(a) In deciding whether to make disclosures pursuant to a demand, Department officials and attorneys should consider:
(1) Whether such disclosure is appropriate under the rules of procedure governing the case or matter in which the demand arose, and
(2) Whether disclosure is appropriate under the relevant substantive law concerning privilege.
(b) Among the demands in response to which disclosure will not be made by any Department official are those demands with respect to which any of the following factors exist:
(1) Disclosure would violate a statute, such as the income tax laws, 26 U.S.C. 6103 and 7213, or a rule of procedure, such as the grand jury secrecy rule, F.R.Cr.P., Rule 6(e),
(2) Disclosure would violate a specific regulation;
(3) Disclosure would reveal classified information, unless appropriately declassified by the originating agency,
(4) Disclosure would reveal a confidential source or informant, unless the investigative agency and the source or informant have no objection,
(5) Disclosure would reveal investigatory records compiled for law enforcement purposes, and would interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would thereby be impaired,
(6) Disclosure would improperly reveal trade secrets without the owner's consent.
(c) In all cases not involving considerations specified in paragraphs (b)(1) through (b)(6) of this section, the Deputy or Associate Attorney General will authorize disclosure unless, in that person's judgment, after considering paragraph (a) of this section, disclosure is unwarranted. The Deputy or Associate Attorney General will not approve disclosure if the circumstances specified in paragraphs (b)(1) through (b)(3) of this section exist. The Deputy or Associate Attorney General will not approve disclosure if any of the conditions in paragraphs (b)(4) through (b)(6) of this section exist, unless the Deputy or Associate Attorney General determines that the administration of justice requires disclosure. In this regard, if disclosure is necessary to pursue a civil or criminal prosecution or affirmative relief, such as an injunction, consideration shall be given to:
(1) The seriousness of the violation or crime involved,
(2) The past history or criminal record of the violator or accused,
(3) The importance of the relief sought,
(4) The importance of the legal issues presented,
(5) Other matters brought to the attention of the Deputy or Associate Attorney General.
(d) Assistant Attorneys General, U.S. Attorneys, the Director of the EOUST, U.S. Trustees, and their designees, are authorized to issue instructions to attorneys and to adopt supervisory practices, consistent with this subpart, in order to help foster consistent application of the foregoing standards and the requirements of this subpart.
Notes of Decisions
Andrea Smith Gregory Welsh Larry Hornstein v. James Cromer, 159 F.3d 875 (4th Cir. 1998).
· cites it 3× “28 C.F.R. § 16.26 (b)(4) and (5). If so, disclosure is forbidden under the regulations, unless the Justice Department determines that the “administration of justice requires disclosure.”
Cabral v. United States Dep't of Just., 587 F.3d 13 (1st Cir. 2009).
· cites it 2× “26(b) and (c) permit disclosure only after balancing various factors, such as the importance of the legal issues presented; whether disclosure would violate a statute or regulation; whether disclosure would interfere with enforcement proceedings; and whether disclosure would…”
Daniel J. Edwards v. United States Dep't of Just., 43 F.3d 312 (7th Cir. 1994).
· cites it 2× “” 28 C.F.R. § 16.26 (b)(5) (1993). Edwards obtained a state court order to compel the Department officials to show cause why they failed to produce the additional information.”
United States v. Salemme, 91 F. Supp. 2d 141 (D. Mass. 1999).
· cites it 2× “28 C.F.R. § 16.26 (b)(4). However, any such objection would be trumped if the Deputy Attorney General or Associate Attorney General “determine[d] that the administration of justice require[d] disclosure.”
Elnashar v. Speedway SuperAmerica, LLC, 484 F.3d 1046 (8th Cir. 2007).
· cites it 3× “The FBI objected, citing several grounds including the common law confidential informant privilege and Touhy regulation 28 C.F.R. § 16.26 (b)(4). The magistrate reviewed the unredacted files in camera and ultimately denied El-nashar’s motion to compel in her Order of September…”
United States v. Fernandez, 24 F.4th 1321 (10th Cir. 2022).
· cites it 2× “In consultation with the United States Attorney’s Office for the District of New Mexico, we have considered the factors set forth in 28 CFR § 16.26 , including applicable rules of procedure and relevant substantive law concerning privilege, in determining whether disclosure is…”
United States v. Bowen, 969 F. Supp. 2d 546 (E.D. La. 2013).
· cites it 2× “See also 28 C.F.R. § 16.26 , which governs production or disclosure of information pursuant to a demand: (a) In deciding whether to make disclosures pursuant to a demand, Department officials and attorneys should consider: (1) Whether such disclosure is appropriate under the…”
State v. Vance, 339 P.3d 245 (Wash. Ct. App. 2014).
“1994) (state court had no authority to compel discovery of FBI surveillance tapes after DOJ denied production pursuant to 28 C.F.R. § 16.26 (b)(5)); Boeh, 25 F.3d 761 (FBI agent cannot be held in contempt for refusing to testify absent permission of the DOJ, pursuant to 28 C.”
United States v. James May, 819 F.2d 531 (5th Cir. 1987).
“At the evidentiary hearing before the district court, the Government argued that May had failed to make a proper request for Tucker’s testimony pursuant to 28 C.F.R. § 16.26 (1986). May conceded this point during the hearing.”
— 28 C.F.R. § 16.26(b) — 1 case
United States v. Bowen, 969 F. Supp. 2d 546 (E.D. La. 2013).
“See also 28 C.F.R. § 16.26 , which governs production or disclosure of information pursuant to a demand: (a) In deciding whether to make disclosures pursuant to a demand, Department officials and attorneys should consider: (1) Whether such disclosure is appropriate under the…”
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