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e-CFR
Data is current as of May 22, 2009

Title 12:
Banks and Banking
PART 510—MISCELLANEOUS ORGANIZATIONAL
REGULATIONS

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§ 510.5   Release of unpublished OTS
information.

(a) Scope. (1) This section applies to requests by the public
for unpublished OTS information, such as requests for records or testimony
from parties to lawsuits in which the OTS is not a party.

(2) Unpublished OTS information includes records created or obtained in
connection with the OTS's performance of its responsibilities, such as
records concerning supervision, regulation, and examination of savings
associations, their holding companies, and affiliates, and records
compiled in connection with the OTS's enforcement responsibilities.
Unpublished OTS information also includes information that current and
former employees, officers, and agents obtained in their official
capacities. Examples of unpublished information include:

(i) Information in the memory of a current or former employee, officer,
or agent of the OTS (or the Federal Home Loan Bank Board, the predecessor
agency of the OTS), by testimony or informal interview, that was acquired
in the course of performing official duties or because of the employee's,
officer's or agent's official status;

(ii) Reports of examination, supervisory correspondence, internal
agency memoranda and investigatory files compiled in connection with an
investigation, whether such records are in the possession of the OTS or
some other individual or entity; and

(iii) Unpublished OTS records obtained by or in the possession of third
parties, including other government agencies.

(3) This section does not apply to:

(i) Requests for records or testimony in proceedings in which the OTS
is a party;

(ii) Requests for information by other government agencies, except when
specifically provided; and

(iii) Requests for records that are required to be disclosed under the
Freedom of Information Act, see 5 U.S.C. 552, and 31 CFR
1.1–1.6.

(b) Purpose. The purposes of this section are:

(1) To afford an orderly mechanism for the OTS to expeditiously process
requests for unpublished OTS information and, where appropriate, for the
OTS to assert evidentiary privileges in litigation;

(2) To balance the need for confidentiality of unpublished OTS
information with the private party's interest in obtaining disclosure of
that information;

(3) To ensure that the time of OTS employees is utilized in the most
efficient manner consistent with the OTS's statutory mission;

(4) To prevent undue burdens on the OTS;

(5) To limit the expenditure of the OTS's funds for private purposes;
and

(6) To maintain the impartiality of the OTS among private
litigants.

(c) Procedure —(1) Requests for records and testimony in
general. A request for unpublished OTS information must be in writing,
furnish the caption of the lawsuit if the request arises in the course of
litigation, and support the requester's claim that the information sought
is highly relevant to the purpose for which it is sought. In demonstrating
that the information is highly relevant, the requester must explain in
detail how the requested OTS information relates to the issues in the case
or the matter.

(i) For requests arising in lawsuits, the submission also must
include:

(A) A copy of the complaint or equivalent document in the case and any
other pleadings necessary to show relevance;

(B) A description of any prior decisions or pending motions in the case
that may bear on the asserted relevance of the information being sought
from the OTS; and

(C) The names, addresses and phone numbers of counsel to all other
parties in the case.

(ii) In all instances, in addition to demonstrating that the
information sought is highly relevant to the purpose for which it is
sought, the requester must:

(A) Demonstrate that the information sought is not available from any
other source; and

(B) Demonstrate that the need for the information clearly outweighs the
need to maintain the confidentiality of the OTS information and the burden
on the OTS to produce the information.

(iii) If a request seeks a response in fewer than 30 days, it must
include an explanation of why the requester was unable to submit the
request earlier and why expediting the request is required.

(2) Additional provisions relating to requests for records. In
addition to the requirements of paragraph (c)(1) of this section, the
provisions in paragraphs (c)(2)(i) and (c)(2)(ii) of this section apply to
requests for disclosure of records.

(i) A request for records must list the categories of records sought
and describe the specific information sought, including the relevant time
period.

(ii) When the OTS believes that another person has a claim of privilege
regarding the information in the records and the records are in the
possession or control of that person, such as reports prepared by a
savings association's attorneys that are shared with the OTS, the OTS may
respond to the request by authorizing that person to release the records
pursuant to an appropriate confidentiality order rather than by the OTS
releasing the records directly to the requesting party. This will enable
the person possessing or controlling the records to argue any issues of
privilege to the appropriate court.

(3) Additional provisions relating to requests for testimony from
OTS employees. In addition to the requirements of paragraph (c)(1) of
this section, the provisions in paragraphs (c)(3)(i) through (c)(3)(iv) of
this section apply to requests that current or former OTS employees be
authorized to give testimony.

(i) The request must specifically describe the substance of the
testimony sought and show a compelling need for the testimony. A showing
of compelling need should include a demonstration that the requested
information is not available from any other source, such as the books and
records of other persons or entities, OTS records that have been or might
be released, or the testimony of other non-OTS persons, including retained
experts.

(ii) OTS employees will not be authorized to provide expert or opinion
testimony for private parties.

