# 103.23 Factors in determining whether to disclose information pursuant to a demand.
(a) *General considerations.* In authorizing disclosures pursuant to a proper demand for CBP information, one which complies with the provisions of § 103.22(c), the Chief Counsel should consider the following factors:
(1) Whether the disclosure would be appropriate under the relevant substantive law concerning privilege;
(2) Whether the disclosure would be appropriate under the rules of procedure governing the case or matter in which the demand arose; and,
(3) Whether the requesting party has demonstrated that the information requested is:
(i) Relevant and material to the action pending, based on copies of the summons and complaint that are required to be attached to the subpoena *duces tecum* or other demand;
(ii) Genuinely necessary to the proceeding, *i.e.,* a showing of substantial need has been made;
(iii) Unavailable from other sources; and,
(iv) Reasonable in its scope, *i.e.,* the documents, information, or testimony sought are described with particularity.
(4) Whether consultation with the originating component requires that the Chief Counsel make a separate determination as to the disclosure of the information requested.
(b) *Circumstances where disclosure will not be made.* Among the demands in response to which disclosure will not be authorized by the Chief Counsel are those demands with respect to which any of the following factors exist:
(1) Disclosure would violate a treaty, statute (such as the Privacy Act, 5 U.S.C. 552a, the Trade Secrets Act, 18 U.S.C. 1905, or the income tax laws, 26 U.S.C. 6103 and 7213), or a rule of procedure, such as the grand jury secrecy rule, Fed.R.Crim.Proc. rule 6(e) (18 U.S.C.App.);
(2) Disclosure would violate a specific regulation;
(3) Disclosure would reveal classified or confidential information;
(4) Disclosure would reveal a confidential source or informant;
(5) Disclosure would reveal investigatory records compiled for law enforcement purposes, interfere with enforcement proceedings, or disclose investigative techniques and procedures;
(6) Disclosure would improperly reveal confidential commercial information without the owner's consent (*e.g.,* entry information);
(7) Disclosure relates to documents which were produced by another agency or entity;
(8) Disclosure would unduly interfere with the orderly conduct of CBP business;
(9) CBP has no interest, records, or other official information regarding the matter in which disclosure is sought;
(10) There is a failure to make proper service upon the United States; or
(11) There is a failure to comply with federal, state, or local rules of discovery.
[61 FR 19838, May 3, 1996, as amended at 78 FR 70856, Nov. 27, 2013]