When you're involved in litigation or facing criminal charges, and you require information or testimony from a government agency not directly involved in your case, a "Touhy request" becomes crucial. It's often more effective than a subpoena in acquiring the necessary information.
In such cases, a skilled federal criminal defense attorney may issue a Touhy request to secure the information vital to your case. This request, when successful, can significantly impact the outcome of your case, empowering you with the necessary information.
Submitting a Touhy request can be intricate, and the agency from which you make the request may have certain legal hurdles to jump to comply with it. This complexity underscores the need for professional guidance and support in navigating the process.
Essentially, a Touhy request is a formal, written request for official information, including witness testimony and documents, from the U.S. government when it's not a party to the litigation. It's a structured process that involves specific steps and requirements.
Instead of issuing a subpoena directly to a government agency or employee, a Touhy request is a formal letter or written request sent to the appropriate government agency outlining the information sought and its relevance to the case.
A Touhy request can include requests for documents, testimony from government employees, or access to official information held by a government agency when the government is not a party to the lawsuit.
Touhy requests typically require the requester to demonstrate the information's relevance to the case, that it is not available from other sources, and to provide details about the legal proceeding.
The Department of Justice (DOJ) plays a crucial role in regulating Touhy's requests, including the need for government employees to notify the U.S. Attorney's Office when they receive a subpoena or other demand in a proceeding. Adhering to these regulations is of utmost importance in the process of making a Touhy request.
The Army also has regulations regarding Touhy requests, requiring written requests for personnel appearances or the production of official documents in private litigation.
Touhy Request - Explained
As noted, a Touhy request is a formal request for testimony, records, or evidence from a federal agency in cases where the government is not a party. These requests follow agency-specific rules based on federal regulations that control when and how federal employees or materials can be used in legal proceedings.
The term "Touhy request" comes from the 1951 Supreme Court case United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468. In this case, inmate Frank Touhy subpoenaed records from the Department of Justice for his defense.
The Court's ruling in the Touhy case established the procedural framework known as Touhy regulations. These regulations outline how to request federal testimony or evidence and play a significant role in the process.
Discovery, which is the process of formally requesting and obtaining evidence from a government agency, requires that the particular agency's Touhy regulations be followed. It is important to remember that each agency has its own Touhy regulations, so the process will vary depending on who you are seeking information from.
The regulations cover the specifics on how to serve the Touhy request to the agency, who to serve the request to, and other agency-specific requirements. Some agencies even have a person designated specifically to receive Touhy requests.
What Does a Touhy Request Look Like?
A Touhy request is sent in a letter form and must include all the required information outlined in the applicable agency regulation. If you are also seeking testimony, you should also enclose a subpoena with the specific document requests and topics of testimony.
The letter should include the information required under the relevant regulations and information addressing the grounds that the Government will frequently use to object to the request.
For example, to avoid objections based on relevance and burden, it is important to outline for the Government why and how the information sought is relevant and that it is not available from any other party or non-party source.
What Information Should be Included?
A Touhy request letter should contain a wide variety of information, including the following:
- A list of requests for all documents and information, which should be as specific as possible.
- The required Touhy regulation for the particular agency and a statement that the request is being made in accordance with it.
- A statement that the United States is not a party to the case and is not anticipated to be one.
- A brief explanation of the factual and procedural history of the case, which could include a copy of the complaint.
- A statement that the information requested is relevant to the case, including a brief explanation.
- An explanation of why disclosure of the requested information is warranted.
- A statement of your intentions to pay in advance for all expenses and costs of searching for and producing the information.
- A brief explanation that the information is not available by other means or from other sources and that responding to the request would not disrupt official duties.
- A reasonable proposed deadline for the information to be provided.
Suppose you include all this information. It will help ensure that all requirements are met and lessen the likelihood that the Government will object to the request. After you've submitted your Touhy request, the Government can start searching for the information you are seeking.
The agencies often have to look through a large volume of data, so that it may take some time. It typically takes months to receive the requested documents. During this time, it is important to stay in contact with the agency throughout the process and work with them to ensure you get the right information in a reasonable timeframe.
