Touhy Requests
Subpoenas and Other Requests for Testimony of Department of Veterans Affairs (VA) Personnel and Production of VA Records in Legal Proceedings
Pursuant to 5 U.S.C. § 301, the head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. Such regulations are frequently referred to as housekeeping regulations. VA’s housekeeping regulations related to requests for testimony of VA personnel and production of VA records in legal proceedings are called “Touhy regulations,” in reference to the Supreme Court’s decision in United States ex rel. Touhy v. Regan, 340 U.S. 462 (1951).
38 C.F.R. §§ 14.800 through 14.810 establish policy, assign responsibilities, and prescribe procedures with respect to:
(a) The production or disclosure of official information or records of the VA; and
(b) The testimony of present or former VA personnel relating to any official information acquired by any individual as part of that individual's performance of official duties, or by virtue of that individual's official status, in federal, state or other legal proceedings covered by these regulations.[1]
Accordingly, VA personnel shall not, in response to a request or demand for testimony or production of records in legal proceedings, comment or testify or produce records without the prior written approval of the responsible VA official designated in § 14.807(b). 38 C.F.R. § 14.806.
FREQUENTLY ASKED QUESTIONS (FAQ):
Please review the following prior to submitting your request.
What is official information?
Official VA information includes all information of any kind, however stored, that is in the custody and control of VA or was acquired by VA personnel as part of their official duties or because of their official status. 38 C.F.R. § 14.802(e).
How do I make a request?
A request or demand for testimony or production of documents shall set forth in, or be accompanied by, an affidavit, or if that is not feasible, in, or accompanied by, a written statement by the party seeking the testimony or records or by the party's attorney, a summary of the nature and relevance of the testimony or records sought in the legal proceedings containing sufficient information for the responsible VA official to determine whether VA personnel should be allowed to testify or records should be produced. Where the materials are considered insufficient to make the determination as described in § 14.807, the responsible VA official may ask the requester to provide additional information. 38 C.F.R. § 14.805 (emphasis added).
Do I need to include an authorization for release of information and/or an order from a court of competent jurisdiction authorizing the disclosure with my request?
Yes. In addition to complying with the requirements of §§ 14.800 through 14.810, requests or demands in legal proceedings for the production of records, or for testimony of VA employees concerning information, protected by the Privacy Act, 5 U.S.C. § 552a, or other confidentiality statutes, such as 38 U.S.C. §§ 5701, 5705 and 7332, must satisfy the requirements for disclosure imposed by those statutes, and implementing regulations, such as 38 C.F.R. § 1.511, before the records may be provided or testimony given. 38 C.F.R. § 14.809.
Although the use of the VA form is not required, VA’s Request for and Authorization to Release Health Information form can be found here: About VA Form 10-5345 | Veterans Affairs. Please be sure to check the applicable box(es) for information requested and state the extent or nature of the information to be provided. Testimonial requests may be described on the VA form at the bottom of page 1 in the box identified as “other.”
What factors are considered in deciding whether to grant a request?
In deciding whether to authorize the disclosure of VA records or information or the testimony of VA personnel, VA personnel responsible for making the decision should consider the following types of factors:
(a) The need to avoid spending the time and money of the United States for private purposes and to conserve the time of VA personnel for conducting their official duties concerning servicing the Nation's veteran population;
(b) How the testimony or production of records would assist VA in performing its statutory duties;
(c) Whether the disclosure of the records or presentation of testimony is necessary to prevent the perpetration of fraud or other injustice in the matter in question;
(d) Whether the demand or request is unduly burdensome or otherwise inappropriate under the applicable court or administrative rules;
(e) Whether the testimony or production of records, including release in camera, is appropriate or necessary under the rules of procedure governing the case or matter in which the demand or request arose, or under the relevant substantive law concerning privilege;
(f) Whether the testimony or production of records would violate a statute, executive order, regulation or directive. (Where the production of a record or testimony as to the content of a record or about information contained in a record would violate a confidentiality statute's prohibition against disclosure, disclosure will not be made. Examples of such statutes are the Privacy Act, 5 U.S.C. § 552a, and sections 5701, 5705 and 7332 of title 38, United States Code);
(g) Whether the testimony or production of records, except when in camera and necessary to assert a claim of privilege, would reveal information properly classified pursuant to applicable statutes or Executive Orders;
(h) Whether the testimony would interfere with ongoing law enforcement proceedings, compromise constitutional rights, compromise national security interests, hamper VA or private health care research activities, reveal sensitive patient or beneficiary information, interfere with patient care, disclose trade secrets or similarly confidential commercial or financial information or otherwise be inappropriate under the circumstances.
(i) Whether such release or testimony reasonably could be expected to result in the appearance of VA or the Federal government favoring one litigant over another;
(j) Whether such release or testimony reasonably could be expected to result in the appearance of VA or the Federal government endorsing or supporting a position advocated by a party to the proceeding;
(k) The need to prevent the public's possible misconstruction of variances between personal opinions of VA personnel and VA or Federal policy.
(l) The need to minimize VA's possible involvement in issues unrelated to its mission;
(m) Whether the demand or request is within the authority of the party making it;
(n) Whether the demand or request is sufficiently specific to be answered; and
(o) Other matters or concerns presented for consideration in making the decision.
38 C.F.R. § 14.804.
May VA personnel provide expert or opinion testimony?
No. Absent exceptional circumstances, VA personnel shall not provide, with or without compensation, opinion or expert testimony in any legal proceedings concerning official VA information, subjects or activities, except on behalf of the United States or a party represented by the United States Department of Justice. See 38 C.F.R. § 14.808.
Are there fees associated with my request?
Yes, pursuant to 38 C.F.R. § 14.810 fees are assessed for expert and non-expert witness testimony.
Non-Expert Witness Testimony/Records:
The requester shall pay to the witness the fee and expenses prescribed for attendance by the applicable rule of court. If no such fee is prescribed, the applicable Federal rule, such as a local Federal district court rule, will apply. No additional fee will be prescribed for the time spent while testifying or in attendance to do so. See 38 C.F.R. § 14.810(c).
When a requester wishes to interview VA personnel as part of legal proceedings covered by these regulations, and such interview has been approved in accordance with these regulations, the requester shall pay a fee calculated upon the total hourly pay of the individual interviewed. See 38 C.F.R. § 14.810(d).
When VA produces records in legal proceedings pursuant to §§ 14.800 through 14.810, the fees to be charged and paid prior to production of the records shall be the fees charged by VA under its regulations implementing the fee provisions of the Freedom of Information Act, 5 U.S.C. 552. See 38 C.F.R. § 14.810(e).
[1] The Touhy regulations are inapplicable to legal proceedings in which VA, the Secretary of Veterans Affairs or the United States is a party, is represented or has a direct and substantial interest; or legal proceedings in which an individual or entity is a party for whom the United States is providing representation. See 38 C.F.R. § 14.801(b)(2).
