Title 32—National Defense--Volume 1
PART 97—RELEASE OF OFFICIAL INFORMATION IN LITIGATION AND PRESENTATION OF WITNESS TESTIMONY BY DOD PERSONNEL (TOUHY REGULATION)
§ 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).
§ 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 https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodd/522006p.pdf ).
(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.
(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.
§ 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.
§ 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.
§ 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.
§ 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.
§ 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 § 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.
§ 97.8   Procedures—factors to consider.
In making a determination pursuant to § 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 https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/520001m_vol1.pdf?ver=2018-05-04-091448-843 ).
(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/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.
§ 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 § 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 § 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.
§ 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 http://comptroller.defense.gov/Portals/45/documents/fmr/current/11a/11a_04.pdf ), 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.
§ 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.