(a) Decision. In deciding whether to authorize a demand for testimony or documents under this subpart, the General Counsel or appropriate agency counsel shall consider whether the disclosure or testimony is in the interests of the Department. The following factors should be considered:

(1) Conserving the time of Department employees for conducting official business;

(2) Minimizing the possibility of involving the Department in controversial issues that are not related to the Department's mission or matters that do not further the Department's mission;

(3) Preventing the possibility that the public will misconstrue variances between personal opinions of Department employees and official Department policy;

(4) Avoiding spending the time and money of the United States for private purposes;

(5) Preserving the integrity of the administrative or judicial process;

(6) Protecting classified, confidential, or controlled unclassified information, and the deliberative process of the Department;

(7) Preventing the appearance of improperly favoring one litigant over another;

(8) Avoiding the denial of a party's constitutional or statutory rights;

(9) Whether such disclosure is appropriate under the rules of procedure governing the case or matter in which the demand arose;

(10) Whether disclosure is appropriate under the relevant substantive law concerning privilege; and

(11) Any other issue that is relevant to the decision.

(b) Non-disclosure factors. Demands for testimony or documents in response to which disclosure will not be made by any Department official include, but are not limited to, those demands with respect to which any of the following factors exist:

(1) Disclosure is restricted by statute or regulation, or would violate a rule of procedure, Executive order, policy, or an applicable Government directive;

(2) Disclosure would reveal classified or controlled unclassified information, unless appropriately declassified or decontrolled by the originating agency;

(3) Disclosure would reveal a confidential source or informant, unless the investigative agency and the source or informant have no objection;

(4) 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;

(5) Disclosure would improperly reveal trade secrets or disclose information protected by law, a non-disclosure agreement, or court order without authorized consent;

(6) Disclosure would be unduly costly, burdensome, or otherwise inappropriate under applicable court rules;

(7) Disclosure would involve the Department in controversial issues that are not related to the Department's mission or issues that do not further the Department's mission; or

(8) Disclosure would involve scientific or expert opinion on research that is controversial or contrary to Department policy, or would result in burdensome repetition of similar testimony in subsequent proceedings.

[87 FR 162, Jan. 4, 2022]