Supporting statement for 3133-0146 2016

SUPPORTING STATEMENT
For a Collection of Information by the National Credit Union Administration
Production of Non-public Records and Testimony
of Employees in Legal Proceedings (Touhy Request)
OMB Number 3133-0146
A. JUSTIFICATION
1. Circumstances Necessitating the Collection of Information
12 CFR Part 792, Subpart C, requires anyone requesting NCUA non-public records for
use in legal proceedings, or the testimony of NCUA personnel in legal proceedings to
provide NCUA with information regarding the requester’s grounds for the request. This
process is also known as a “Touhy Request” (see U.S. ex rel. Touhy v. Ragen, 340 U.S.
462, 71 S.Ct. 416, 95 L.Ed. 417 (1951)). The information collected will help the NCUA
decide whether to release non-public records or permit employees to testify in legal
proceedings.
NCUA regulations also require an entity or person in possession of NCUA records to notify
the NCUA upon receipt of a subpoena for those records. The NCUA requires this notice
to protect its records and, when necessary, intervene in litigation or file an objection to the
disclosure of its confidential information in the appropriate court or tribunal. Case law
establishes the NCUA’s entitlement to receive this notice.
The following is a discussion of the NCUA’s basis in statutory and case law for maintaining
and, in certain, appropriate circumstances, releasing NCUA non-public records for use in
legal proceedings and authorizing testimony of NCUA personnel, and for prescribing its
regulatory procedures.
The NCUA maintains the non-public nature of certain information pursuant to the bank
examination exemption of the Freedom of Information Act (FOIA) [5 U.S.C. 522 (b)(8)];
judicial interpretation of the bank examination privilege (see Schreiber v. Society for
Savings Bancorp, Inc., 11 F.3d 217 (D.C. Cir. 1993); In Re: Subpoena Served Upon the
Comptroller of the Currency and the Secretary of the Board of Governors of the Federal
Reserve System, 967 F.2d 630 (D.C. Cir. 1992) (discussing the bank examination
privilege, which is analogous to the examination exemption under FOIA); and other
agency privileges, such as the deliberative process and attorney-client privileges.
Accordingly, and pursuant to 5 U.S.C. 301, the NCUA has established procedures, in 12
CFR Part 792, Subpart C, for the production of non-public NCUA records for use in legal
proceedings and testimony of NCUA personnel in legal proceedings. See Moore v.
Armour Pharmaceutical Co., 927 F.2d 1194 (11th Cir. 1991). In addition, the regulation
ensures that the NCUA will receive notice of requests and subpoenas for non-public
NCUA information in possession of third parties as was considered “advisable if not

necessary” by the United States Court of Appeals for the Sixth Circuit in In re Bankers
Trust, 61 F.3d 465, 470 (6th Cir. 1995).
2. Purpose and Use of the Information Collection
The NCUA will use the information to process requests for non-public records and
testimony and to determine if sufficient grounds exist for NCUA to release the requested
records or authorize the requested testimony.
3. Consideration Given to Information Technology
NCUA interprets the governing regulation, 12 CFR 792.45, as permitting the use of email
to submit Touhy requests, provided they are properly addressed to the General Counsel or
to the Inspector General and received by the respective office within NCUA.
4. Duplication
This information collection does not duplicate any other information already collected.
5. Reducing Burden on Small Entities
The requirement to file a request and the information required in such a request do not
vary by the size of the entity making the request. All of the required information is
necessary for the NCUA to make a determination whether to provide the requested
information or testimony.
6. Consequences of Not Conducting Collection
The information required by the regulation is necessary for NCUA to make informed
decisions regarding the release of non-public information or authorizing the requested
testimony. In the absence of this information such decisions would run the risk of being
made arbitrarily and without full consideration of the potential harm from such
disclosures.
7. Inconsistencies with Guidelines in 5 CFR 1320.5(d)(2)
None – the collection is consistent with the guidelines.
8. Consultations Outside the Agency
Notice of the proposed information collection and request for public comment was
published in the Federal Register with a 60-day comment period on August 1, 2016 at 81
FR 50564. No public comments were received.
9. Payment or Gifts.

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NCUA will not provide any payment or gift to respondents.
10. Confidentiality
There are no assurances of confidentiality other than those provided by law.
11. Questions of a Sensitive Nature
There are no questions of a sensitive nature.
12. Burden of Information Collection
The NCUA estimates that it will take an average of two hours to prepare a written request.
The NCUA currently receives less than twenty requests per year so the total annual burden
is estimated to be no more than 40 hours. Assuming a loaded wage rate of $75 per hour,
we estimate the total burden to respondents to be less than $3,000 per year.
13. Capital, Startup, and Operation and Maintenance Costs
None – requests will only be submitted by parties engaged in litigation. It is anticipated
that requestors will not need to make recurring requests. For that reason, requestors
should not incur capital, startup or operation and maintenance costs.
14. Cost to the Federal Government
Each request received results in a review by NCUA of whether it appropriate to produce
the information requested. Documents must be located, reproduced and shared. In some
cases in person testimony is required. We conservatively estimate that this takes eight
hours per request – 160 hours annually. This results in an estimated annual cost to the
Federal Government of $12,800.
15. Reason for Change in Burden
This is an extension, without change, to a previously approved collection.
16. Information Collection Planned for Statistical Purposes
There are no plans to publish results.
17. Display of OMB Expiration Date
There are no traditional collection instruments associated with this collection of
information (e.g. forms). The OMB control number and expiration date associated with
this PRA submission will be displayed on the Federal government’s electronic PRA
docket at www.reginfo.gov.

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18. Exceptions to Certification
This collection complies with the requirements in 5 CFR 1320.9.

B. COLLECTIONS OF INFORMATION EMPLOYING STATISTICAL
METHODS
This collection does not involve statistical methods.

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