is highly relevant to the purpose for which it is sought; (2) The requested information is not available from any other source; (3) The need for the information clearly outweighs the need to maintain its confidentiality; and (4) The need for the information clearly outweighs the burden on the Finance Board to produce it. (b) Requests for documents. If the request is for unpublished information by document, the request must include the elements in paragraph (a) of this section and also must adequately describe the record or records sought by type and date. (c) Requests for testimony. (1) If the request is for unpublished information by testimony, the request must include the elements in paragraph (a) of this section and also must set forth the intended use of the testimony, a summary of the scope of the testimony requested, and a showing that no document or the testimony of other non-Finance Board persons, including retained experts, could be provided and used in lieu of the testimony. (2) Upon submitting a request to the Finance Board for unpublished information by testimony, the requester must notify all other parties to the matter at issue of the request. (3) After receipt of a request for unpublished information by testimony but before the requested testimony occurs, a party to the matter at issue who did not join in the request and who wishes to question the witness beyond the scope of the testimony sought by the request, must timely submit its own request for unpublished information pursuant to this part. (d) Requests in connection with legal proceedings. If the request for unpublished information arises out of a legal proceeding, the Finance Board generally will require that the legal proceeding already be filed before it will consider the request. In addition to the elements in paragraph (a) of this section, requests in connection with legal proceedings must include the caption and docket number of the case; the forum; the name, address, phone number, and electronic mail address, if available, of counsel to all other parties to the legal proceeding; the requester's interest in the case; a summary of the issues in litigation; and the reasons for the request, including the relevance of the unpublished information and how the requested information will contribute substantially to the resolution of one or more specifically identified issues in the legal proceeding. (e) Expedited requests. If a requester seeks a response in less than 60 days, the request must explain why the request was not submitted earlier and why the Finance Board should expedite the request. (f) Where to submit requests. Send requests for unpublished information to the Office of General Counsel, Federal Housing Finance Board, 1777 F Street, NW., Washington, DC 20006. (g) Additional information—(1) From the requester. The Office of General Counsel may consult with the requester to refine and limit the scope of the request to make compliance less burdensome or to obtain information necessary to make an informed determination on the request. A requester's failure to cooperate in good faith with the Office of General Counsel may serve as the basis for a determination not to grant the request. (2) From others. The Office of General Counsel may inquire into the facts and circumstances underlying a request for unpublished information and rely on sources of information other than the requester, including other parties to the matter at issue. (a) Discretion. Each decision concerning the availability of unpublished information is at the sole discretion of the Finance Board based on a weighing of all appropriate factors. The decision is a final agency action that exhausts administrative remedies for disclosure of the information. (b) Time to respond. The Finance Board generally will respond in writing to a request for unpublished information within 60 days of receipt absent exigent or unusual circumstances and dependent upon the scope and completeness of the request. (c) Factors the Finance Board may consider. The factors the Finance Board may consider in making a determination regarding the availability of unpublished information include: (1) Whether and how the requested information is relevant to the purpose for which it is sought; (2) Whether information reasonably suited to the requester's needs other than the requested information is available from another source; (3) Whether the requested information is privileged; (4) If the request is in connection with a legal proceeding, whether the proceeding has been filed; (5) The burden placed on the Finance Board to respond to the request; (6) Whether production of the information would be contrary to the public interest; and (7) Whether the need for the information clearly outweighs the need to maintain the confidentiality of the information. (d) Disclosure of unpublished information by others. When a person or entity other than the Finance Board has a claim of privilege regarding unpublished information and the information is in the possession or control of that person or entity, the Finance Board, at its sole discretion, may respond to a request for the information by authorizing the person or entity to disclose the information to the requester pursuant to an appropriate confidentiality order. Finance