5 U.S.C. § 574 — Confidentiality

Page 161 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 574 AMENDMENTS 1996—Subsec. (c). Pub. L. 104–320, § 7(b)(1), added sub- sec. (c) and struck out former subsec. (c) which related to power of Administrative Conference of the United States to establish and utilize standards for neutrals and to enter into contracts for services of neutrals. Subsec. (e). Pub. L. 104–320, § 7(b)(2), struck out ‘‘on a roster established under subsection (c)(2) or a roster maintained by other public or private organizations, or individual’’ after ‘‘contract with any person’’. 1992—Pub. L. 102–354 renumbered section 583 of this title as this section. § 574. Confidentiality (a) Except as provided in subsections (d) and (e), a neutral in a dispute resolution proceeding shall not voluntarily disclose or through dis- covery or compulsory process be required to dis- close any dispute resolution communication or any communication provided in confidence to the neutral, unless— (1) all parties to the dispute resolution pro- ceeding and the neutral consent in writing, and, if the dispute resolution communication was provided by a nonparty participant, that participant also consents in writing; (2) the dispute resolution communication has already been made public; (3) the dispute resolution communication is required by statute to be made public, but a neutral should make such communication public only if no other person is reasonably available to disclose the communication; or (4) a court determines that such testimony or disclosure is necessary to— (A) prevent a manifest injustice; (B) help establish a violation of law; or (C) prevent harm to the public health or safety, of sufficient magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the con- fidence of parties in future cases that their communications will remain confidential. (b) A party to a dispute resolution proceeding shall not voluntarily disclose or through dis- covery or compulsory process be required to dis- close any dispute resolution communication, un- less— (1) the communication was prepared by the party seeking disclosure; (2) all parties to the dispute resolution pro- ceeding consent in writing; (3) the dispute resolution communication has already been made public; (4) the dispute resolution communication is required by statute to be made public; (5) a court determines that such testimony or disclosure is necessary to— (A) prevent a manifest injustice; (B) help establish a violation of law; or (C) prevent harm to the public health and safety, of sufficient magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the con- fidence of parties in future cases that their communications will remain confidential; (6) the dispute resolution communication is relevant to determining the existence or meaning of an agreement or award that re- sulted from the dispute resolution proceeding or to the enforcement of such an agreement or award; or (7) except for dispute resolution communica- tions generated by the neutral, the dispute resolution communication was provided to or was available to all parties to the dispute res- olution proceeding. (c) Any dispute resolution communication that is disclosed in violation of subsection (a) or (b), shall not be admissible in any proceeding re- lating to the issues in controversy with respect to which the communication was made. (d)(1) The parties may agree to alternative confidential procedures for disclosures by a neu- tral. Upon such agreement the parties shall in- form the neutral before the commencement of the dispute resolution proceeding of any modi- fications to the provisions of subsection (a) that will govern the confidentiality of the dispute resolution proceeding. If the parties do not so inform the neutral, subsection (a) shall apply. (2) To qualify for the exemption established under subsection (j), an alternative confidential procedure under this subsection may not provide for less disclosure than the confidential proce- dures otherwise provided under this section. (e) If a demand for disclosure, by way of dis- covery request or other legal process, is made upon a neutral regarding a dispute resolution communication, the neutral shall make reason- able efforts to notify the parties and any af- fected nonparty participants of the demand. Any party or affected nonparty participant who re- ceives such notice and within 15 calendar days does not offer to defend a refusal of the neutral to disclose the requested information shall have waived any objection to such disclosure. (f) Nothing in this section shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented in the course of a dis- pute resolution proceeding. (g) Subsections (a) and (b) shall have no effect on the information and data that are necessary to document an agreement reached or order issued pursuant to a dispute resolution pro- ceeding. (h) Subsections (a) and (b) shall not prevent the gathering of information for research or educational purposes, in cooperation with other agencies, governmental entities, or dispute reso- lution programs, so long as the parties and the specific issues in controversy are not identifi- able. (i) Subsections (a) and (b) shall not prevent use of a dispute resolution communication to re- solve a dispute between the neutral in a dispute resolution proceeding and a party to or partici- pant in such proceeding, so long as such dispute resolution communication is disclosed only to the extent necessary to resolve such dispute. (j) A dispute resolution communication which is between a neutral and a party and which may not be