§ 0.463   Disclosure of Commission records and information in legal
proceedings in which the Commission is a non-party.

   (a) This section sets forth procedures to be followed with respect to
   the production or disclosure of any material within the custody and
   control of the Commission, any information relating to such material,
   or any information acquired by any person while employed by the
   Commission as part of the person's official duties or because of the
   person's official status.

   (b) In the event that a demand is made by a court or other competent
   authority outside the Commission for the production of records or
   testimony (e.g., a subpoena, order, or other demand), the General
   Counsel shall promptly be advised of such demand, the nature of the
   records or testimony sought, and all other relevant facts and
   circumstances. The General Counsel, in consultation with the Managing
   Director, will thereupon issue such instructions as he or she may deem
   advisable consistent with this subpart.

   (c) A party in a court or administrative legal proceeding in which the
   Commission is a non-party who wishes to obtain records or testimony
   from the Commission shall submit a written request to the General
   Counsel. Such request must be accompanied by a statement setting forth
   the nature of the proceeding (including any relevant supporting
   documentation, e.g., a copy of the Complaint), the relevance of the
   records or testimony to the proceeding (including a proffer concerning
   the anticipated scope and duration of the testimony), a showing that
   other evidence reasonably suited to the requester's needs is not
   available from any other source (including a request submitted pursuant
   to § 0.460 or § 0.461 of the Commission's rules), and any other
   information that may be relevant to the Commission's consideration of
   the request for records or testimony. The purpose of the foregoing
   requirements is to assist the General Counsel in making an informed
   decision regarding whether the production of records or the testimony
   should be authorized.

   (d) In deciding whether to authorize the release of records or to
   permit the testimony of present or former Commission personnel, the
   General Counsel, in consultation with the Managing Director, shall
   consider the following factors:

   (1) Whether the request or demand would involve the Commission in
   issues or controversies unrelated to the Commission's mission;

   (2) Whether the request or demand is unduly burdensome;

   (3) Whether the time and money of the Commission and/or the United
   States would be used for private purposes;

   (4) The extent to which the time of employees for conducting official
   business would be compromised;

   (5) Whether the public might misconstrue variances between personal
   opinions of employees and Commission policy;

   (6) Whether the request or demand demonstrates that the records or
   testimony sought are relevant and material to the underlying
   proceeding, unavailable from other sources, and whether the request is
   reasonable in its scope;

   (7) Whether, if the request or demand were granted, the number of
   similar requests would have a cumulative effect on the expenditure of
   Commission resources;

   (8) Whether the requestor has agreed to pay search and review fees as
   set forth in § 0.467 of this subpart;

   (9) Whether disclosure of the records or the testimony sought would
   otherwise be inappropriate under the circumstances; and

   (10) Any other factor that is appropriate.

   (e) Among those demands and requests in response to which compliance
   will not ordinarily be authorized are those with respect to which any
   of the following factors exist:

   (1) Disclosure of the records or the testimony would violate a statute,
   Executive Order, rule, or regulation;

   (2) The integrity of the administrative and deliberative processes of
   the Commission would be compromised;

   (3) Disclosure of the records or the testimony would not be appropriate
   under the rules of procedure governing the case or matter in which the
   demand arose;

   (4) Disclosure of the records, including release in camera, or the
   testimony, is not appropriate or required under the relevant
   substantive law concerning privilege;

   (5) Disclosure of the records, except when in camera and necessary to
   assert a claim of privilege, or of the testimony, would reveal
   information properly classified or other matters exempt from
   unrestricted disclosure; or

   (6) Disclosure of the records or the testimony could interfere with
   ongoing Commission enforcement proceedings or other legal or
   administrative proceedings, compromise constitutional rights, reveal
   the identity of an intelligence source or confidential informant, or
   disclose trade secrets or similarly confidential commercial or
   financial information.

   (f) The General Counsel, following consultation with the Managing
   Director and any relevant Commission Bureau or Office, is authorized to
   approve non-privileged testimony by a present or former employee of the
   Commission or the production of non-privileged records in response to a
   valid demand issued by competent legal authority, or a request for
   records or testimony received under this section, and to assert
   governmental privileges on behalf of the Commission in litigation that
   may be associated with any such demand or request.

   (g) Any employee or former employee of the Commission who receives a
   demand for records of the Commission or testimony regarding the records
   or activities of the Commission shall promptly notify the General
   Counsel so that the General Counsel may take appropriate steps to
   protect the Commission's rights.

   (Secs. 4(i), 303(r), Communications Act of 1934, as amended, 47 U.S.C.
   154(i) and 303(r); 5 U.S.C. 301; 47 CFR 0.231(d))

   return arrow Back to Top