Rule2022-20433
Release of Official Information in Litigation and Presentation of Witness Testimony by DoD Personnel (Touhy Regulation)
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 22, 2022
Effective
October 24, 2022
Issuing agencies
Defense Department
Abstract
DoD is finalizing the requirements for submitting subpoenas and litigation requests to the Department as well as the procedures that its personnel will follow to respond. These amendments consolidate component-level requirements and procedures into a single, updated Department-level Touhy rule.
Full Text
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<title>Federal Register, Volume 87 Issue 183 (Thursday, September 22, 2022)</title>
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[Federal Register Volume 87, Number 183 (Thursday, September 22, 2022)]
[Rules and Regulations]
[Pages 57825-57830]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-20433]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 97
[Docket ID: DOD-2018-OS-0103]
RIN 0790-AK11
Release of Official Information in Litigation and Presentation of
Witness Testimony by DoD Personnel (Touhy Regulation)
AGENCY: Office of the General Counsel of the Department of Defense
(DoD), DoD.
ACTION: Final rule.
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SUMMARY: DoD is finalizing the requirements for submitting subpoenas
and litigation requests to the Department as well as the procedures
that its personnel will follow to respond. These amendments consolidate
component-level requirements and procedures into a single, updated
Department-level Touhy rule.
DATES: This final rule is effective on October 24, 2022.
FOR FURTHER INFORMATION CONTACT: Ms. Denise Shellman, 703-571-0793,
<a href="/cdn-cgi/l/email-protection#6400010a0d17014a124a170c01080809050a4a070d122409050d084a090d08"><span class="__cf_email__" data-cfemail="0561606b6c76602b732b766d60696968646b2b666c734568646c692b686c69">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
A. Background and Legal Basis for This Rule
The Housekeeping Statute, 5 U.S.C. 301, authorizes agency heads to
promulgate regulations governing ``the custody, use, and preservation
of its records, papers, and property.''
The Supreme Court held in United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951), that under such authority, agency heads may establish
procedures for determining whether to release official information and
allow personnel testimony sought through a subpoena or other litigation
request. This regulation sets forth DoD's procedures, which as the
Supreme Court explained, are useful and necessary as a matter of
internal administration to prevent possible harm from unrestricted
disclosures in court.
In DoD Directive 5145.01, ``General Counsel of the Department of
Defense (GC DoD),'' December 2, 2013, as amended (available at <a href="https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/514501p.pdf">https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/514501p.pdf</a>),
and pursuant to 10 U.S.C. 113, the Secretary of Defense has delegated
the authority to establish those procedures to the General Counsel.
This rule's corresponding internal issuance is DoD Directive
5405.2, ``Release of Official Information in
[[Page 57826]]
Litigation and Testimony by DoD Personnel as Witnesses,'' July 23, 1985
(available at <a href="https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/540502p.pdf">https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/540502p.pdf</a>). When this rule is finalized, DoD Directive
5405.2 will be reissued as DoD Instruction 5405.02, ``Release of
Official Information in Litigation and Presentation of Witness
Testimony by DoD Personnel,'' which will be made available at <a href="https://www.esd.whs.mil/Directives/issuances/dodi/">https://www.esd.whs.mil/Directives/issuances/dodi/</a>.
B. Discussion of Comments and Changes
The proposed rule was published in the Federal Register (86 FR
26444-26448) on May 14, 2021, with no public comments received. The
rule proposed modifications primarily to clarify and streamline the
requirements for the proper submission of subpoenas and litigation
requests, the factors that chief legal advisors will consider when
responding, and the fees that may be collected to cover associated
expenses.
The modifications included:
<bullet> Adding in Sec. 97.1 references to 5 U.S.C. 301 and the
Supreme Court's decision in United States ex rel. Touhy v. Ragen, 340
U.S. 462 (1951), to note the legal basis for this rule's purpose.
<bullet> Reorganizing the paragraphs in Sec. 97.2 to provide a
more practical order of categories covered by and excluded from the
rule.
<bullet> Revising in Sec. 97.3 the definition of ``personnel'' to
make clear that the rule covers not only Service members and civilian
employees of every DoD component, but also employees of other Federal
agencies who are assigned to, detailed to, or otherwise affiliated with
a DoD component.
