How to File a Touhy Request: Regulations, Service, and Denials

To file a Touhy request, identify the specific federal agency’s Touhy regulations in the Code of Federal Regulations, prepare a written submission that identifies your case, names the employee or records you need, describes the information sought, explains its relevance, and shows you cannot get it elsewhere, then serve the package on the agency’s designated legal office within its minimum notice window. The process exists because the Supreme Court held in United States ex rel. Touhy v. Ragen that a federal employee may refuse to produce agency records or testimony when instructed by the head of the department, so an ordinary subpoena will not do the work.¹ A properly filed request is how you get past that.

Before starting, confirm you are using the right tool. A Freedom of Information Act request reaches existing records available to any member of the public, but it cannot compel a federal employee to testify, sit for a deposition, or authenticate documents at trial.² Touhy is the litigation channel and covers both documents and live testimony. The two processes run independently, and many litigants file both.³

Locate the Agency’s Touhy Regulations

Each federal department publishes its own Touhy rules, and they are not interchangeable. Submission addresses, required contents, deadlines, and evaluation criteria all vary. A few of the larger agency locations:

Inspectors general and independent offices maintain their own regulations as well. To find the right set, search the Electronic Code of Federal Regulations at ecfr.gov for the agency name together with phrases like “production of testimony,” “official information in litigation,” or “Touhy.” Many agencies also post the procedure on their Office of General Counsel webpage. Sending a request drafted to one agency’s rules to a different agency is a common way to lose weeks.

Build the Written Request

Requirements vary in the details, but the core content is consistent across agencies. Under DOJ’s regulations, a party seeking oral testimony must supply an affidavit, or at minimum a written statement, that summarizes the testimony sought and explains its relevance.⁴ Document requests follow the same pattern: a written summary of what you need and why it matters.⁶

Your submission should cover:

The full case caption, the court or tribunal, and the docket or case number.
The name of the employee whose testimony or records you need, or the position if you do not know the name.
A detailed description of the testimony or documents. Vague requests get denied. Describe documents specifically enough that agency staff can locate them without an open-ended search.
A relevance statement explaining how the information ties to the legal issues in dispute.
A showing that you cannot reasonably obtain the same information through other discovery methods. This is the requirement most requesters underestimate, and agencies want to see that alternatives have been exhausted before pulling their employees into a private case.³

Some agencies publish standardized request forms through their Office of General Counsel. Using the form when one exists eliminates formatting objections. Whether you use a form or draft your own submission, some agencies require it to be notarized and signed under oath; even when they don’t, signing under oath strengthens the request.

Anticipate the grounds agencies use to refuse. DOJ’s rules at 28 CFR § 16.26 mandate denial when disclosure would violate a statute (such as tax confidentiality laws), reveal classified information, expose a confidential source or informant, interfere with ongoing law enforcement proceedings, or improperly reveal trade secrets.⁴ If your request seeks records about a third party, the Privacy Act of 1974 generally bars disclosure without that person’s written consent, subject to twelve statutory exceptions.⁷ Internal deliberations (draft memos, policy recommendations, pre-decisional analyses) are protected by the deliberative process privilege. Address these issues in the submission where they apply, and be prepared for the agency to condition disclosure on a protective order or confidentiality agreement.³ Beyond the categorical bars, DOJ’s Deputy or Associate Attorney General will authorize disclosure unless doing so would be unwarranted after weighing the procedural and substantive considerations, and other agencies apply similar balancing tests under their own rules.

Minimum Notice Deadlines

Agencies need lead time to evaluate the request, locate the right people, and coordinate internally. The Department of the Army requires litigation requests to arrive at least 14 days before the desired testimony or production date.⁵ Other agencies set their own windows, ranging from two weeks to 45 days or more. Submitting the week before trial almost guarantees failure, and urgency is not a recognized exception. Check the specific regulation and build your litigation calendar around it.

Fees

Agencies may charge for staff search time plus per-page duplication, and many calculate these fees using the same rate structure that governs FOIA requests.³ Include a statement that you will pay reasonable processing costs so the agency does not have to pause the work to contact you about it.

