Do You Know About the “Touhy” Regulations?

Padre v. MVM, Inc., 2025 WL 202303 (S.D. Cal. Jul. 17, 2025), applies the “Touhy” Regulations to a federal subpoena directed to a government contractor.

Plaintiffs filed this action on July 23, 2024, on behalf of themselves and a class of similarly situated people, alleging that Defendant violated Plaintiffs’ constitutional rights and various laws by providing services under a contract with the Department of Homeland Security (“DHS”) to facilitate transportation of unaccompanied alien children held in U.S. Immigrations and Customs Enforcement (“ICE”) custody as part of the family separation policy in place during the first Trump Administration.

Plaintiffs filed a motion to compel against MVM and the government.  The court tentatively granted it and set a hearing date.  At issue were contracts with ICE.

Defendant [MVM] contends that it is “prohibited from complying with plaintiffs’ requests unless and until plaintiffs comply with DHS’ Touhy regulations in submitting their request to ICE, and ICE authorizes MVM’s disclosure to plaintiffs….  The government argues that Plaintiffs’ motion should be denied because Plaintiffs “made no attempt to comply with the Touhy process.” … The government contends that “[f]ailure to engage in the Touhy process renders a discovery request unenforceable.”

The court wrote:

The Federal Housekeeping Statute, 8 U.S.C. § 301, authorizes federal agencies to issue regulations governing agency information….  Regulations that are promulgated pursuant to § 301 are often referred to as “Touhy” regulations following the Supreme Court’s decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). DHS has promulgated Touhy regulations at 6 C.F.R. §§ 5.41–5.49. Section 5.41(a) specifies that these regulations set forth the procedures that should be followed with respect to demands directed to DHS “or to any Department employee or former employee in connection with federal or state litigation arising out of or involving the performance of official activities of the Department.” Section 5.41(b) includes “contractors” within the definition of “employee” for the purpose of the regulations. Section 5.43(a) states that only the Office of General Counsel is authorized to accept service of “demands or requests to the Secretary[ ] … or its employees,” for information that “any Department employee acquired in the course and scope of the performance of his official duties.” If a demand for information is served upon an “employee” instead of the Office of General Counsel, however, sections 5.43(b) and (c) require the employee to “immediately forward a copy” of the demand to the Office of General Counsel. Section 5.44 prohibits an employee from producing any information in response to the demand without the authorization of the Office of General Counsel. With respect to the contents of the demand, section 5.45(a) states that it should “set forth in writing, and with as much specificity as possible, the nature and relevance of the official information sought,” but does not otherwise require any specific format for the demand. [Emphasis added].

The court added: “Under these regulations, as a DHS contractor, Defendant [MVM] bears as much responsibility as Plaintiffs to provide Plaintiffs’ discovery requests to DHS. See 6 C.F.R. § 5.43(b), (c). Defendants fulfilled this obligation on June 17, 2025, when they provided the requests to counsel for the government.”

The MVM court ruled:

The government’s contention that Plaintiffs have not complied with the regulations rings hollow. Not only has the government received the requests; it has told Defendant “explicitly” that it will not allow production of information in response to the requests…. A reasonable reading of Plaintiffs’ discovery requests makes clear that Plaintiffs are seeking information related to the contractual relationship between Defendant and DHS…. It is difficult to understand how Plaintiffs could be more specific in their requests, given that they are outside this contractual relationship.

For these reasons, the Court tentatively finds that the requirements of the Touhy regulations have been met.

Id. at *3-4.

The MVM court rejected a government procedural argument, stating: “[C]ourts should assess a government agency’s refusal to submit to discovery based on Touhy regulations according to the Federal Rules of Civil Procedure, rather than through a separate APA action.”

It held that the government’s confidentiality objections could be addressed by a protective order.  “This is true even for production of personal information regarding the immigration files of putative class members.”

The MVM court permitted supplemental briefs and scheduled a hearing for July 31^st.