<bullet> Adding in Sec. 97.3 the defined term ``chief legal
advisors'' to replace the phrases ``appropriate DoD official designated
in paragraph (a) of this section'' and ``appropriate DoD official
designated in Sec. 97.6(a),'' which are used awkwardly throughout the
current rule to refer to a component's chief attorney. Also adding in
Sec. 97.3 the defined term ``court'' to replace the awkward phrase
``court of competent jurisdiction or other appropriate authority''
throughout the rule. These changes allow for cleaner sentences and
result in a more straightforward rule that is easier to follow.
<bullet> Moving the definition of ``disclosure'' from Sec. 97.6 to
Sec. 97.3, the Definitions section, so that the reader may find it
easily. For the same reason, separating the defined terms
``litigation'' and ``litigation request,'' which appear together in the
current rule under the definition of ``litigation.''
<bullet> Dividing the Responsibilities section into two separate
sections (GC DoD and DoD Component heads); dividing the Procedures
section into five separate sections (authorities, factors to consider,
requirements and determinations, fees, and expert or opinion
testimony); and subdividing the five new Procedures sections to list
separately each item that requesting parties, personnel, and chief
legal advisors must take into account. These formatting changes result
in a more streamlined rule that is easier to use.
While no public comments were received, DoD is making two
administrative revisions in this final rule:
<bullet> Adding in Sec. 97.8 a factor to consider whether a
disclosure would reveal information protected by the Privacy Act.
<bullet> Adding a third appendix for litigation requests and
demands to the Department of the Army.
The general notice-and-comment requirement of the Administrative
Procedure Act does not apply to these administrative revisions. DoD
finds for good cause under 5 U.S.C. 553(b)(B) that another round of
notice and comment is impracticable and unnecessary. Adding Privacy Act
information to the factors to consider simply recognizes an existing
obligation set forth in 5 U.S.C. 552a. The revision also will reinforce
DoD components' compliance with this statute. And similar to the
previously published appendices for the Departments of the Navy and Air
Force, the Department of the Army appendix simply lists the appropriate
offices where parties should submit their requests and demands.
C. Expected Impact of the Final Rule
As no public comment was received on this analysis, the Department
is finalizing this section without change. Consolidating Touhy
requirements into a single rule, along with updating the rule to make
it clearer and more streamlined, will produce efficiencies and
uniformity to the public's benefit. Less attorney time will be spent
searching for only one rule and complying with its requirements. The
Department has concluded that attorneys for third-party litigants will
save an estimated 30 minutes of research, review, and compliance time
per subpoena or litigation request when referring to the CFR for
guidance.
For purposes of estimating the cost savings, the Department's
subject matter experts deemed it reasonable to use the mean hourly wage
for lawyers as informed by the Bureau of Labor and Statistics,
$69.86.\1\ Subject matter experts further advised that at least 80% of
subpoenas and litigation requests submitted to DoD involve consultation
of the various rules in the CFR.\2\ An average of 1,405 requests are
received annually across the entire Department, according to Fiscal
Year 2016 data. This rule should result in an annual cost savings of
approximately $39,261.32, which is the impacted percentage (80%) of
total annual requests (1,405) multiplied by the attorney hours saved
per request (0.5) and the mean hourly wage ($69.86)--in other words,
0.8*1,405*0.5*69.86 = $39,261.32. These savings are reflected in the
chart below.
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\1\ This information can be found in the website of the Bureau
of Labor Statistics under National Wage Data for Lawyers, Occupation
Code 23-1011 (available at <a href="https://www.bls.gov/oes/current/oes231011.htm">https://www.bls.gov/oes/current/oes231011.htm</a>), last updated in May 2019.
\2\ The Department consulted with subject matter experts in the
DoD Office of the General Counsel and offices of chief legal
counsels of various components, who provided the estimates of
impacted percentage of total requests and of the attorney hours
saved per request.