Board authorization to disclose information under this paragraph does not preclude the person or entity in possession of the unpublished information from asserting its own privilege, arguing that the information is not relevant, or asserting any other argument to protect the information from disclosure. (e) Notice to supervised entities and Bank members. The Finance Board generally will notify a supervised entity or Bank member that it is the subject of a request, unless the Finance Board, in its sole discretion, determines that to do so would advantage or prejudice any of the parties to the matter at issue. [64 FR 44106, Aug. 13, 1999, as amended at 65 FR 8258, Feb. 18, 2000] (a) Notice to Finance Board. Any person, including a current or former Finance Board employee or agent, or any entity, including a supervised entity, Bank member, or government agency that receives a request for, or is served with a subpoena, order, or other legal process to disclose unpublished information by document or testimony, must immediately notify the Office of General Counsel. (b) Response of person or entity served with request. Unless the Finance Board has authorized in writing disclosure of the requested information: (1) A current or former Finance Board employee or agent or a supervised entity that must respond to a subpoena, order, or other legal process, must decline to disclose the requested information, citing this part as authority. (2) A non-Finance Board person or entity may not disclose unpublished information unless: (i) The requester has sought the information from the Finance Board under this part; and (ii) After the Finance Board or the Department of Justice has had the opportunity to appear and oppose disclosure, a Federal court has ordered the person or entity to disclose the information. (c) Finance Board response. If the Finance Board does not authorize in writing disclosure of the requested information, the Finance Board will provide a copy of this part to the person or entity at whose instance the process was issued and advise that person or entity or the court or other body that the Finance Board has prohibited disclosure of the information under this part. The Finance Board or the Department of Justice may intervene in the matter at issue, attempt to have the compulsory process withdrawn, or register other appropriate objections. [64 FR 44106, Aug. 13, 1999, as amended at 65 FR 8258, Feb. 18, 2000] (a) Scope. (1) The scope of permissible testimony is limited to that set forth in the written authorization granted by the Finance Board. The Finance Board may act to ensure that the scope of testimony provided is consistent with the written authorization. (2) A party to the matter at issue that did not join in a request for unpublished information who wishes to question a witness beyond the authorized scope must request expanded authorization under this part. The Finance Board will attempt to render decisions on such requests in an expedited manner. (3) The Finance Board generally will not authorize a current employee or agent to provide expert or opinion testimony for a private party. (b) Manner in which testimony is given. (1) The Finance Board ordinarily will make the authorized testimony of a former or current employee or agent available only through written interrogatories or deposition. The Finance Board will not authorize testimony at a trial or hearing unless the requester shows that properly developed deposition testimony could not be used or would be inadequate at the trial or hearing. (2) If the Finance Board has authorized testimony in connection with a legal proceeding, the requester must cause a subpoena to be served on the employee in accordance with applicable rules of procedure, with a copy by registered or certified mail to the Office of General Counsel. (3) If the authorized testimony is through deposition, the deposition ordinarily will take place at the Finance Board's offices at a time that will avoid substantial interference with the performance of the employee's official duties. (4) The requester is responsible for all costs associated with an employee's appearance, including provision of a copy of a transcript of the deposition at the request of the Office of General Counsel. The person whose deposition was transcribed does not waive his or her right to review the transcript and note errors. (c) Restrictions on use and disclosure. The Finance Board may condition its authorization of deposition testimony on an agreement of the parties to appropriate limitations, such as an agreement to keep the transcript of the testimony under seal or to make the transcript available only to the parties, the court or other body, or the jury. Upon request made pursuant to this part or on its own initiative, the Finance Board may authorize use of a deposition transcript in another legal proceeding or non-adversarial matter. (d) Responsibility of litigants. If the testimony is disclosed in connection with a legal proceeding, the requester is responsible for: (1) Promptly notifying all other parties to the legal proceeding of the disclosure, and, after entry of a protective order, providing copies of the testimony to the other parties who are signatories and subject to the protective order; and (2) At the