A "Touhy request" is a formal request for official information or testimony from a federal agency or employee, particularly in litigation where the government is not a party. The term 'Touhy request' is derived from the 1951 Supreme Court case United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468. 

A Touhy request is a formal demand for official information, testimony, or evidence from a federal agency or employee.

In this landmark case, inmate Frank Touhy subpoenaed Department of Justice records for his defense, leading to the establishment of the 'Touhy regulations' that define the procedures for requesting federal testimony or evidence.

The Court's decision established the Touhy regulations, which define the procedures for requesting federal testimony or evidence and are crucial in this process. 

Lawyers use Touhy requests to obtain official documents or to summon government employees to testify in civil or criminal cases when the government isn't a party.

These requests help government agencies control information release and manage the process, preventing their employees and resources from being diverted from their main duties. 

Instead of directly issuing a subpoena to an employee or agency, the requesting attorney initiates the process by filing a formal Touhy request with the appropriate agency. The agency's legal counsel or designated Touhy officer then reviews the request to ensure its compliance with federal regulations.

The agency determines whether to fulfill the request by releasing records or permitting testimony. It may deny the request if doing so would breach a law, regulation, or expose protected information. 

Key Takeaways

• When involved in litigation or facing criminal charges, the ability to obtain information or testimony from a government agency not directly involved can be crucial. A Touhy request, often more effective than a subpoena, empowers you to secure this essential information.
• For a federal criminal defense attorney, the issuance of a Touhy request can be a game-changer. It can secure critical information that could significantly influence your case outcome and provide the necessary evidence.
• Submitting a Touhy request can be complex, as the agency receiving it may face legal challenges to comply. It's crucial to carefully consider and prepare your request to navigate these potential obstacles.
• A Touhy request is a formal written request for official information, such as witness testimony and documents, from the U.S. government when it is not involved in the lawsuit. It follows a structured process with specific steps and requirements.
• A Touhy request is sent to a government agency, instead of issuing a subpoena directly to an agency or employee.
• It specifies the information needed and its relevance to the case. Such a request can seek documents, testimony from government staff, or access to official information held by the government when it is not a party to the lawsuit.
• Touhy requests generally require the requester to show how the information is relevant to the case, that it cannot be obtained from other sources, and to provide details about the legal proceeding.
• The Department of Justice (DOJ) is essential in overseeing Touhy requests, especially regarding government employees' obligation to notify the U.S. Attorney's Office upon receiving a subpoena or other legal demand.
• The Army also has rules concerning Touhy requests, which mandate written submissions for personnel appearances or the production of official documents in private lawsuits.
• The regulations detail how to serve the Touhy request to the agency, including whom to serve and other agency-specific requirements. Some agencies even designate a specific individual to receive Touhy requests.

What Is the Format of a Touhy Request?

A Touhy request is made via a letter that must contain all the necessary information specified in the relevant agency regulation. If you're requesting testimony as well, include a subpoena detailing the specific documents requested and the topics of the testimony. 

The letter should also include the information required by the applicable regulations and address common grounds the Government might use to object to the request.

For example, to prevent objections related to relevance and burden, it is essential to explain to the Government why the requested information is relevant and confirm that it cannot be obtained from other parties or sources outside the party.

What information Needs to be Included?

A Touhy request letter must include various details, such as the following:

• A detailed list of all requested documents and information, with as much specificity as possible.
• The necessary Touhy regulation for the specific agency, along with a statement that the request complies with it.
• A statement that the United States is not involved in the case and is not expected to become involved.
• A summary of the case's factual and procedural history, which may include a copy of the complaint.
• A statement indicating that the requested information is pertinent to the case, along with a brief explanation.
• A statement explaining the reasons why disclosing the requested information is justified.
• A declaration of your intent to pay upfront for all expenses related to searching for and producing the information.
• A short statement clarifying that the information is only accessible through this method or source, and that fulfilling the request will not interfere with official responsibilities.
• A reasonable proposed deadline for providing the information.

How Long Does It Take?

You should include all the information above to help meet requirements and reduce the chance of Government objections. After submitting your Touhy request, the Government can begin searching for the information. Since agencies often review large volumes of data, this process might take some time.

Receiving the requested documents usually takes several months. During this period, maintaining regular contact with the agency and collaborating to obtain the necessary information promptly is crucial.