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Litigation Impacted Projected cost
Rules Components requests in requests Hours saved Lawyers' savings to
2016 (%) per request hourly wage public
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93.................................... NSA..................... 35 x 80 x 0.5 x $69.86 = $978.04
97.................................... DoD..................... 20 x 80 x 0.5 x 69.86 = 558.88
267................................... NRO..................... 10 x 80 x 0.5 x 69.86 = 279.44
516G.................................. Army.................... 400 x 80 x 0.5 x 69.86 = 11,177.60
720, 725.............................. Navy.................... 940 x 80 x 0.5 x 69.86 = 26,267.36
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Total............................. ........................ ........... ... ........... ... ........... ... ........... = 39,261.32
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[[Page 57827]]
In addition to these cost savings, there will be an unquantified
benefit of transparency through access to official information, while
safeguarding classified, privileged, and personally identifiable
information.
REGULATORY COMPLIANCE ANALYSIS
A. Executive Order 12866, ``Regulatory Planning and Review,'' and
Executive Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. Following the requirements of these Executive orders, the
Office of Management and Budget has determined that this final rule is
not a significant regulatory action under section 3(f) of Executive
Order 12866. DoD estimates that the rule would generate $9,309.05 in
annualized cost savings at the 7% discount rate, discounted to a 2016
equivalent, over a perpetual time as discussed in the Expected Impact
of the Final Rule section. The present value savings are estimated at
$51,463.58.
B. Congressional Review Act (5 U.S.C. 801 et seq.)
Pursuant to the Congressional Review Act, this rule has not been
designated a major rule, as defined by 5 U.S.C. 804(2).
C. Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)
The DoD Office of General Counsel certified that this final rule is
not subject to the Regulatory Flexibility Act, 5 U.S.C. 601, because it
would not have a significant economic impact on a substantial number of
small entities. Accordingly, DoD is not required to prepare a
regulatory flexibility analysis.
D. Section 202 of Public Law 104-4, ``Unfunded Mandates Reform Act'' (2
U.S.C. 1532)
Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1532, requires agencies to assess anticipated costs and benefits before
issuing any rule whose mandates require the expenditure of $100 million
or more (in 1995 dollars, adjusted annually for inflation) in any one
year. This final rule will not mandate any requirements for State,
local, or tribal governments, nor will it affect private sector costs.
E. Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
35)
It has been determined that 32 CFR part 97 does not impose
reporting or recordkeeping requirements under the Paperwork Reduction
Act.
F. Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct requirement costs on State
and local governments, preempts State law, or otherwise has federalism
implications. This final rule will not have a substantial effect on
State and local governments.
G. Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
Executive Order 13175 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct compliance costs on one or
more Indian tribes, preempts tribal law, or affects the distribution of
power and responsibilities between the Federal Government and Indian
tribes. This final rule will not have a substantial effect on Indian
tribal governments.
List of Subjects in 32 CFR Part 97
Archives and records, Courts, Information.
0
Accordingly, 32 CFR part 97 is revised to read as follows:
PART 97--RELEASE OF OFFICIAL INFORMATION IN LITIGATION AND
PRESENTATION OF WITNESS TESTIMONY BY DOD PERSONNEL (TOUHY
REGULATION)
Sec.
97.1 Purpose.
97.2 Applicability.
97.3 Definitions.
97.4 Policy.
97.5 Responsibilities--GC DoD.
97.6 Responsibilities--DoD Component heads.
97.7 Procedures--authorities.
97.8 Procedures--factors to consider.
97.9 Procedures--requirements and determinations.
97.10 Procedures--fees.
97.11 Procedures--expert or opinion testimony.
Appendix A to Part 97--Litigation Requests and Demands to the
Department of the Army
Appendix B to Part 97--Litigation Requests and Demands to the
Department of the Navy
Appendix C to Part 97--Litigation Requests and Demands to the
Department of the Air Force
Authority: 5 U.S.C. 301, 10 U.S.C. 113.
Sec. 97.1 Purpose.
This part establishes policy, assigns responsibilities, and
prescribes procedures for the release of official information in
litigation and the presentation of witness testimony by Department of
Defense (DoD) personnel pursuant to 5 U.S.C. 301 and the Supreme
Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462
(1951).
Sec. 97.2 Applicability.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military
Departments, the Office of the Chairman of the Joint Chiefs of Staff
and the Joint Staff, the Combatant Commands, the Office of the
Inspector General of the Department of Defense, the Defense Agencies,
the DoD Field Activities, and all other organizational entities within
the DoD (referred to collectively in this part as the ``DoD
Components'').
