431.12 - Requests for Court Testimony or Records and Certification of Records
U.S. GEOLOGICAL SURVEY DIRECTIVE
SURVEY MANUAL CHAPTER – ADMINISTRATION SERIES
Issuance Number: 431.12
Subject: Requests for Court Testimony or Records and Certification of Records
Issuance Date: 12/9/2021
Expiration Date: 12/7/2026
Responsible Office: Office of the Associate Chief Information Officer
Instruction: This Survey Manual (SM) chapter supersedes the following – SM 450.2, Court Testimony and Release of Official Records, dated April 2, 1987; SM 205.9, Authority to Approve Request to Testify, and Release of Official Personnel Folders, dated October 3, 2001; and SM 301.3, Certification of USGS Reproductions, dated February 22, 1990.
Approving Official: /s/ Roseann Gonzales-Schreiner
Deputy Director for Administration and Policy
1. Purpose. This SM chapter provides policy for handling requests for court testimony for matters in which the U.S. Government is not a party or in which the United States does not have a direct and substantial interest, and (or) for records and certification of U.S. Geological Survey (USGS) records for third party requests.
2. Scope. This SM chapter applies to all former and current Federal employees, emeritus, and volunteers who are funded by the USGS or who represent the Bureau concerning any material contained in the files of the USGS, any information relating to material contained in the files of the USGS, or any information acquired as part of that individual’s official duties with the USGS or because of that individual’s official status with the USGS.
3. Authorities.
A. Federal Rules of Civil Procedure, Rule 44, Proving an Official Record
B. 43 Code of Federal Regulations, Subpart L – Legal Process: Testimony by Employees and Production of Records
C. Standards of Ethical Conduct for Employees of the Executive Branch, 5 C.F.R. 2635.805, Service as an expert witness
4. References.
A. SM 318.1, Freedom of Information Act
B. SM 319.1, Privacy Act Program
5. Policy. The USGS is not a proponent of any special cause or interest, and it does not encroach on the field of private consultation. To carry out its mission, it is essential that the USGS maintains a policy of strict impartiality among private litigants and ensures that its employees fulfill the responsibilities for which they are entrusted. Generally, it is the policy of the Department of the Interior (DOI) and the USGS that employees will not give testimony, depositions, interpret records, or appear as witnesses in a court of law, before a hearing officer, an administrative board or commission, or other body that conducts legal proceedings, for which the U.S. Government is not a party or for which the United States does not have a direct and substantial interest. However, all requests must be reviewed, coordinated with appropriate Departmental and Bureau parties, and responded to based on the context of the request.
A. Requests for Records and Testimony. All requests for records and or testimony must be in writing, which are also known as ‘Touhy’ requests. The conditions below must be used when considering whether to grant or deny a Touhy request:
(1) The ability to obtain the testimony or records from another source,
(2) The appropriateness of the employee’s testimony and record production under the relevant regulations of procedure and substantive law, including the Freedom of Information Act (FOIA), (refer to SM 318.1) or the Privacy Act (refer to SM 319.1), and
(3) The ability to:
(a) Conduct official USGS business unimpeded,
(b) Maintain impartiality in conducting USGS business,
(c) Minimize the possibility that the USGS will become involved in issues that are not related to its mission or programs,
(d) Avoid spending public employees’ time for private purposes,
(e) Avoid the negative cumulative effect of granting similar requests,
(f) Ensure that privileged or protected matters remain confidential, and
(g) Avoid undue burden on the USGS.
B. Requests for Certification of Records. Submitting certified records as evidence is a requirement by most Federal, State, territorial, or tribal judicial proceedings. The Department requires that a Touhy request be submitted with a request for certification of USGS records.
6. Exceptions. This policy does not apply to the following situations:
A. Congressional requests (see SM 500.9, USGS Congressional and Legislative Affairs);
B. Subpoenas for testimony or records pertaining to Federal court civil proceedings in which the Federal Government is a party (see SM 431.11, Litigation);
C. Federal administrative proceedings, request for an employee to appear at a hearing or administrative proceeding pertaining to internal personnel matters such as equal employment opportunity complaints, grievances, appeals, or labor relations arbitrations, State and Tribal criminal court proceedings; or
D. 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 Department (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 Department).