Where and How to Serve the Request

Serve the completed package on the agency’s designated legal office, not on the individual employee. For DOJ demands where the United States is not a party, the submission goes to the U.S. Attorney for the district where the court or issuing authority is located.⁴ Other agencies route requests to their Office of General Counsel or Office of the Solicitor. SIGAR, for example, requires all demands to be delivered to the General Counsel’s physical address and served in accordance with the Federal Rules of Civil Procedure or applicable state procedure.⁸

If you have also served a subpoena directly on a federal employee, you still need to file the Touhy request separately. The employee is required to forward the subpoena to the agency’s legal office immediately, and the agency will not authorize compliance until the Touhy process is complete.⁸ Send the package by certified mail with return receipt for a verifiable delivery record. Some agencies accept submissions through secure electronic portals or designated email addresses, which can shorten the timeline.

After receipt, the agency’s legal office will typically acknowledge the request and may assign a tracking number or point of contact. Response times vary. The SSA Office of Inspector General states that requests are reviewed “promptly,” but complex requests involving multiple offices, classified material, or ongoing investigations can take considerably longer.

If You Need Opinion or Expert Testimony, Say So

Even when a Touhy request is approved, the agency will typically limit the employee to factual testimony about what they personally observed or did in their official capacity. Most agencies flatly prohibit opinion and expert testimony without special authorization. The Department of Veterans Affairs bars personnel from providing opinion or expert testimony about official VA subjects unless the requester demonstrates “exceptional circumstances” and the testimony would not be adverse to the agency’s interests.⁹ The State Department requires a showing of “exceptional need or unique circumstances” plus a finding that the testimony would not harm U.S. interests.¹⁰

The threshold is high, and these requests are rarely granted. If you need opinion rather than factual testimony, flag it in your Touhy request from the start and make the case for exceptional circumstances. Attempting to draw opinions out of a federal witness at deposition without prior authorization will result in the witness refusing to answer, and the agency will back the refusal.

Former Federal Employees Are Still Covered

Touhy obligations do not lift when someone leaves government service. DOJ’s rules define “employee” to include former Department employees when the demand seeks testimony about information acquired during their time at the agency.⁶ A retired FBI agent or former federal prosecutor still cannot freely testify about what they saw or did in their official capacity without agency authorization. Upon receiving a subpoena, they must notify the U.S. Attorney’s office for the relevant district, just as a current employee would. If you plan to depose a former federal employee about their government work, file the Touhy request with the agency where they served.

If the Agency Denies the Request

A denial will come in writing with the regulatory or legal basis identified. The primary route to challenge it is a lawsuit in federal court under the Administrative Procedure Act, where the requester bears the burden of showing the agency’s refusal was arbitrary and capricious in light of its own regulations.⁶

The standard of review is not fully settled. A plurality of federal circuits apply the APA’s deferential standard, meaning the agency’s decision stands unless it had no reasonable basis. The D.C. Circuit has held that in federal-court actions a district court can review nonparty subpoenas against federal agencies under the ordinary Federal Rules of Civil Procedure, a less deferential standard.⁶ Check governing circuit precedent before filing.

A successful challenge often results in the court directing the agency to reconsider under the correct framework, rather than ordering production outright. Denials are difficult to overturn, which is why the initial submission carries so much weight. A thorough relevance statement and a genuine showing that the information is unavailable elsewhere are the two places where careful drafting most often makes the difference between authorization and refusal.

1
Legal Information Institute. United States ex rel. Touhy v. Ragen
2
FOIA.gov. Freedom of Information Act – Frequently Asked Questions
3
Federal Register. Production or Disclosure of Official Information in Legal Proceedings
4
eCFR. 28 CFR Part 16 Subpart B – Production or Disclosure in Response to Demands
5
eCFR. 32 CFR Part 97 – Release of Official Information in Litigation and Presentation of Witness Testimony by DoD Personnel
6
United States Department of Justice. Justice Manual 1-6.000 – DOJ Personnel As Witnesses
7
U.S. Department of Justice. Overview of the Privacy Act – 2020 Edition – Conditions of Disclosure to Third Parties
8
eCFR. 5 CFR 9302.1 – SIGAR Touhy Regulations
9
eCFR. 38 CFR 14.808 – Expert or Opinion Testimony
10
eCFR. 22 CFR 172.9 – Prohibition on Providing Expert or Opinion Testimony