(b) Is intended only to provide guidance for the internal
operations of the DoD, without displacing the responsibility of the
Department of Justice to represent the United States in litigation.
(c) Does not preclude official comments on matters in litigation.
(d) Does not apply to the release of official information or the
presentation of witness testimony in connection with:
(1) Courts-martial convened by the authority of a Military
Department.
(2) Administrative proceedings or investigations conducted by or
for a DoD Component.
(3) Security-clearance adjudicative proceedings, including those
conducted pursuant to DoD Directive 5220.6, ``Defense Industrial
Personnel Security Clearance Review Program,'' January 2, 1992, as
amended (available at <a href="https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/522006p.pdf">https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/522006p.pdf</a>).
(4) Administrative proceedings conducted by or for the Equal
Employment Opportunity Commission or the Merit Systems Protection
Board.
(5) Negotiated grievance proceedings conducted in accordance with a
collective bargaining agreement.
[[Page 57828]]
(6) Requests by Government counsel representing the United States
or a Federal agency in litigation.
(7) Disclosures to Federal, State, local, or foreign authorities
related to investigations or other law-enforcement activities conducted
by a DoD law-enforcement officer, agent, or organization.
(e) Does not affect in any way existing laws or DoD programs
governing:
(1) The release of official information or the presentation of
witness testimony in grand jury proceedings.
(2) Freedom of Information Act requests submitted pursuant to 32
CFR part 286, even if the records sought are related to litigation.
(3) Privacy Act requests submitted pursuant to 32 CFR part 310,
even if the records sought are related to litigation.
(4) The release of official information outside of litigation.
(f) Does not create any right or benefit (substantive or
procedural) enforceable at law against the DoD or the United States.
Sec. 97.3 Definitions.
These terms and their definitions are for the purpose of this part.
Chief legal advisors. (1) The General Counsel of the Department of
Defense (GC DoD).
(2) The General Counsel of a Military Department.
(3) The Legal Counsel to the Chairman of the Joint Chiefs of Staff.
(4) The Judge Advocate General of a Military Service.
(5) The Staff Judge Advocate to the Commandant of the Marine Corps.
(6) The Staff Judge Advocate to a Combatant Commander.
(7) The General Counsel to the Inspector General of the Department
of Defense.
(8) The General Counsel of a Defense Agency.
(9) The General Counsel of a DoD Field Activity.
(10) The chief legal advisor of any other organizational entity
within the DoD.
Court. A Federal, State, or local court, tribunal, commission,
board, or other adjudicative body of competent jurisdiction.
Demand. An order or subpoena by a court of competent jurisdiction
for the production or release of official information or for the
presentation of witness testimony by DoD personnel at deposition or
trial.
Disclosure. The release of official information in litigation or
the presentation of witness testimony by DoD personnel.
Litigation. All pretrial (e.g., discovery), trial, and post-trial
stages of existing judicial or administrative actions, hearings,
investigations, or similar proceedings before a civilian court, whether
foreign or domestic.
Litigation request. Any written request by a party in litigation or
the party's attorney for the production or release of official
information or for the presentation of witness testimony by DoD
personnel at deposition, trial, or similar proceeding.
Official information. All information of any kind and however
stored that is in the custody and control of the DoD, relates to
information in the custody and control of the DoD, or was acquired by
DoD personnel due to their official duties or status.
Personnel. (1) Present and former (e.g., retired, separated)
Service members, including Service academy cadets and midshipmen.
(2) Present and former (e.g., retired, separated) civilian
employees of a DoD Component, including non-appropriated fund activity
employees.
(3) Present and former (e.g., retired, separated) employees of
another Federal agency assigned to, detailed to, or otherwise
affiliated with a DoD Component.
(4) Non-U.S. nationals who perform or have performed services
overseas for any of the Military Services in accordance with a status
of forces agreement.
(5) Any individuals who perform or have performed services for a
DoD Component through a contractual arrangement.
Sec. 97.4 Policy.
The DoD generally should make official information reasonably
available for use in Federal, State, and foreign courts and other
adjudicative bodies if the information is not classified, privileged,
or otherwise protected from public disclosure.