E. USGS employees must obtain prior approval (via a DI-7010) from USGS Ethics Team to engage in outside work or activities (paid or unpaid) that are related to their USGS job duties OR the mission of the USGS.
7. Definitions.
A. Certification. A copy of a record accompanied by documentation certifying the authenticity of the record.
B. Expert Witness. Any individual who, by virtue of particular skills, abilities, or knowledge in some field, is requested to be a witness or give testimony during legal proceedings for the purpose of lending credibility to a case by giving opinionated evidence.
C. Witness. An individual who provides testimony under oath (or affirmation) relating to a court case or administrative hearing.
D. Judicial Proceedings. A general term for proceedings relating to, practiced in, or proceeding from a court of justice; or the cause prescribed to be taken in various cases for the determination of a controversy or for legal redress or relief.
E. Records. Records include all books, papers, maps, photographs, machine-readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Federal Government or because of the informational value of the records.
F. Subpoena. An order of the court for a witness to appear at a time and place to testify and (or) produce documents in the control of the witness (subpoena duces tecum).
G. Third Party Litigation. Federal court civil proceedings in which the United States is not a party concerning information acquired while performing official duties or because of an employee’s official status or testimony by employees in any judicial or administrative proceeding in which the United States, while not a party, has a direct and substantial interest. This includes official records or certification of records for use in Federal, State, territorial or tribal judicial, legislative, or administrative proceedings.
H. Touhy Request. This is a written document or email requesting testimony or records that addresses specific information (relevance of desired testimony or records) to the proceedings, identity of parties to the proceeding, and any known relationships that involve the DOI mission or programs.
I. Witness. A person whose declaration under oath (or affirmation) is received as evidence for any purpose, whether such declaration be made on oral examination or by deposition or affidavit.
8. Responsibilities. USGS employee responsibilities for requests for testimony and records while ensuring compliance with existing laws and regulations include the following:
A. Associate Directors, Regional Directors, and Office Chiefs are responsible for ensuring that the requirements and responsibilities for providing records and testimony are followed in their respective areas. This includes the relevant Science Center Director with concurrence from the appropriate attorney from the DOI Office of the Solicitor (SOL).
B. Science Center Directors are responsible for providing oversight and approval authority for requests to provide records or testify. The Science Center Director decides whether to grant or deny a Touhy request with concurrence from the appropriate attorney from the DOI SOL.
C. USGS Records Officer is responsible for providing oversight for the Bureau Records Management Program, including litigation, and is responsible for certification of Federal records.
D. USGS Litigation Coordinator is responsible for the following:
(1) Coordinating requests and responses with the appropriate Associate Director, Regional Director, Office Chief, Science Center Director, Human Resources Officer, Associate Privacy Officer, and the appropriate attorney from the DOI SOL;
(2) Tracking request for records, testimony, and certification; and
(3) Developing and implementing policy, guidance, and training for production of records and or testimony.
E. Designated Agency Ethics Official (DAEO) is responsible for the following: Authorizing a USGS employee’s participation to serve as an expert witness in proceeding before a court. As required by 5 C.F.R. 2635.805, a Federal employee shall not serve, other than on behalf of the United States, as an expert witness, with or without compensation, 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, unless the employee's participation is authorized by the agency by the (DAEO).
F. USGS Employees are responsible for the following:
(1) Notifying their supervisor and the USGS Litigation Coordinator immediately if they receive a request or subpoena that does not include a Touhy Request;
(2) Notifying their supervisor and coordinating with the USGS Litigation Coordinator upon receipt of a Touhy Request to ensure the DOI SOL’s concurrence and the USGS’s approval on decision to grant or deny a request;
(3) Requesting and receiving approval in writing prior to serving as an expert witness, with or without compensation, in any proceeding before a court or agency of the United States in which the United States is a party or has a direct or substantial interest; and
(4) Not testifying or producing records in any proceeding unless authorized by the USGS. Employees must work with their Science Center Director and consult with an attorney from the DOI SOL and the USGS Litigation Coordinator to prepare and issue a written response.