4.35—Consideration of requests.

(a) In general— (1) OCC discretion. The OCC decides whether to release non-public OCC information based on its weighing of all appropriate factors including the requestor's fulfilling of the requirements enumerated in § 4.33. Each decision is at the sole discretion of the Comptroller or the Comptroller's delegate and is a final agency decision. OCC action on a request for non-public OCC information exhausts administrative remedies for discovery of the information.

(2) Bases for denial. The OCC may deny a request for non-public OCC information for reasons that include the following:

(i) The requester was unsuccessful in showing that the information is relevant to the pending matter;

(ii) The requester seeks testimony and the requestor did not show a compelling need for the information;

(iii) The request arises from an adversarial matter and other evidence reasonably suited to the requester's need is available from another source;

(iv) A lawsuit or administrative action has not yet been filed and the request was made in connection with potential litigation; or

(v) The production of the information would be contrary to the public interest or unduly burdensome to the OCC.

(3) Additional information. A requester must submit a complete request. The OCC may require the requester to provide additional information to complete a request. Consistent with the purposes stated in § 4.31, the OCC may inquire into the circumstances of any case underlying the request and rely on sources of information other than the requester, including other parties.

(4) Time required by the OCC to respond. The OCC generally will process requests in the order in which they are received. The OCC will notify the requester in writing of the final decision. Absent exigent or unusual circumstances, the OCC will respond to a request within 60 days from the date that the OCC receives a request that it deems a complete request. Consistent with § 4.33(a)(2), the OCC weighs a request to respond to provide information in less than 60 days against the unfairness to other requesters whose pending requests may be delayed and the burden imposed on the OCC by the expedited processing.

(5) Notice to subject national banks. Following receipt of a request for non-public OCC information, the OCC generally notifies the national bank that is the subject of the requested information, unless the OCC, in its discretion, determines that to do so would advantage or prejudice any of the parties in the matter at issue.

(b) Testimony. (1) The OCC generally will not authorize a current OCC employee to provide expert or opinion evidence for a private party.

(2) The OCC may restrict the scope of any authorized testimony and may act to ensure that the scope of testimony given by the OCC employee adheres to the scope authorized by the OCC.

(3) Once a request for testimony has been submitted, and before the requested testimony occurs, a party to the relevant case, who did not join in the request and who wishes to question the witness beyond the scope of testimony sought by the request, shall timely submit the party's own request for OCC information pursuant to this subpart.

(4) The OCC may offer the requester the employee's written declaration in lieu of testimony.

(c) Release of non-public OCC information by others. In appropriate cases, the OCC may respond to a request for information by authorizing a party to the case who is in possession of non-public OCC information to release the information to the requester. An OCC authorization to release records does not preclude the party in possession from asserting its own privilege, arguing that the records are not relevant, or asserting any other argument for which it has standing to protect the records from release.

Code of Federal Regulations

Effective Date Note: At 75 FR 75576, Dec. 3, 2010, § 4.35 was amended by removing the word “or” at the end of paragraph (a)(2)(iv), removing the period in paragraph (a)(2)(v), adding in lieu thereof “; or” and adding a new paragraph (a)(2)(vi), effective Jan. 3, 2011. For the convenience of the user, the added text is set forth as follows: § 4.35 Consideration of requests. (a) * * * (2) * * * (vi) When prohibited by law. Pt. 4, Subpt. C, App. A Appendix A to Subpart C of Part 4 —Model Stipulation for Protective Order and Model Protective Order I. Model Stipulation CASE CAPTION Model Stipulation for Protective Order Whereas, counsel for ______ have applied to the Comptroller of the Currency (hereinafter “Comptroller”) pursuant to 12 CFR part 4 , Subpart C, for permission to have made available, in connection with the captioned action, certain records; and Whereas, such records are deemed by the Comptroller to be confidential and privileged, pursuant to 12 U.S.C. 481 ; 5 U.S.C. 552(b)(8) ; 18 U.S.C. 641, 1906 ; and 12 CFR 4.12 , and part 4 , Subpart C; and Whereas, following consideration by the Comptroller of the application of the above described party, the Comptroller has determined that the particular circumstances of the captioned action warrant making certain possibly relevant records as denoted in appendix “A” to this Stipulation [records to be specified by type and date] available to the parties in this action, provided that appropriate protection of their confidentiality can be secured; Therefore, it is hereby stipulated by and between the parties hereto, through their respective attorneys that they will be bound by the following protective order which may be entered by the Court without further notice. Dated this ______ day of _______, 19__. Attorney for Plaintiff Attorney for Defendant II. Model Protective Order CASE CAPTION Model Protective Order Whereas, counsel for ______ have applied to the Comptroller of the Currency (hereinafter Comptroller”) pursuant to 12 CFR part 4 , Subpart C, for permission to have made available, in connection with the captioned action, certain records; and Whereas, such records are deemed by the Comptroller to be confidential and privileged, pursuant to 12 U.S.C. 481 ; 5 U.S.C. 552(b)(8) ; 18 U.S.C. 641, 1906 ; and 12 CFR 4.12 , and part 4 , Subpart C; Whereas, following consideration by the Comptroller of the application of the above described party, the Comptroller has determined that the particular circumstances of the captioned action warrant making certain possibly relevant records available to the parties in this action, provided that appropriate protection of their confidentiality can be secured; Now, Therefore, it is Ordered That: 1. The records, as denoted in appendix “A” to the Stipulation for this Protective Order, upon being furnished [or released for use] by the Comptroller, shall be disclosed only to the parties to this action, their counsel, and the court [and the jury]. 2. The parties to this action and their counsel shall keep such records and any information contained in such records confidential and shall in no way divulge the same to any person or entity, except to such experts, consultants and non-party witnesses to whom the records and their contents shall be disclosed, solely for the purpose of properly preparing for and trying the action. 3. No person to whom information and records covered by this Order are disclosed shall make any copies or otherwise use such information or records or their contents for any purpose whatsoever, except in connection with this action. 4. Any party or other person who wishes to use the information or records or their contents in any other action shall make a separate application to the Comptroller pursuant to 12 CFR part 4 , Subpart C. 5. Should any records covered by this Order be filed with the Court or utilized as exhibits at depositions in the captioned action, or should information or records or their contents covered by this Order be disclosed in the transcripts of depositions or the trial in the captioned action, such records, exhibits and transcripts shall be filed in sealed envelopes or other sealed containers marked with the title of this action, identifying each document and article therein and bearing a statement substantially in the following form:

Code of Federal Regulations 120

CONFIDENTIAL Pursuant to the Order of the Court dated ______ this envelope containing the above-identified papers filed by (the name of the party) is not to be opened nor the contents thereof displayed or revealed except to the parties to this action or their counsel or by further Order of the Court. 6. FOR JURY TRIAL: Any party offering any of the records into evidence shall offer only those pages, or portions thereof, that are relevant and material to the issues to be decided in the action and shall block out any portion of any page that contains information not relevant or material. Furthermore, the name of any person or entity contained on any page of the records who is not a party to this action, or whose name is not otherwise relevant or material to the action, shall be blocked out prior to the admission of such page into evidence. Any disagreement regarding what portion of any page that should be blocked out in this manner shall be resolved by the Court in camera, and the Court shall decide its admissibility into evidence. 7. At the conclusion of this action, all parties shall certify to the Comptroller that the records covered by this Order have been destroyed. Furthermore, counsel for ______, pursuant to 12 CFR 4.39(c) , shall retrieve any records covered by this Order that may have been filed with the Court. So Ordered: Judge Date [60 FR 57322, Nov. 15, 1995, as amended at 64 FR 29217, June 1, 1999]