Touhy Request

What Does a Touhy Request Mean?

When involved in litigation or criminal charges and needing information or testimony from a government agency not directly involved, a Touhy request is essential.

A Touhy Request is a formal demand for testimony or documents from a government agency.

It often proves more effective than a subpoena for obtaining necessary information. A qualified federal criminal defense attorney may file a "Touhy request" to access critical information.

When successful, this request can greatly influence your case's outcome by providing vital information. Submitting a Touhy request can be complex, as the agency you contact may face legal challenges in fulfilling it.

This highlights the importance of seeking professional help to navigate the process.

A Touhy request is essentially a formal, written demand for official information, such as witness testimony and documents, from the U.S. government when the U.S. government is not involved in the case.

Formal Written Request to a Government Agency

The process involves specific procedures and requirements that must be followed. A Touhy request is a formal written request sent to a government agency, rather than issuing a subpoena directly to an agency or employee.

It details the information needed and its relevance to the case. This request can seek documents, testimony from government staff, or access to official information held by the agency, especially when the government is not a party to the lawsuit.

Touhy requests usually require the requester to show how the information is relevant to the case, that it cannot be obtained elsewhere, and to provide details about the legal proceeding.

The Department of Justice (DOJ) is essential in overseeing Touhy requests, including requiring government employees to notify the U.S. Attorney's Office when they receive subpoenas or other demands during a proceeding.

Following these regulations is critical when making a Touhy request. The Army also enforces regulations on Touhy requests, which mandate written submissions for personnel appearances or the production of official documents in private legal cases.

Touhy Request - Clarification and Explanation

A Touhy request is a formal petition for testimony, records, or evidence from a federal agency, especially when the government is not involved as a party.

These requests are governed by agency-specific rules derived from federal regulations, which dictate when and how federal employees or materials can be used in legal cases.

The name "Touhy request" originates from the 1951 Supreme Court decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468, where inmate Frank Touhy subpoenaed records from the Department of Justice for his defense.

The Court's decision in the Touhy case created the Touhy regulations, which set the procedures for requesting federal testimony or evidence.

These regulations are crucial to the discovery process, in which parties formally seek evidence from government agencies. Since each agency has its own Touhy regulations, the procedures differ depending on the agency involved.

The regulations detail how to serve the Touhy request on the agency, who should receive it, and other agency-specific requirements. Some agencies even have a designated individual to handle Touhy requests.

What Is an Example of a Touhy Request?

A Touhy request must be submitted in written form, including all necessary details specified by the relevant agency regulation.

If you also require testimony, include a subpoena outlining the specific document requests and topics of testimony.

The letter should contain all information mandated by the regulations, along with arguments addressing potential objections from the Government.

For instance, to counter objections based on relevance and burden, clearly explain why and how the requested information is relevant and note that it cannot be obtained from other sources or parties.

What Information Needs to Be Included?

A Touhy request letter should include various types of information, such as the following:

• A detailed list of requests for all documents and information, emphasizing specificity.
• The necessary Touhy regulation for the specific agency, along with a statement confirming that the request complies with it.
• A statement clarifying that the United States is neither a party to the case nor expected to become one.
• A short overview of the case's factual and procedural history, potentially including a copy of the complaint.
• A statement indicating that the requested information is relevant to the case, along with a brief explanation.
• An explanation of why revealing the requested information is justified.
• A declaration of your commitment to pay upfront for all expenses related to searching for and producing the information.
• A short statement clarifying that the information cannot be obtained through other sources and that fulfilling the request will not interfere with official responsibilities.
• A reasonable deadline for providing the information.

How Long Does It Take To Get a Response?

Including all this information above will help ensure all requirements are met and reduce the risk of the Government objecting to the request.

Once you submit your Touhy request, the Government can begin searching for the information you need. Since agencies often have to review a large amount of data, this process may take some time.

Receiving the requested documents usually takes several months. Throughout this period, maintaining communication with the agency is crucial to ensure you receive the correct information within a reasonable timeframe.

It's important to note that a Touhy request can only be made once a lawsuit is active and has moved into the discovery phase. Unlike a FOIA request, a Touhy request is more detailed, granting access to more information, but it also requires a pending lawsuit.

Whistleblowers in Healthcare Fraud

In healthcare fraud cases, whistleblowers frequently submit Touhy requests to the Center for Medicare and Medicaid Services (CMS), often raising HIPAA concerns.

When making these requests, it's crucial to obtain a qualified protective order (QPO), which helps ensure that HIPAA-protected information is properly disclosed and provides CMS with written confirmation that a court has issued a QPO in the case. A qualified protective order explicitly prohibits:

• Parties are prohibited from using or disclosing protected health information outside of litigation.
• Mandates the return or destruction of protected information once the proceedings conclude.
• Guarantees that all sensitive information is stored securely under seal and cannot be accessed by the public.

Government Agencies Subject to Touhy Requests

Touhy requests can be made to many federal agencies, each with its own regulations for disclosing information. Here are some examples of such agencies:

• Federal Bureau of Investigation (FBI): A request to the FBI may include seeking 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 can be vital in drug-related cases.
• Internal Revenue Service (IRS): In cases involving suspected financial crimes or tax fraud, records or testimony from the IRS may be requested.
• Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF): Evidence or testimony from the ATF may be relevant in cases involving violations of 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): Evidence or records from the EPA could be required in cases of environmental violations.
• Office of the Inspector General (OIG): When the OIG receives a subpoena requesting an SSA-OIG employee to testify or produce records obtained during official duties, it will handle it as a Touhy request under 20 C.F.R. Part 403 regulations. Typically, these rules 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 is a Touhy Request Necessary?

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

• Obtaining Evidence for Your Defense: If federal records, like digital evidence from the FBI regarding alleged online criminal activity, can bolster your case, a Touhy request might help obtain exonerating materials or reveal gaps in the prosecution's argument.
• Securing Expert Testimony: Federal agencies utilize specialists such as IRS auditors, whose testimony can uncover flaws in audits or errors in the prosecution's findings.
• Challenging the Prosecution's Evidence: When the prosecution depends on agency reports, a Touhy request can secure raw data or internal documents, helping your defense spot weaknesses or inconsistencies.
• Investigating Chain of Custody Issues: In cases involving physical evidence, submitting a Touhy request to agencies such as the DEA or ATF can provide clarity on how the evidence was managed and whether proper protocols were adhered to.
• Building a Case of Government Misconduct: If procedural errors or abuses happen during an investigation, a Touhy request may reveal misconduct, which could result in evidence being excluded or charges being dismissed.

How to Challenge Touhy Requests

While Touhy requests can be effective, they are often challenging to implement. Federal agencies tend to be hesitant in releasing information, especially if it might disrupt operations, breach confidentiality, or interfere with ongoing investigations.

Furthermore, agencies might reject requests they deem too broad, irrelevant, or burdensome. A proficient federal criminal defense lawyer knows how to craft a Touhy request carefully.

This requires clearly demonstrating the relevance and importance of the requested information to your case. The lawyer can also contest an agency's refusal to provide information by seeking court intervention when needed.

For a case evaluation, contact our criminal defense law firm at Eisner Gorin LLP.