Obtaining Information from Federal Agencies: Tips for Complying with Touhy

Subpoenaing testimony or documents from federal agencies, such as the Federal Bureau of Investigations (FBI) or Immigration and Customs Enforcement (ICE), is not as simple as obtaining a court order listing the materials sought. After the Supreme Court’s decision in United States v. Touhy, which held that it was a proper exercise of executive power to regulate the release of information by agency subordinates, obtaining information from a federal agency requires compliance with what is commonly known as the agency’s Touhy regulations. Although there are ways to challenge an agency’s Touhy regulations, doing so is difficult. It is usually more practical to comply with them. Here are some tips on how to do so.

Each agency has its own set of regulations. The first step in obtaining the information sought is determining which agency’s regulations are applicable. For example, smaller agencies, such as the FBI and ICE, fall under larger executive agencies: the Department of Justice and the Department of Homeland Security, respectively. Reach out informally to the appropriate official to notify the agency of the anticipated request and seek guidance on the proper form for the request and to whom it should be directed.

The regulations or procedures generally require a letter request to the appropriate agency official—frequently the United States Attorney, but perhaps the agency’s Office of General Counsel—accompanied by a subpoena. The letter is the most crucial part of the package. It serves to establish for the agency the relevancy of the information sought, belying concerns that it is over-inclusive and designed as part of a “fishing expedition.” It also can serve as evidence in a subsequent enforcement proceeding of the subpoena.

After a brief paragraph explaining who you represent, the purpose of the letter and the nature of the case, the letter should include a statement of the facts. The facts should be written to emphasize the case’s public importance and provide a basis to conclude that the government agency has relevant information. While the facts should be written in a favorable light to your client, they might take a more neutral tone than what would be appropriate for a brief. Writing as though facts have been established or are clear defeats the purpose of a request to obtain information to support those facts. If the case has survived certain procedural hurdles that have tested the issues, such as a motion to dismiss, and narrowed the claims and parties, mention so.

The requests should be narrowly tailored to the extent possible and clearly state the relevance of the requested material to the claims. Avoid broad requests that are more appropriate for regular federal discovery requests. To highlight the relevancy, list the particular request and then immediately explain how that information bears on the claims at issue. Explain the relevance for each request individually.

Once there is a draft Touhy request, it might be worthwhile to share it with the executive agency official before finalizing and submitting it. The agency might be able to immediately identify materials that it will not produce, or provide further guidance on the information or tailoring necessary to obtain at least a subset of the requested materials.