12 C.F.R. § 4.35

Consideration of requests

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(a) In general—(1) OCC discretion. The OCC decides whether to release non-public OCC information based on its weighing of all appropriate factors including the requestor's fulfilling of the requirements enumerated in § 4.33. Each decision is at the sole discretion of the Comptroller or the Comptroller's delegate and is a final agency decision. OCC action on a request for non-public OCC information exhausts administrative remedies for discovery of the information.

(2) Bases for denial. The OCC may deny a request for non-public OCC information for reasons that include the following:

(i) The requester was unsuccessful in showing that the information is relevant to the pending matter;

(ii) The requester seeks testimony and the requestor did not show a compelling need for the information;

(iii) The request arises from an adversarial matter and other evidence reasonably suited to the requester's need is available from another source;

(iv) A lawsuit or administrative action has not yet been filed and the request was made in connection with potential litigation;

(v) The production of the information would be contrary to the public interest or unduly burdensome to the OCC; or

(vi) When prohibited by law.

(3) Additional information. A requester must submit a complete request. The OCC may require the requester to provide additional information to complete a request. Consistent with the purposes stated in § 4.31, the OCC may inquire into the circumstances of any case underlying the request and rely on sources of information other than the requester, including other parties.

(4) Time required by the OCC to respond. The OCC generally will process requests in the order in which they are received. The OCC will notify the requester in writing of the final decision. Absent exigent or unusual circumstances, the OCC will respond to a request within 60 days from the date that the OCC receives a request that it deems a complete request. Consistent with § 4.33(a)(2), the OCC weighs a request to respond to provide information in less than 60 days against the unfairness to other requesters whose pending requests may be delayed and the burden imposed on the OCC by the expedited processing.

(5) Notice to subject national banks and Federal savings associations. Following receipt of a request for non-public OCC information, the OCC generally notifies the national bank or Federal savings association that is the subject of the requested information, unless the OCC, in its discretion, determines that to do so would advantage or prejudice any of the parties in the matter at issue.

(b) Testimony. (1) The OCC generally will not authorize a current OCC employee to provide expert or opinion evidence for a private party.

(2) The OCC may restrict the scope of any authorized testimony and may act to ensure that the scope of testimony given by the OCC employee adheres to the scope authorized by the OCC.

(3) Once a request for testimony has been submitted, and before the requested testimony occurs, a party to the relevant case, who did not join in the request and who wishes to question the witness beyond the scope of testimony sought by the request, shall timely submit the party's own request for OCC information pursuant to this subpart.

(4) The OCC may offer the requester the employee's written declaration in lieu of testimony.

(c) Release of non-public OCC information by others. In appropriate cases, the OCC may respond to a request for information by authorizing a party to the case who is in possession of non-public OCC information to release the information to the requester. An OCC authorization to release records does not preclude the party in possession from asserting its own privilege, arguing that the records are not relevant, or asserting any other argument for which it has standing to protect the records from release.

[60 FR 57322, Nov. 15, 1995, 75 FR 75576, Dec. 3, 2010; 76 FR 43563, July 21, 2011]

Notes of Decisions

Cited in 5 cases, 2005–2011 · leading case: Union Bank of California, N.A. v. Superior Court, 2005 Cal. Daily Op. Serv. 5259 (Cal. Ct. App. 2005).

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Union Bank of California, N.A. v. Superior Court, 2005 Cal. Daily Op. Serv. 5259 (Cal. Ct. App. 2005). “( 12 C.F.R. § 4.35 (a) (2005).) 3 The discovery requests relating to the Form 244’s are identified as special interrogatories 1 through 13, request for admission 13, form interrogatory 17.”

BizCapital Bus. & Indus. Dev. Corp. v. Comptroller of the Currency of the United States, 467 F.3d 871 (5th Cir. 2006). “” 12 C.F.R. § 4.35 (a)(1). The requestor is required to show — among other things — that the information is relevant to the purpose for which it is sought, that other evidence reasonably suited to the re-questor's needs is not available from another source, that the need for the…”

Hasie v. Off. of the Comptroller of the Currency of the United States, 633 F.3d 361 (5th Cir. 2011). “12 C.F.R. § 4.35 (a)(1)-(2). 21 . Appellant’s R.”

Bizcapital Bus. & Indus. Dev. Corp. v. Off. of Comptroller of the Currency of the United States, 406 F. Supp. 2d 688 (E.D. La. 2005). “12 C.F.R. § 4.35 (a)(1). The OCC’s decision is a final agency action which exhausts administrative remedies for discovery of the information.”

Wuliger v. Off. of the Comptroller of Currency, 394 F. Supp. 2d 1009 (N.D. Ohio 2005). “Consideration of a request for nonpublic OCC information and a denial thereto is contained at 12 C.F.R. § 4.35 . Finally, the regulation addresses the OCC’s discretion and holds such a determination to be a final agency decision.”

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