Sec. 97.5 Responsibilities--GC DoD.
The GC DoD has overall responsibility for the policy in this part,
oversees the implementation of its procedures throughout the DoD, and
provides supplemental guidance as appropriate.
Sec. 97.6 Responsibilities--DoD Component heads.
The DoD Component heads:
(a) Implement the policy and procedures in this part and, through
their chief legal advisors, provide guidance for their respective
components.
(b) Must issue or update, as appropriate, their respective
components' implementing regulations within 180 days of October 24,
2022.
Sec. 97.7 Procedures--authorities.
(a) In response to a litigation request or demand, and after any
required coordination with the Department of Justice, the chief legal
advisors (see Sec. 97.3) are authorized to:
(1) Determine whether their respective DoD Components may release
official information originated by or in the custody of such
components.
(2) Determine whether personnel assigned to, detailed to, or
affiliated with their respective DoD Components may be contacted,
interviewed, or used as witnesses concerning official information or,
in exceptional circumstances, as expert witnesses.
(3) Impose conditions or limitations on disclosures approved
pursuant to this paragraph (a) (e.g., approve the release of official
information only to a Federal judge for in camera review).
(4) Assert claims of privilege or protection before any court or
adjudicative body.
(b) The GC DoD may assume primary responsibility for responding to
any litigation request or demand.
Sec. 97.8 Procedures--factors to consider.
In making a determination pursuant to Sec. 97.7(a), the chief
legal advisors will consider whether:
(a) The litigation request or demand is overbroad, unduly
burdensome, or otherwise inappropriate under applicable law or court
rules.
(b) The disclosure would be improper (e.g., the information is
irrelevant, cumulative, or disproportional to the needs of the case)
under the rules of procedure governing the litigation from which the
request or demand arose.
(c) The official information or witness testimony is privileged or
otherwise protected from disclosure under applicable law.
(d) The disclosure would violate a statute, Executive order,
regulation, or policy.
(e) The disclosure would reveal:
(1) Information properly classified pursuant to Volume 1 of DoD
Manual 5200.01, ``DoD Information Security Program: Overview,
Classification, and Declassification,'' February 24, 2012, as amended
(available at <a href="https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/520001m_vol1.pdf?ver=2018-05-04-091448-843">https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/520001m_vol1.pdf?ver=2018-05-04-091448-843</a>).
(2) Controlled Unclassified Information pursuant to Volume 4 of DoD
Manual 5200.01, ``DoD Information Security Program: Controlled
Unclassified Information (CUI),'' February 24, 2012, as amended
(available at https://www.esd.whs.mil/Portals/54/Documents/DD/
issuances/
[[Page 57829]]
dodm/520001-V4p.PDF?ver=2018-05-09-115318-927).
(3) Technical data withheld pursuant to 32 CFR part 250.
(4) Information protected by the Privacy Act, which may not be
disclosed in the absence of written consent, a routine use, or other
authority listed in 5 U.S.C. 552a(b).
(5) Information otherwise exempt from unrestricted disclosure.
(f) The disclosure would:
(1) Interfere with an ongoing enforcement proceeding.
(2) Compromise a constitutional right.
(3) Expose an intelligence source or confidential informant.
(4) Divulge a trade secret or similar confidential information.
(5) Be otherwise inappropriate.
Sec. 97.9 Procedures--requirements and determinations.
(a) A litigation request or demand must describe, in writing and
with specificity, the nature of the official information or witness
testimony sought, its relevance to the litigation, and other pertinent
details addressing the factors in Sec. 97.8.
(b) Personnel who receive a litigation request or demand must
notify their DoD Component's chief legal advisor immediately. Former
personnel (e.g., retired Service members, separated employees, past
contractors) must notify the chief legal advisor of the component to
which they were last assigned.
(c) If another DoD Component or Federal agency originated the
responsive information or otherwise has the primary equity with respect
to that information, the chief legal advisor will:
(1) Transfer the litigation request or demand (or the appropriate
portions) to such other component or agency for action.
(2) Inform the requesting party or issuing court.
(3) In case of conflict, elevate to the GC DoD for resolution.
