[Code of Federal Regulations]
[Title 32, Volume 5]
[Revised as of July 1, 2005]
From the U.S. Government Printing Office via GPO Access
[CITE: 32CFR725.9]

[Page 276-277]
 
                       TITLE 32--NATIONAL DEFENSE
 
                   CHAPTER VI--DEPARTMENT OF THE NAVY
 
PART 725_RELEASE OF OFFICIAL INFORMATION FOR LITIGATION PURPOSES AND 
TESTIMONY BY DEPARTMENT OF THE NAVY PERSONNEL--Table of Contents
 
Sec. 725.9  Action to grant or deny a request.

    (a) The process of determining whether to grant or deny a request is 
not an adversary proceeding. This part provides guidance for the 
operation of DON only and is not intended to, does not, and may not be 
relied upon to, create any right or benefit, substantive or procedural, 
enforceable at law against the United States, DOD, or DON.
    (b) 32 CFR part 97 and this part apply to testimony by former naval 
personnel and former civilian employees of DON. A proper request must be 
made, under Sec. 725.7, to obtain testimony by former personnel 
regarding official DOD information. However, this part is not intended 
to place unreasonable restraints upon the post-employment conduct of 
such personnel. Accordingly, requests for expert or opinion testimony by 
such personnel will normally be granted unless that testimony would 
constitute a violation of the U.S. Code (e.g., 18 U.S.C. 201 et seq.), 
conflict with pertinent regulations (e.g., Secretary of the Navy 
Instruction 5370.2H), or disclose properly classified or privileged 
information.
    (c) A determination to grant or deny should be made as expeditiously 
as possible to provide the requester and the court with the matter at 
issue or with a statement of the reasons for denial. The decisional 
period should not exceed 10 working days from receipt of a complete 
request complying with the requirements of Sec. 725.7, absent 
exceptional or particularly difficult circumstances. The requester 
should also be informed promptly of the referral of any portion of the 
request to another authority for determination.
    (d) Except as provided in Sec. 725.7(d), a determination to grant 
or deny shall be in writing.
    (e) The determination letter should respond solely to the specific 
disclosures requested, stating a specific determination on each 
particular request. When a request is denied in whole or in part, a 
statement of the reasons for denial should be provided to fully inform a 
court of the reasons underlying the determination if it is challenged.
    (f) A copy of any denial, in whole or in part, of a request, should 
be forwarded to the cognizant Deputy Assistant Judge Advocate General or 
the Associate General Counsel (Litigation), as appropriate. Such 
notification is likewise appropriate when the litigation request has 
been treated under 5 U.S.C. 552, 552a and Sec. 725.5(f). Telephonic 
notification is particularly appropriate where a judicial challenge or 
contempt action is anticipated.
    (g) In cases in which a subpoena has been received and the requester 
refuses to pay fees or otherwise comply with the guidance and 
requirements imposed by this part, or if the determining authority 
declines to make some or all of the subpoenaed information available, or 
if the determining authority has had insufficient time to complete its 
determination as to how to respond to the request, the determining 
authority

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must promptly notify the General Litigation Division of the Office of 
the Judge Advocate General or the Navy Litigation Office of the Office 
of the General Counsel, which offices will determine, in consultation 
with the Department of Justice, the appropriate response to be made to 
the tribunal which issued the subpoena. Because the Federal Rules of 
Civil Procedure require that some objections to subpoenas must be made 
either within 10 days of service of the subpoena or on or before the 
time for compliance, whichever first occurs, and because this will 
require consultation with the Department of Justice, timely notice is 
essential.