It is important to note that a Touhy request can be made only after a lawsuit has commenced and reached the discovery phase. Unlike a FOIA request, a Touhy request is more comprehensive, grants access to extra information, and mandates that a lawsuit be active.

Healthcare Fraud Whistleblowers

Healthcare fraud whistleblowers frequently submit Touhy requests to CMS, raising HIPAA-related concerns and objections. When submitting such a request, it is crucial to obtain a qualified protective order (QPO).

This order helps ensure the disclosure of HIPAA-protected information is properly managed and provides CMS with written proof that a court has issued the QPO. A qualified protective order prohibits:

• Parties are restricted from using or disclosing protected health information outside of litigation.
• Mandates that the protected information be returned or destroyed after the proceedings conclude.
• Guarantees that all confidential information is securely filed under seal and inaccessible to the public.

Which Government Agencies are Covered by Touhy Requests?

Touhy requests can be made to many federal agencies, each with its own regulations regarding information disclosure. Examples of agencies where a Touhy request might be submitted include:

• Federal Bureau of Investigation (FBI): A request to the FBI may include asking for investigative reports, evidence, or expert testimony connected to a criminal investigation.
• Drug Enforcement Administration (DEA): The DEA frequently holds records and materials directly related to narcotics investigations, which could be vital in drug-related cases.
• Internal Revenue Service (IRS): In cases involving suspected financial crimes or tax fraud, the IRS may request records or testimony.
• Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF): Testimonies or evidence from the ATF might be relevant in cases involving violations related to firearms, explosives, or controlled substances.
• Department of Homeland Security (DHS): Records from agencies such as Immigration and Customs Enforcement (ICE) can be requested in cases involving immigration or cross-border crimes.
• Environmental Protection Agency (EPA): EPA records or expertise may be required for claims of environmental violations.
• Office of the Inspector General (OIG): When the OIG receives a subpoena demanding that an SSA-OIG employee testify or produce records obtained during official duties, it will handle it as a Touhy request under 20 C.F.R. Part 403. These rules usually prevent SSA-OIG employees from giving unauthorized testimony in proceedings where the United States is not a party, unless they have prior approval from the Inspector General or their designee.

Other federal agencies, including the Secret Service, the Food and Drug Administration (FDA), and military departments, are also subject to versions of Touhy regulations.

When Might a Touhy Request Be Needed?

Your attorney might consider submitting a Touhy request when records or testimony from a federal agency are essential for your defense. Here are important situations where it could be crucial:

• Obtaining Evidence: If federal records, like digital evidence from the FBI regarding alleged online criminal activity, can support your case, a Touhy request might help obtain exonerating materials or reveal weaknesses in the prosecution's case.
• Expert Testimony: Federal agencies utilize specialists such as IRS auditors, whose testimony can uncover audit flaws or errors in the prosecution's conclusions.
• Challenging the Evidence: When the prosecution uses reports from agencies, a Touhy request can provide raw data or internal documents that help your defense identify weaknesses or inconsistencies.
• Chain of Custody Issues: In cases involving physical evidence, submitting a Touhy request to agencies such as the DEA or ATF can clarify how the evidence was managed and if proper protocols were adhered to.
• Case of Government Misconduct: If procedural errors or abuses happen during an investigation, a Touhy request could reveal misconduct that might result in evidence being excluded or charges being dismissed.

Difficulties Associated with Touhy Requests

While Touhy requests can be effective, they are often difficult to carry out. Federal agencies tend to be hesitant to disclose information, especially if it may disrupt operations, breach confidentiality, or hinder ongoing investigations. Furthermore, agencies might reject requests they deem too broad, irrelevant, or burdensome.

A knowledgeable federal criminal defense attorney knows how to prepare an accurate Touhy request. This includes explicitly demonstrating the relevance and need for the requested information to support your defense.

An attorney can also contest an agency's denial by pursuing court intervention if needed. For further details, contact our federal criminal defense law firm, Eisner Gorin LLP, in Los Angeles, CA.

Related Content:

• Touhy v. Ragen, 340 U.S. 462, 468 (1951)
• Office of Inspector General - Touhy Request
• Touhy Regulations, 28 CFR § 16.21, et seq
• What Information Should be in a Touhy Request?
• Presidio Trust Considerations for Responding