(iii) The OTS expects litigants to anticipate their need for OTS
testimony in sufficient time to request and obtain that testimony in
deposition form. A request for testimony at a trial or hearing may not be
granted unless the requester shows that properly developed deposition
testimony could not be used or would not be adequate at the trial or
hearing.

(iv) The OTS shall specify the scope of any authorized testimony and
may take steps to ensure that the scope of testimony taken adheres to the
scope authorized. Parties to the case who did not join in the request and
who wish to question the witness beyond the authorized scope should
request expanded authorization pursuant to this regulation. The OTS will
attempt to render decisions on such requests in an expedited manner.

(4) Information available to savings associations, holding
companies, state and Federal agencies and requesters. (i) The regular
report of examination of a savings association, savings and loan holding
company, or other affiliate of a savings association is made available by
the appropriate Regional Office to the entity examined.

(ii) A subsidiary savings association of a savings and loan holding
company may reproduce and furnish a copy of its report of examination and
related supervisory correspondence of the savings association to its
parent holding company(ies) without prior approval of the OTS. A savings
and loan holding company may reproduce and furnish a copy of its report of
examination and related supervisory correspondence to another affiliated
savings and loan holding company that controls the same savings
association or its subsidiary savings association(s) without prior
approval of the OTS. This paragraph does not require such disclosure by a
parent savings and loan holding company or subsidiary savings
association.

(iii) Reports of examination and other information relating to
state-chartered savings associations and affiliates are made available,
upon request, by the OTS to the state governmental authority having
general supervision of such state-chartered savings associations.

(iv) Reports of examination and other information may be made available
by the OTS to other agencies of the United States, a state agency, or to
the Federal Home Loan Banks, for use where necessary in the performance of
their official duties.

(v) All reports or other information made available to savings
associations, holding companies, affiliates, other governmental agencies
or requesters shall remain the property of the OTS and, except as
permitted by this section or otherwise by the Director or his delegate, no
person, company, agency, or authority to whom the information is made
available, or any officer, director, employee or agent thereof, shall
disclose any such information except published statistical material that
would not disclose the identity of any individual or corporation.

(5) Where to submit requests. In all matters covered by this
section, notification of the issuance of subpoenas or compulsory process
and requests for records or testimony covered by this section must be sent
to the OTS at 1700 G Street NW., Washington, DC 20552, to the attention of
the Corporate Secretary, and should be labelled “Request for Release of
Unpublished Information Under Section 510.5.” Requesters may furnish
copies of the request or subpoenas simultaneously to the appropriate OTS
Regional Office, but the furnishing of such copies does not constitute
service on the OTS.

(d) Consideration of requests— (1) In general. The OTS
will generally process requests in the order in which they are received.
The OTS will endeavor to respond to requests within 30 days, but this may
vary depending on the scope and precision of the request. The OTS will
weigh requests for processing in less than 30 days against the burden to
the OTS of expedited processing and the unfairness to other parties whose
pending requests may be delayed.

(2) Consultation with requester. The OTS may consult with the
requester to:

(i) Refine and limit the scope of the request so as to reduce the
burden and expense on the OTS; or

(ii) Obtain additional information necessary for the OTS to make an
informed determination on the request. To the extent necessary to reach an
informed determination on the request, the OTS may inquire into the
circumstances of the underlying matter and rely on sources of information
beyond the requester, including other interested parties.

(3) Final determinations. Final determinations on requests will
be made by the Director or his delegate. All such determinations are the
sole discretion of the Director or his delegate. Requesters will be
notified in writing of the disposition of the request.

(4) Denial of requests. (i) The OTS may deny requests for
records or testimony that seek information that the OTS deems to be:

(A) Not highly relevant;

(B) Privileged;

(C) Available from other sources; or

(D) Information that should not be disclosed for reasons that warrant
restriction of discovery under the Federal Rules of Civil Procedure (28
U.S.C. appendix).

(ii) The OTS may also deny a records or testimony request when it
considers production of the information to be overly burdensome or
contrary to the public interest, or where OTS determines that the need for
the information does not clearly outweigh the need to maintain the
confidentiality of the information, or where the requester seeks testimony
and has not shown a compelling need for the testimony.

(5) Confidentiality Orders and Agreements. As is set forth in
paragraph (f) of this section, the OTS may condition release of
information on the entry by the relevant tribunal of an order satisfactory
to the OTS or, in a non-litigated matter, the execution of a
confidentiality agreement that limits access of third parties to the
unpublished OTS information. It shall be the duty of the requesting party
to obtain such an order or to execute a confidentiality agreement.

(e) Parties with access to OTS information; restriction on
dissemination —(1) Current and former employees. Except as
authorized by this section or as otherwise authorized by the Director or
his delegate, no current or former employee, officer or agent of the OTS
or a predecessor agency shall disclose or permit the disclosure of any
unpublished information of the OTS to anyone (other than an employee,
officer or agent of the OTS properly entitled to such information for the
performance of their official duties), whether by giving out or furnishing
such information or a copy thereof or by allowing any person to inspect,
examine, or copy such information or copy thereof, or otherwise.

