There are three possible situations that can arise after consultation when there is disagreement on release or agreement on the appropriateness of not authorizing disclosure of the information sought through the demand.

1. A. If the attorney in charge of the case believes that disclosure is not appropriate because of the factors set forth in 28 C.F.R. § 16.26, but the originating component believes that disclosure is appropriate, the regulations provide for higher level review. This requires that the attorney in charge of the case refer the demand to the Assistant Attorney General in charge of the division responsible for the case or matter being litigated, which is usually accomplished through that division’s Touhy Officer. See 28 C.F.R. § 16.23(a). The options open to that division on referral will be discussed later in this section.
2. B. If the attorney for the government believes that disclosure is appropriate under the factors set forth in 28 C.F.R. § 16.26, but, after consultation, the originating component takes the position that disclosure should not take place, a sensitive decision has to be made by the attorney in charge of the case, usually in consultation with his/her immediate supervisor and his/her component’s Touhy Officer. Clearly, under the regulations, 28 C.F.R. § 16.23, the assigned attorney in charge of the case can authorize disclosure despite the views of the originating component and without higher level review if in that attorney’s judgment disclosure is appropriate under § 16.26(a), none of the factors in § 16.26(b) exist, and disclosure is necessary or desirable to the discharge of his or her official duties. He/she can also refer the matter for higher level review and decision by the division that supervises the case or matter in litigation. See 28 C.F.R. § 16.23(b). The decision will depend on many factors, a number of which may well be unique to the individual case. As a rule of thumb, attorneys ought to give some deference to the views of the originating component, especially if that component's decision is based on its belief that a factor set forth in 28 C.F.R. § 16.26(b) is present. The attorney should seek guidance in such cases from his/her immediate supervisor and his/her component’s Touhy Officer. There are no hard and fast rules, and the attorney, as noted, does retain ultimate authority under the regulations to authorize disclosure despite the originating component's objections. It should also be noted that pursuant to 28 C.F.R. § 16.26(d), the Assistant Attorney General in charge of each division is free to issue any instructions or to adopt any supervisory practices consistent with the regulations that would help foster consistent application of the standards promulgated and the other requirements of the regulations. In the context of this type of disagreement, care should be taken before overruling an originating component especially when the division in question has not issued an instruction in its supervisory capacity supporting such an overruling.
3. C. If both the attorney in charge of the case or matter and the component agree that declining to authorize disclosure is appropriate, the matter may be referred to the Assistant Attorney General in charge of the division that supervises the case or matter in litigation, through that division’s Touhy Officer. See28 C.F.R. § 16.23(a).

Once a demand has been referred for higher level review, the Assistant Attorney General in charge of the division may then take the same actions as can be taken in cases in which the United States is not a party, i.e.:

1. 1. Authorize disclosure based on the factors in 28 C.F.R. § 16.26;
2. 2. Authorize the attorney in charge of the case to seek to limit the demand through negotiations, objections, or a motion to quash the demand if that has not already been done; or
3. 3. Upon failure of all appropriate steps to limit or quash the demand, refer the matter to the Deputy Attorney General or Associate Attorney General for final resolution. 28 C.F.R. § 16.24(e).

[Updated April 2018]