[Code of Federal Regulations]

[Title 32, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 32CFR97.6]



[Page 511-513]

 

                       TITLE 32--NATIONAL DEFENSE

 

              CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE

 

PART 97_RELEASE OF OFFICIAL INFORMATION IN LITIGATION AND TESTIMONY BY 

DoD PERSONNEL AS WITNESSES--Table of Contents

 

Sec.  97.6  Procedures.



    (a) Authority to act. (1) In response to a litigation request or 

demand for official DoD information or the testimony of DoD personnel as 

witnesses, the General Counsels of DoD, Navy, and the Defense Agencies; 

the Judge Advocates General of the Military Departments; and the Chief 

Legal Advisors to the JCS and the Unified and Specified Commands, with 

regard to their respective Components, are authorized--after consulting 

and coordinating with the appropriate Department of Justice litigation 

attorneys, as required--to determine whether official information may be 

released in litigation; whether DoD personnel assigned to or affiliated 

with the Component may be interviewed, contacted, or used as witnesses 

concerning official DoD information or as expert witnesses; and what, if 

any, conditions will be imposed upon such release, interview, contact, 

or testimony. Delegation of this authority, to include the authority to 

invoke appropriate claims of privilege before any tribunal, is 

permitted.

    (2) In the event that a DoD Component receives a litigation request 

or demand for official information originated by another Component, the 

receiving Component shall forward the appropriate portions of the 

request or demand to the originating Component for action in accordance 

with this Directive. The receiving Component shall also notify the 

requestor, court, or other authority of its transfer of the request or 

demand.



[[Page 512]]



    (3) Notwithstanding the provisions of paragraph (a) (1) and (2) of 

this section, the General Counsel, DoD, in litigation involving 

terrorism, espionage, nuclear weapons, intelligence means or sources, or 

otherwise as deemed necessary, may notify Components that General 

Counsel, DoD, will assume primary responsibility for coordinating all 

litigation requests and demands for official DoD information or 

testimony of DoD personnel, or both; consulting with the Department of 

Justice, as required; and taking final action on such requests and 

demands.

    (b) Factors to consider. In deciding whether to authorize the 

release of official DoD information or the testimony of DoD personnel 

concerning official information (hereafter referred to as ``the 

disclosure'') pursuant to paragraph (a), DoD officials should consider 

the following types of factors:

    (1) Whether the request or demand is unduly burdensome or otherwise 

inappropriate under the applicable court rules;

    (2) Whether the disclosure, including release in camera, is 

appropriate under the rules of procedure governing the case or matter in 

which the request or demand arose;

    (3) Whether the disclosure would violate a statute, executive order, 

regulation, or directive;

    (4) Whether the disclosure, including release in camera, is 

appropriate or necessary under the relevant substantive law concerning 

privilege;

    (5) Whether the disclosure, except when in camera and necessary to 

assert a claim of privilege, would reveal information properly 

classified pursuant to DoD 5200.1-R, ``Information Security Program 

Regulation,'' August 1982; unclassified technical data withheld from 

public release pursuant to DoD Directive 5230.25, ``Withholding of 

Unclassified Technical Data from Public Disclosure,'' November 6, 1984; 

or other matters exempt from unrestricted disclosure; and,

    (6) Whether disclosure would interfere with ongoing enforcement 

proceedings, compromise constitutional rights, reveal the identity of an 

intelligence source or confidential informant, disclose trade secrets or 

similarly confidential commercial or financial information, or otherwise 

be inappropriate under the circumstances.

    (c) Decisions on litigation requests and demands. (1) Subject to 

paragraph (c)(5) of this section, DoD personnel shall not, in response 

to a litigation request or demand, produce, disclose, release, comment 

upon, or testify concerning any official DoD information without the 

prior written approval of the appropriate DoD official designated in 

Sec.  97.6(a). Oral approval may be granted, but a record of such 

approval will be made and retained in accordance with the applicable 

implementing regulations.