(d) If the litigation request or demand requires a response before
a determination can be made, the chief legal advisor will inform the
requesting party or the issuing court that the request or demand is
still under consideration. The chief legal advisor also may seek a stay
from the court in question until a final determination is made.
(e) Upon making a final determination pursuant to Sec. 97.7(a),
the chief legal advisor will inform the requesting party or issuing
court.
(f) If the chief legal advisor approves the release of official
information or the presentation of witness testimony, personnel will
limit the disclosure to those matters specified in the litigation
request or demand, subject to any conditions imposed by the chief legal
advisor. Personnel may not release, produce, comment on, or testify
about any official information without the chief legal advisor's prior
written approval.
(g) If a court orders a disclosure that the chief legal advisor
previously disapproved or has yet to approve, personnel must
respectfully decline to comply with the court's order unless the chief
legal advisor directs otherwise.
Sec. 97.10 Procedures--fees.
Parties seeking official information by litigation request or
demand may be charged reasonable fees in accordance with Volume 11A,
Chapter 4 of DoD 7000.14-R, ``Department of Defense Financial
Management Regulation: Reimbursable Operations Policy: User Fees,''
July 2016 (available at <a href="http://comptroller.defense.gov/Portals/45/documents/fmr/current/11a/11a_04.pdf">http://comptroller.defense.gov/Portals/45/documents/fmr/current/11a/11a_04.pdf</a>), to reimburse expenses associated
with the Government's response. These reimbursable expenses may include
the cost of:
(a) Materials and equipment used to search for, copy, and produce
responsive information.
(b) Personnel time spent processing and responding to the request
or demand.
(c) Attorney time spent assisting with the Government's response,
to include reviewing the request or demand and the potentially
responsive information.
Sec. 97.11 Procedures--expert or opinion testimony.
(a) Personnel may not present expert or opinion testimony involving
official information, except when:
(1) The testimony is presented on behalf of the United States, a
Federal agency, or any party represented by the Department of Justice.
(2) The chief legal advisor of the DoD Component with primary
equity has granted special written approval upon a showing of
exceptional need or unique circumstances, but only if the anticipated
testimony is not adverse to the interests of the DoD or the United
States and is presented at no expense to the Government.
(b) If a court orders the presentation of testimony disallowed by
paragraph (a) of this section, personnel must respectfully decline to
comply with the court's order unless the chief legal advisor directs
otherwise.
Appendix A to Part 97--Litigation Requests and Demands to the
Department of the Army
A litigation request or demand to the Department of the Army
(DA) must be submitted at least 14 days before the desired date to
the appropriate disclosure authority:
(a) Staff Judge Advocates (SJAs), chief counsel, and legal
advisors are the disclosure authorities for requests and demands
involving unclassified information within the custody, control, or
knowledge of their respective organizations when the United States
has no interest in the litigation. Requests and demands will be
processed by local legal offices (in consultation with Litigation
Division as needed) subject to the limitations in this appendix.
(b) The General Litigation Branch, Litigation Division, U.S.
Army Legal Services Agency (USALSA), 9275 Gunston Road, Fort
Belvoir, VA 22060, is the disclosure authority or may delegate
disclosure authority for requests and demands involving:
(1) Terrorism, espionage, nuclear weapons, or intelligence
sources and methods.
(2) Classified information.
(3) Privileged information.
(4) Technical data pursuant to 32 CFR part 250.
(5) Safety records and information produced by commands,
installation safety offices, or the U.S. Army Combat Readiness
Command and Safety Center (USACRC).
(6) Expert testimony.
(7) All other matters not listed in this appendix.
(c) Army Medical Center and Command Judge Advocates and
supporting SJAs (in consultation with the Defense Health Agency as
needed) are the disclosure authorities for requests and demands
involving medical records or other information within the custody,
control, or knowledge of their respective permanent station
hospitals. For requests and demands involving factual testimony by
medical providers, Commanders (in consultation with their legal
advisors) are the disclosure authorities for their respective
Medical Commands when the United States has no interest in the
litigation.
(d) The Contract Litigation & Intellectual Property Division,
USALSA, 9275 Gunston Road, Fort Belvoir, VA 22060, is the disclosure
authority for requests and demands involving:
(1) Patents, copyrights, trade secrets, or trademarks.
(2) Taxation matters.
