Subsection (a) of Section 16.26 identifies generally the areas of law that Department officials and attorneys should consider in deciding whether to make disclosures. That provision does not impose legal standards other than the applicable rules of the proceeding, including the rules of procedure and evidence, and the substantive law concerning privilege. Subsection (a) adopts a highly general approach, instead of attempting a detailed list of considerations, because the factors relevant to a particular demand vary widely with the nature of the demand.

The factors to be considered in whether to make a disclosure are twofold, and as noted, general in nature. First, the official making the decision is to consider whether the disclosure in question is appropriate under the rules of procedure governing the case or matter in which the demand arose. Second, he/she is to consider whether disclosure is appropriate under the relevant substantive law concerning privilege. These general factors are, of course, the same factors to be considered in providing the appropriate objections or filing the appropriate motions to quash. At the initial stages, release cannot be authorized unless the official making the determination is assured, inter alia, that the demanded disclosure is appropriate under these general Section 16.26(a) factors. See 28 C.F.R. § 16.24(b)(3).

Subsection (b) of Section 16.26 contains a number of very specific factors that set forth areas where disclosure should not be made. For a discussion of these factors, see the DOJ Organization and Functions Manual at 25.

[Updated April 2018]