    (2) If official DoD information is sought, through testimony or 

otherwise, by a litigation request or demand, the individual seeking 

such release or testimony must set forth, in writing and with as much 

specificity as possible, the nature and relevance of the official 

information sought. Subject to paragraph (c)(5), DoD personnel may only 

produce, disclose, release, comment upon, or testify concerning those 

matters that were specified in writing and properly approved by the 

appropriate DoD official designated in paragraph (a) of this section. 

See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

    (3) Whenever a litigation request or demand is made upon DoD 

personnel for official DoD information or for testimony concerning such 

information, the personnel upon whom the request or demand was made 

shall immediately notify the appropriate DoD official designated in 

Sec.  97.6(a) for the Component to which the individual contacted is or, 

for former personnel, was last assigned. In appropriate cases, the 

responsible DoD official shall thereupon notify the Department of 

Justice of the request or demand. After due consultation and 

coordination with the Department of Justice, as required, the DoD 

official shall determine whether the individual is required to comply 

with the request or demand and shall notify the requestor or the court 

or other authority of the determination reached.

    (4) If, after DoD personnel have received a litigation request or 

demand and have in turn notified the appropriate DoD official in 

accordance with



[[Page 513]]



paragraph (c)(3) of this section , a response to the request or demand 

is required before instructions from the responsible official are 

received, the responsible official designated in paragraph (a) shall 

furnish the requestor or the court or other authority with a copy of 

this directive and applicable implementing regulations, inform the 

requestor or the court or other authority that the request or demand is 

being reviewed, and seek a stay of the request or demand pending a final 

determination by the Component concerned.

    (5) If a court of competent jurisdiction or other appropriate 

authority declines to stay the effect of the request or demand in 

response to action taken pursuant to Sec.  97.6(c)(4), or if such court 

or other authority orders that the request or demand must be complied 

with notwithstanding the final decision of the appropriate DoD official, 

the DoD personnel upon whom the request or demand was made shall notify 

the responsible DoD official of such ruling or order. If the DoD 

official determines that no further legal review of or challenge to the 

court's order or ruling will be sought, the affected DoD personnel shall 

comply with the request, demand, or order. If directed by the 

appropriate DoD official, however, the affected DoD personnel shall 

respectfully decline to comply with the demand. See United States ex 

rel. Touhy v. Ragen, 340 U.S. 462 (1951).

    (d) Fees. Consistent with the guidelines in DoD Instruction 7230.7, 

``User Charges,'' January 29, 1985, the appropriate officials designated 

in Sec.  97.6(a) are authorized to charge reasonable fees, as 

established by regulation and to the extent not prohibited by law, to 

parties seeking, by request or demand, official DoD information not 

otherwise available under DoD 5400.7-R, ``DoD Freedom of Information Act 

Program,'' March 24, 1980. Such fees, in amounts calculated to reimburse 

the government for the expense of providing such information, may 

include the costs of time expended by DoD employees to process and 

respond to the request or demand; attorney time for reviewing the requst 

or demand and any information located in response thereto and for 

related legal work in connection with the request or demand; and 

expenses generated by materials and equipment used to search for, 

produce, and copy the responsive information. See Oppenheimer Fund, Inc. 

v. Sanders, 437 U.S. 340 (1978).

    (e) Expert or opinion testimony. DoD personnel shall not provide, 

with or without compensation, opinion or expert testimony concerning 

official DoD information, subjects, or activities, except on behalf of 

the United States or a party represented by the Department of Justice. 

Upon a showing by the requestor of exceptional need or unique 

circumstances and that the anticipated testimony will not be adverse to 

the interests of the Department of Defense or the United States, the 

appropriate DoD official designated in paragraph (a) of this section 

may, in writing, grant special authorization for DoD personnel to appear 

and testify at no expense to the United States. If, despite the final 

determination of the responsible DoD official, a court of competent 

jurisdiction or other appropriate authority, orders the appearance and 

expert or opinion testimony of DoD personnel, the personnel shall notify 

the responsible DoD official of such order. If the DoD official 

determines that no further legal review of or challenge to the court's 

order will be sought, the affected DoD personnel shall comply with the 

order. If directed by the appropriate DoD official, however, the 

affected DoD personnel shall respectfully decline to comply with the 

demand. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).