(2) Duty of person served. If any person, whether or not a
current or former employee, officer or agent of the OTS, has information
of the OTS that may not be disclosed under the regulations of the OTS or
other applicable law, and in connection therewith is served with a
subpoena, order, or other process requiring personal attendance as a
witness or production of records or information in any proceeding, that
person shall promptly advise the OTS of such service or request for
information. Upon such notice the OTS will take appropriate action to
advise the court or tribunal that issued the process and the attorney for
the party at whose instance the process was issued, if known, of the
substance of this section. Such notice to the OTS shall be made by
contacting the Litigation Division, Office of Chief Counsel, Office of
Thrift Supervision, 1700 G Street NW., Washington, DC 20552. As provided
in paragraph (e)(3) of this section, a person so served with process may
not disclose OTS information without OTS authorization. To obtain OTS
authorization, a request must be sent to the OTS in Washington, DC, in
accordance with paragraph (c) of this section.

(3) Appearance by person served. Except as the OTS has
authorized disclosure of the relevant information, or except as authorized
by law, any person who has information of the OTS that may not be
disclosed under this section and is required to respond to a subpoena or
other legal process shall attend at the time and place therein mentioned
and respectfully decline to produce such records or give any testimony
with respect thereto, basing such refusal on this part. If,
notwithstanding, the court or other body orders the disclosure of such
records or the giving of such testimony, the person having such
information of the OTS shall continue respectfully to decline to produce
such information and shall promptly advise the Litigation Division of the
Chief Counsel's Office, Office of Thrift Supervision. Upon such notice the
OTS will take appropriate action to advise the court or tribunal which
issued the order, of the substance of this section.

(4) Non-waiver of privilege. The possession by any entity or
individual described in paragraph (c)(4) of this section of OTS records
covered by this section shall not waive any privilege of the OTS or the
OTS's right to supervise the further dissemination of these records.

(f) Orders and agreements protecting the confidentiality of
unpublished OTS information— (1) Records. Unless otherwise
permitted by the OTS, release of records authorized pursuant to this
section will be conditioned by the OTS upon entry of an acceptable
protective order by the court or administrative tribunal presiding in the
particular case, or, in non-litigated matters, upon execution of an
acceptable confidentiality agreement. In cases where protective orders
have already been entered, the OTS reserves the right to condition
approval for release of information upon the inclusion of additional or
amended provisions.

(2) Testimony. The OTS may condition its authorization of
deposition testimony on an agreement of the parties that the transcript of
the testimony will be kept under seal, or will be made available only to
the parties, the court and the jury, except to the extent that the OTS may
allow use of the transcript in related litigation. The party who requested
the testimony shall, at its expense, furnish to the OTS a copy of the
transcript of testimony of the OTS employee or former employee.

(g) Limitation of burden on the OTS in connection with released
records— (1) Authentication for use as evidence. The OTS will
authenticate released records to facilitate their use as evidence.
Requesters who require authenticated records should request certified
copies at least 30 days prior to the date they will be needed. The request
should be sent to the OTS Public Disclosure Branch and shall identify the
records, giving the office or record depository where they are located (if
known) and include copies of the records and payment of the certification
fee.

(2) Responsibility of litigants to share released records. The
party who has sought and obtained OTS records has the responsibility
of:

(i) Notifying other parties to the case of the release and, after entry
of a protective order, providing copies of the records to the other
parties who are subject to the protective order; and

(ii) Retrieving any records from the court's file as soon as the
records are no longer required by the court and returning them to the OTS.
Where a party may be involved in related litigation, the OTS may, upon a
request made to it pursuant to this section, authorize such party to
transfer the records for use in that related case.

(h) Fees— (1) Fees for records searches, copying and
certifications. Requesters shall be charged fees in accordance with
Treasury Department regulations, 31 CFR 1.7. With certain exceptions, the
regulations in 31 CFR 1.7 provide for recovery of the full direct costs of
searching, reviewing, certifying and duplicating the records sought. An
estimate of the statement of charges will be sent to requesters, and fees
shall be remitted by check payable to the OTS prior to release of the
requested records. Where it deems appropriate, the OTS may contract with
commercial copying concerns to copy the records, with the cost billed to
the requester.

(2) Witness fees and allowances. (i) Litigants whose requests
for testimony of current OTS employees are approved shall, upon completion
of the testimonial appearance, promptly tender a check payable to the OTS
for witness fees and allowances in accordance with 28 U.S.C. 1821.

(ii) All litigants whose requests for testimony of former OTS employees
are approved, shall also promptly tender witness fees and allowances to
the witness in accordance with 28 U.S.C. 1821.

[54 FR 49456, Nov. 30, 1989, as amended at 60 FR 28031, May 30,
1995]

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