(3) Bid protests or contract appeals before the Armed Services
Board of Contract Appeals (ASBCA) or the Government Accountability
Office, except that contracting officers (in coordination with their
servicing SJAs and the Division-assigned trial attorney) may release
official information for use in litigation before the ASBCA,
pursuant to 48 CFR part 5, subpart 5.4 (the Federal Acquisition
Regulation (FAR)).
(e) The Procurement Fraud Division, USALSA, 9275 Gunston Road,
Fort Belvoir, VA 22060, is the disclosure authority for requests and
demands involving procurement fraud matters, including qui tam
actions.
[[Page 57830]]
(f) The Environmental Law Division, USALSA, 9275 Gunston Road,
Fort Belvoir, VA 22060, is the disclosure authority for requests and
demands involving:
(1) Energy, communication, transportation, or utility service
proceedings.
(2) Environmental or natural resources matters, to include water
rights and affirmative environmental cost recovery.
(g) The Tort Litigation Branch, Litigation Division, USALSA,
9275 Gunston Road, Fort Belvoir, VA 22060, is the disclosure
authority for requests and demands involving medical care cost
recovery or property claims brought by the United States.
(h) The Office of the Chief Counsel, U.S. Army Corps of
Engineers (USACE), 441 G Street NW, Washington, DC, 20314-1000, is
the disclosure authority for requests and demands involving USACE
navigation, civil works, Clean Water Act 404 permit authority,
environmental response activities, or real property functions.
(i) DA personnel may not release Inspector General (IG) records
or present testimony involving information obtained through the
performance of IG duties, except with the approval of the Secretary
of the Army, The Inspector General (TIG), the TIG Legal Advisor, or
the Chief, Litigation Division.
Appendix B to Part 97--Litigation Requests and Demands to the
Department of the Navy
A litigation request to the Department of the Navy must be
submitted to the appropriate determining authority as defined in
Secretary of the Navy Instruction 5820.8, ``Release of Official
Information for Litigation Purposes and Testimony by Department of
the Navy Personnel,'' August 27, 1991, as amended (available at
<a href="https://www.secnav.navy.mil/doni/Directives/05000%20General%20Management%20Security%20and%20Safety%20Services/05-800%20Laws%20and%20Legal%20Services/5820.8A%20CH-1.pdf">https://www.secnav.navy.mil/doni/Directives/05000%20General%20Management%20Security%20and%20Safety%20Services/05-800%20Laws%20and%20Legal%20Services/5820.8A%20CH-1.pdf</a>).
As with all service of process on the Department of the Navy, a
demand (subpoena or court order) must be delivered to the Naval
Litigation Office using registered or certified mail, a commercial
courier service, or a process server. The address for all service of
process is: General Counsel of the Department of the Navy, Naval
Litigation Office, 720 Kennon St. SE, Room 233, Washington Navy
Yard, DC 20374-5013.
Answers to frequently asked questions on Touhy requests are
available at <a href="https://www.jag.navy.mil/organization/documents/Touhy_Requests.pdf">https://www.jag.navy.mil/organization/documents/Touhy_Requests.pdf</a>. Contact the Office of the General Counsel at
202-685-7039 or the Office of the Judge Advocate General at 202-685-
5450 with any additional questions.
Appendix C to Part 97--Litigation Requests and Demands to the
Department of the Air Force
A litigation request or demand to the Department of the Air
Force must be submitted to the base-level or servicing Staff Judge
Advocate for the installation or organization where the official
information or witness is located.
Should the information or witness be located in a Headquarters-
level office, the request or demand must be submitted to the
Commercial Litigation Field Support Center (for matters involving
contracts, acquisition, and procurement) or to the Air Force General
Litigation Division (for all other matters). Their addresses are:
Commercial Litigation Field Support Center, AFLOA/JAQC, 1500 W.
Perimeter Rd., Suite 4100, Joint Base Andrews, MD 20762; Air Force
General Litigation Division, AFLOA/JACL, 1500 W Perimeter Rd., Suite
1370, 1st Floor, Joint Base Andrews, MD 20762.
Dated: September 16, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2022-20433 Filed 9-21-22; 8:45 am]
BILLING CODE 5001-06-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.