Show Me the Evidence: How Whistleblowers Can Obtain Information from the Federal Government Through Touhy Requests
What is a Touhy Request?
A Touhy request, named after the Supreme Court case U.S. ex rel. Touhy v. Ragen, is required when any official information, including witnesses and documents, is sought for litigation purposes when the United States Government is not a party to the litigation, including in declined qui tam cases, where the U.S. Government is the real party in interest. Touhy requests are similar to subpoenas that would normally be sent to non-party witnesses but are instead sent to the appropriate agency from which information is sought in the form of a detailed letter.
Why are Touhy Requests Important?
Discovery (the process of formally requesting and obtaining evidence) from a government agency requires that the particular agency’s Touhy regulations must be followed. It is important to remember that each agency has its own Touhy regulations, so the process might vary depending on who you are seeking information from. The regulations cover the specifics on how to serve the Touhy request to the agency, who to serve the request to, and other agency-specific requirements. Some agencies even have a person designated specifically to receive Touhy requests. Be sure to always check with the relevant agency’s requirements before sending a Touhy request.
What Does a Touhy Request Look Like?
A Touhy request is sent in a letter form and must include all the required information outlined in the applicable agency regulation. You should also enclose a subpoena with the specific document requests and topics of testimony, if you are also seeking testimony. The letter should the information that is required under the relevant regulations, as well as information to address the bases for which the Government will frequently use as a basis to object the request. For example, to avoid objections based on relevance and burden, it is important to outline for the Government why and how the information sought is relevant, and that the information is not available from any other party or non-party source.
Whistleblowing Healthcare Fraud? Don’t Forget About HIPAA!
Whistleblowers in healthcare fraud cases often need to submit Touhy requests to the Center for Medicare and Medicaid Services (CMS). This can raise HIPAA concerns and objections. When making such a request, it is important to secure a qualified protective order (QPO), which is one of the ways to satisfy disclosure of information protected by HIPAA, and provide CMS with written assurances that the court has entered a QPO in the case. A qualified protective order prohibits parties from using or disclosing protected health information outside of litigation, requires that the protected information be returned or destroyed at the end of the proceedings, and ensures that all protected information is filed under seal and unavailable to the public.
What Sort of Information Should be Included?
A Touhy request letter should contain a variety of information, including:
– The requisite Touhy regulation for the particular agency, and a statement that the request is being made in accordance with it
– A statement that the United States is not a party to the case, and is not reasonably anticipated to be one
– A brief explanation of the factual and procedural history of the case
– It can be useful to enclose a copy of the complaint for this
– A list of requests for all documents and information
– Make this as narrow and specific as possible
– A statement that the information requested is relevant to the case, including a brief explanation as to why
– An explanation why disclosure of the requested information is warranted
– A statement that you intend to pay in advance for all expenses and costs of searching for and producing the information
– An explanation that the information is not available by other means or from other sources
– An explanation that responding to the request would not disrupt official duties
– A reasonable proposed deadline for the information to be given to you
Including this information helps to ensure that all requirements are met and lessens the likelihood that the Government objects to the request.
What’s Next?
Once you’ve submitted your Touhy request, the Government can start searching for the information you are looking for. The agencies often have to parse through a large volume of data, so an instantaneous turnaround time is typically not feasible. It typically takes months to receive the requested documents. During this time, it is important to keep in contact with the agency throughout the process and work diligently with them to ensure you get the right information in a reasonable timeframe.
It is important to note that a Touhy request can only be issued once a lawsuit is pending and has entered the discovery phase. A Touhy request is not the same as a FOIA request, as it is often more in-depth, allows access to additional information, and requires that a lawsuit be pending.
Kandis L. Kovalsky is a Member of Kang Haggerty.