disclosed under this section shall also be exempt from disclosure under section 552(b)(3). (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2740, § 584; renumbered § 574, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, § 3, Oct. 19, 1996, 110 Stat. 3870.) Page 162 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 575 Editorial Notes CODIFICATION Section 574 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2255 of Title 7, Agriculture. Section 574a of former Title 5, Executive Depart- ments and Government Officers and Employees, was transferred to section 2226 of Title 7. PRIOR PROVISIONS A prior section 574 was renumbered section 594 of this title. AMENDMENTS 1996—Subsecs. (a), (b). Pub. L. 104–320, § 3(a), in intro- ductory provisions struck out ‘‘any information con- cerning’’ after ‘‘be required to disclose’’. Subsec. (b)(7). Pub. L. 104–320, § 3(b), amended par. (7) generally. Prior to amendment, par. (7) read as follows: ‘‘the dispute resolution communication was provided to or was available to all parties to the dispute resolution proceeding’’. Subsec. (d). Pub. L. 104–320, § 3(c), designated existing provisions as par. (1) and added par. (2). Subsec. (j). Pub. L. 104–320, § 3(d), amended subsec. (j) generally. Prior to amendment, subsec. (j) read as fol- lows: ‘‘This section shall not be considered a statute specifically exempting disclosure under section 552(b)(3) of this title.’’ 1992—Pub. L. 102–354 renumbered section 584 of this title as this section. § 575. Authorization of arbitration (a)(1) Arbitration may be used as an alter- native means of dispute resolution whenever all parties consent. Consent may be obtained either before or after an issue in controversy has aris- en. A party may agree to— (A) submit only certain issues in con- troversy to arbitration; or (B) arbitration on the condition that the award must be within a range of possible out- comes. (2) The arbitration agreement that sets forth the subject matter submitted to the arbitrator shall be in writing. Each such arbitration agree- ment shall specify a maximum award that may be issued by the arbitrator and may specify other conditions limiting the range of possible outcomes. (3) An agency may not require any person to consent to arbitration as a condition of entering into a contract or obtaining a benefit. (b) An officer or employee of an agency shall not offer to use arbitration for the resolution of issues in controversy unless such officer or em- ployee— (1) would otherwise have authority to enter into a settlement concerning the matter; or (2) is otherwise specifically authorized by the agency to consent to the use of arbitra- tion. (c) Prior to using binding arbitration under this subchapter, the head of an agency, in con- sultation with the Attorney General and after taking into account the factors in section 572(b), shall issue guidance on the appropriate use of binding arbitration and when an officer or em- ployee of the agency has authority to settle an issue in controversy through binding arbitra- tion. (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 585; renumbered § 575, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended Pub. L. 104–320, § 8(c), Oct. 19, 1996, 110 Stat. 3872.) Editorial Notes CODIFICATION Section 575 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2259 of Title 7, Agriculture. PRIOR PROVISIONS A prior section 575 was renumbered section 595 of this title. AMENDMENTS 1996—Subsec. (a)(2). Pub. L. 104–320, § 8(c)(1), (2), sub- stituted ‘‘The’’ for ‘‘Any’’ and inserted at end ‘‘Each such arbitration agreement shall specify a maximum award that may be issued by the arbitrator and may specify other conditions limiting the range of possible outcomes.’’ Subsec. (b). Pub. L. 104–320, § 8(c)(3), in introductory provisions substituted ‘‘shall not offer to use arbitra- tion for the resolution of issues in controversy unless’’ for ‘‘may offer to use arbitration for the resolution of issues in controversy, if’’, and in par. (1) substituted ‘‘would otherwise have authority’’ for ‘‘has authority’’. Subsec. (c). Pub. L. 104–320, § 8(c)(4), added subsec. (c). 1992—Pub. L. 102–354 renumbered section 585 of this title as this section. § 576. Enforcement of arbitration agreements An agreement to arbitrate a matter to which this subchapter applies is enforceable pursuant to section 4 of title 9, and no action brought to enforce such an agreement shall be dismissed nor shall relief therein be denied on the grounds that it is against the United States or that the United States is an indispensable party. (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 586; renumbered § 576, Pub. L. 102–354, § 3(b)(2), Aug. 26, 1992, 106 Stat. 944.) Editorial Notes CODIFICATION Section 576 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2260 of Title 7, Agriculture, and subse- quently repealed by Pub. L. 107–171, title X, § 10418(a)(3), May 13, 2002, 116 Stat. 507. PRIOR PROVISIONS A prior section 576 was renumbered section 596 of this title. AMENDMENTS 1992—Pub. L. 102–354 renumbered section 586 of this title as this section. § 577. Arbitrators (a) The parties to an arbitration proceeding shall be entitled to participate in the selection of the arbitrator. (b) The arbitrator shall be a neutral who meets the criteria of section 573 of this title. (Added Pub. L. 101–552, § 4(b), Nov. 15, 1990, 104 Stat. 2742, § 587; renumbered § 577 and amended Pub. L. 102–354, § 3(b)(2), (3), Aug. 26, 1992, 106 Stat. 944, 945.) Editorial Notes AMENDMENTS 1992—Pub. L. 102–354, § 3(b)(2), renumbered section 587 of this title as this section.