Notably, a Touhy request can only be issued once a lawsuit is pending and has entered the discovery phase. A Touhy request is not the same as a FOIA request, as it is more in-depth, allows access to additional information, and requires that a lawsuit be pending.
Healthcare Fraud Whistleblowers
Whistleblowers in healthcare fraud cases often submit Touhy requests to the Center for Medicare and Medicaid Services (CMS), raising HIPAA concerns and objections.
When making such a request, it's important to secure a qualified protective order (QPO), which is one way to satisfy disclosure of information protected by HIPAA and provide CMS with written assurances that the court has entered a QPO in the case. A qualified protective order prohibits:
- Parties from using or disclosing protected health information outside of litigation,
- Requires that the protected information be returned or destroyed at the end of the proceedings,
- Ensures that all protected information is filed under seal and unavailable to the public.
Which Government Agencies Are Subject to Touhy Requests?
Touhy requests are applicable across numerous federal agencies, as each operates under its regulations governing the disclosure of information. Here are some examples of agencies to which a Touhy request might be directed:
- Federal Bureau of Investigation (FBI): A request to the FBI could involve obtaining investigative reports, evidence, or expert testimony related to a criminal investigation.
- Drug Enforcement Administration (DEA): The DEA often possesses records and materials directly tied to narcotics investigations, which may be critical in drug-related cases.
- Internal Revenue Service (IRS): Records or testimony from the IRS might be requested in cases involving alleged financial crimes or tax fraud.
- Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF): Evidence or testimony from the ATF may be relevant in cases involving firearms, explosives, or controlled goods violations.
- Department of Homeland Security (DHS): Records under agencies like Immigration and Customs Enforcement (ICE) may be requested in cases related to immigration or cross-border crimes.
- Environmental Protection Agency (EPA): Records or expertise from the EPA might be necessary for allegations of environmental violations.
- Office of the Inspector General (OIG): When the OIG receives a subpoena seeking to have a Social Security Administration Office of the Inspector General (SSA-OIG) employee testify or produce records obtained in the course of official duties, they will process that subpoena as a Touhy request under the regulations at 20 C.F.R. Part 403. These regulations generally preclude SSA-OIG employees from providing unauthorized testimony in a proceeding to which the United States is not a party without prior authorization from the Inspector General or designee.
Other federal agencies, such as the Secret Service, the Food and Drug Administration (FDA), and even military departments, are likewise governed by versions of Touhy regulations.
When Might a Touhy Request Be Necessary?
Your attorney may consider making a Touhy request when records or testimony from a federal agency are critical to your defense. Here are key scenarios where it could play a vital role:
- Obtaining Evidence for Your Defense: If federal records could support your case, such as digital evidence from the FBI in an alleged online criminal activity, a Touhy request may help secure exonerating materials or highlight gaps in the prosecution's case.
- Securing Expert Testimony: Federal agencies employ specialists like IRS auditors whose testimony could reveal flaws in audits or inaccuracies in the prosecution's conclusions.
- Challenging the Prosecution's Evidence: When the prosecution relies on agency reports, a Touhy request can obtain raw data or internal documents for your defense to identify weaknesses or inconsistencies.
- Investigating Chain of Custody Issues: For cases involving physical evidence, a Touhy request to agencies like the DEA or ATF can clarify how evidence was handled and whether protocols were followed.
- Building a Case of Government Misconduct: If procedural errors or abuses occurred during an investigation, a Touhy request might uncover misconduct that could lead to evidence exclusion or charge dismissal.
Challenges of Touhy Requests
While Touhy requests can be powerful, they are not always easy to execute. Federal agencies are generally reluctant to release information, particularly if doing so could disrupt operations, compromise confidentiality, or interfere with ongoing investigations.
Additionally, agencies may deny requests they consider overly broad, irrelevant, or burdensome. A skilled federal criminal defense attorney knows how to craft a Touhy request with precision. This involves clearly identifying the relevance and necessity of the requested information to your defense.
An attorney can also challenge an agency's refusal to comply by seeking court intervention when necessary. For more information, contact Eisner Gorin LLP, a federal criminal defense law firm.
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