OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

OFFICE OF GENERAL COUNSEL

WASHINGTON, DC 20511

November 28, 2023

VIA ELECTRONIC MAIL

Harry W. MacDougald
Two Ravinia Drive, Suite 1600
Atlanta, Georgia 30346
hmacdougald@CCEDlaw.com

Re: Touhy request in In Re: Jeffrey B. Clark.,

D.C. Board of Professional Responsibility,
Board Docket No.22-BD-039, Disciplinary Docket No. 2021-D193

Dear Counsel:

The Office of the Director of National Intelligence (ODNI) has reviewed your
request, dated October 29, 2023, for the testimony of former ODNI Director John Ratcliffe
and the production of certain documents in the above-referenced D.C. bar disciplinary
matter. The ODNI declines to authorize your request because it does not comply with
applicable agency regulations.

Your request is governed by the ODNI’s Touhy regulations, issued pursuant to the
Federal Housekeeping Statute, 5 U.S.C. § 301, and United States ex rel. Touhy v. Ragen,
340 U.S. 462 (1951), set forth at 32 C.F.R. Part 1703. The ODNI’s Touhy regulations
prohibit current and former agency employees from producing or disclosing in legal or
administrative proceedings any information or material that is contained in ODNI files,
related to or based upon material contained in ODNI files or acquired by any ODNI
employee as part of that employee’s official duties or because of that employee’s
association with the ODNI. 32 C.F.R. §§ 1703.1, 1703.2, 1703.3. Pursuant to these
regulations, the ODNI is empowered to determine whether to provide information in
matters, such as this one, in which the government is not a party. See In re Boeh, 25 F.3d
761, 763 (9th Cir. 1994); Swett v. Schenk, 792 F.2d 1447, 1451 (9th Cir. 1986); Owens v.
Republic of Sudan, 374 F. Supp. 2d 1, 29 (D.D.C. 2005).

Under the ODNI’s Touhy regulations, the agency declines your request for the
testimony of former Director Ratcliffe. Section 1703.4(d) of the regulations requires the
party seeking oral or written testimony to provide “a reasonably detailed description of the
testimony sought in the form of an affidavit” or “a written statement if that is not feasible.”
This requirement allows ODNI officials to assess whether the testimony request is proper
and lawful. Your request does not contain sufficient detail to permit ODNI officials to
make this determination. In your request, you only briefly list broad categories of
testimony topics, without any details on the specific testimony sought or how this

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 OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
OFFICE OF GENERAL COUNSEL
WASHINGTON, DC 20511

testimony is relevant to the bar disciplinary proceedings or your client’s claims or defenses
in these proceedings.

On similar grounds, the ODNI also denies your request for four categories of
documents. You have requested (1) the draft and final Intelligence Community Assessment
about 2020 election issues that was shared with Mr. Clark; (2) the Analytic Ombudsman
letter and report to the Chair and Ranking Member of the Senate Intelligence Committee
dated January 6, 2021; (3) former Director Ratcliffe’s memo referenced in the October 23,
2023 Washington Post article titled “Intelligence Community Assessment: Foreign Threats
to the 2020 U.S. Elections”; and (4) responses to any FOIA requests that relate to the
foregoing documents. Your letter describes some of these documents as being publicly
available. To the extent any of these documents are publicly available, your request does
not indicate why ODNI is being requested to provide them. Moreover, your request
provides no explanation for how these documents relate to the bar disciplinary proceedings
or the claims or defenses therein. The ODNI’s Touhy regulations specify that the agency
must consider whether the applicable rules of discovery or procedure require production,
32 C.F.R. §§ 1703.4(c)(1), (c)(2), but your request identifies no basis for why the requested
intelligence documents are relevant to the bar disciplinary matter and would be allowed in
the proceedings.

In addition, ODNI denies your request for the documents and former Director
Ratcliffe’s testimony to the extent it seeks information that is classified or otherwise subject
to legal protection. Id. §§ 1703.4(c)(3), (c)(5), (c)(6), (c)(7) (requiring the ODNI to
consider whether complying with a request would violate a statute, regulation, Executive
Order, or agency policy, conflict with the agency’s responsibility to protect intelligence
sources and methods, or reveal classified information or state secrets). Some of the records
and testimony sought may be classified and/or subject to other privileges and protections.
See, e.g., 50 U.S.C. § 3024(i); 5 U.S.C. § 552(b).

Accordingly, the ODNI will neither produce the documents nor authorize the
requested testimony. If you have any questions about the foregoing, please feel free to
contact me.

Respectfully,

/s/ Glenn S. Greene

Glenn S. Greene
Chief, Litigation
Office of General Counsel