conclusion of the legal proceeding, retrieving the testimony from the court or other body's file as soon as it is no longer required and certifying to the Finance Board that every party covered by the protective order has destroyed the unpublished information. (a) Scope. The scope of permissible document disclosure is limited to that set forth in the written authorization granted by the Finance Board. The Finance Board may act to ensure that the scope of documents provided is consistent with the written authorization. (b) Restrictions on use and disclosure. The Finance Board may condition a decision to disclose unpublished information by document on entry of a protective order satisfactory to the Finance Board by the court or other body presiding in a legal proceeding or, in non-adversarial matters, on a written agreement of confidentiality that limits access of third parties to the unpublished information. In a legal proceeding in which a protective order already has been entered, the Finance Board may condition a decision to disclose unpublished information upon inclusion of additional or amended provisions in the protective order. Upon request made pursuant to this part or on its own initiative, the Finance Board may authorize use of the documents in another legal proceeding or non-adversarial matter. (c) Responsibility of litigants. If the documents are disclosed in connection with a legal proceeding, the requester is responsible for: (1) Promptly notifying all other parties to the legal proceeding of the disclosure, and, after entry of a protective order, providing copies of the documents to the other parties that are signatories and subject to the protective order; and (2) At the conclusion of the legal proceeding, retrieving the documents from the court or other body's file as soon as they are no longer required and certifying to the Finance Board that every party covered by the protective order has destroyed the unpublished information. (d) Certification or authentication. If the Finance Board has authorized disclosure of unpublished information by document, it will provide certified or authenticated copies of the document upon request. (a) Fees for records search, copying, and certification. Unless waived or reduced, a requester must pay a fee to the Finance Board for the costs of searching, copying, authenticating, or certifying unpublished information in accordance with 12 CFR 910.9. The Office of Resource Management generally will bill a requester upon completion of the production, but, in certain instances, may require a requester to remit payment prior to providing the requested information. To pay fees assessed under this section, a requester must deliver to the Office of Resource Management, located at the Federal Housing Finance Board, 1777 F Street, NW., Washington, DC 20006, a check or money order made payable to the “Federal Housing Finance Board.” (b) Witness fees and mileage—(1) Current Finance Board or federal employees. If the Finance Board authorizes disclosure of unpublished information by testimony of a current Finance Board employee or agent or a former Finance Board employee or agent who is still in the employ of the United States, upon completion of the testimonial appearance the requester must remit promptly to the Office of Resource Management payment for witness fees and mileage computed in accordance with 28 U.S.C. 1821. (2) Former employees or agents. If the Finance Board authorizes disclosure of unpublished information by testimony of a former Finance Board employee or agent who is not currently employed by the United States, upon completion of the testimonial appearance the requester must remit promptly to the witness any witness fees or mileage due in accordance with 28 U.S.C. 1821. [64 FR 44106, Aug. 13, 1999, as amended at 65 FR 8258, Feb. 18, 2000]
Title 12: Banks and Banking
PART 911—AVAILABILITY OF UNPUBLISHED INFORMATION
Section Contents
§ 911.1 Definitions.
§ 911.2 Purpose and scope.
§ 911.3 Prohibition on unauthorized use and disclosure of unpublished information.
§ 911.4 Requests for unpublished information by document or testimony.
§ 911.5 Consideration of requests.
§ 911.6 Persons and entities with access to unpublished information.
§ 911.7 Availability of unpublished information by testimony.
§ 911.8 Availability of unpublished information by document.
§ 911.9 Fees.
§ 911.1 Definitions.
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§ 911.2 Purpose and scope.
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§ 911.3 Prohibition on unauthorized use and disclosure of unpublished information.
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§ 911.4 Requests for unpublished information by document or testimony.
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§ 911.5 Consideration of requests.
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§ 911.6 Persons and entities with access to unpublished information.
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§ 911.7 Availability of unpublished information by testimony.
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§ 911.8 Availability of unpublished information by document.
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§ 911.9 Fees.
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