Release of Official Information and Appearance of Witnesses in Litigation, 90270-90292 [2016-29835]

Download as PDF 90270 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules of information unless it displays a currently valid OMB control number. III. Electronic Access Persons with access to the Internet may obtain the draft guidance at either http://www.fda.gov/FoodGuidances or http://www.regulations.gov. Use the FDA Web site listed in the previous sentence to find the most current version of the draft guidance. Dated: December 8, 2016. Leslie Kux, Associate Commissioner for Policy. FOR FURTHER INFORMATION CONTACT: Major Thomas S. Hong, (703) 693–1093; thomas.s.hong.mil@mail.mil. SUPPLEMENTARY INFORMATION: [FR Doc. 2016–29968 Filed 12–13–16; 8:45 am] BILLING CODE 4164–01–P Executive Summary DEPARTMENT OF DEFENSE Department of the Army 32 CFR Part 516 [Docket No. USA–2015–0016] RIN 0702–AA69 Release of Official Information and Appearance of Witnesses in Litigation Department of the Army, DoD. Proposed rule. AGENCY: ACTION: The Department of the Army proposes to amend its regulation concerning policies and procedures for release of official information and testimony of Army witnesses in federal and state courts where the Army or Department of Defense (DoD) has an interest in the matter. This regulation was last published in the Federal Register on July 29, 1994 (59 FR 38236). At that time, a complete Army Regulation was codified. This revision removes a large portion of the currently codified part that does not apply to the public, and is now included in DoD internal guidance. Army Regulation 27– 40, Litigation, dated 19 September 1994, is the corresponding document where the internal guidance is located. DATES: Consideration will be given to all comments received by: February 13, 2017. SUMMARY: You may submit comments, identified by 32 CFR part 516, Docket No. USA–2015–0016 and or RIN 0702– AA69, by any of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Mail: Department of Defense, Deputy Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, ATTN: Box 24, Alexandria, VA 22350– 1700. sradovich on DSK3GMQ082PROD with PROPOSALS ADDRESSES: VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 Instructions: All submissions received must include the agency name and docket number or Regulatory Information Number (RIN) for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information. The rule discusses departmental responsibilities, procedures for service of process, procedures for government officials sued in their official capacities, and procedures for requests for release of official information, to include witness testimony. The rule also discusses the release of official information and the appearance of present and former Army personnel as witnesses in response to requests for interviews, notices of depositions, subpoenas, and other requests or orders related to judicial or quasi-judicial proceedings. For the purposes of this rule, Army personnel include the following: • Present, former and retired Army military personnel, including the U.S. Army Reserve, regardless of current status. • Present, former and retired civilian employees of the U.S. Army, regardless of current status. • Soldiers of the Army National Guard of the United States (Title 10, U.S.C.) and, when specified by statute or where a Federal interest is involved, Soldiers in the Army National Guard (Title 32, U.S.C.). • Technicians under 32 U.S.C. 709. • USMA cadets. • Nonappropriated fund employees. • Foreign nationals who perform services for the Army overseas. • Other individuals hired by or for the Army, including individuals hired through contractual agreements by or on behalf of the Army. Background This regulation was most recently published in the Federal Register on July 29, 1994 (59 FR 38236). It implements 32 CFR part 97. Department of Defense Directive 5405.2, ‘‘Release of Official Information in Litigation and Testimony by DoD Personnel as Witnesses’’ (available at http:// PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 www.dtic.mil/whs/directives/corres/pdf/ 540502p.pdf) is where DoD’s internal guidance that corresponds to 32 CFR part 97 is located. The proposed revision also removes a large portion of the currently codified part that does not apply to the public, such as items that solely deal with internal Army procedures and actions, e.g., annual reporting requirements to Headquarters, Department of the Army. Authority for This Action Authorities for this rulemaking include the following: • The Freedom of Information Act at 5 U.S.C. 552 which provides the public with a right to request access to federal agency records or information, except to the extent the records are protected from disclosure by any of nine exemptions or by one of three special law enforcement record exclusions. • The Privacy Act of 1974 at 5 U.S.C. 552a, which establishes a code of fair information practices that governs the collection, maintenance, use, and dissemination of information about individuals that is maintained in systems of records by federal agencies. • Confidentiality of records at 42 U.S.C. 290 which requires certain medical records shall be confidential and disclosed only for authorized purposes. • Executive Order No. 12988, Civil Justice Reform (add a link to the E.O.) which establishes several requirements on Federal agencies involved in litigation or contemplating filing an action on behalf of the United States. Costs and Benefits The proposed revisions benefit the Department of the Army agencies, Army support to the Department of Justice, and interaction with state courts in affirmative and defensive litigation information. With the updates to the CFR for statutory and other changes since the document was published in 1994, Army’s support of federal litigation and response to requests to support state and private litigation will be improved. Although no formal study or collection of data are available, a review of the closed Touhy requests for FY 2016 shows that hundreds of hours were expended by Army personnel responding to these requests. Similar to costs in Freedom of Information Act processing, there are substantial costs for searching, reviewing, and producing Army records and personnel for depositions and trial. This rule will be included in DoD’s retrospective plan, completed in August 2011, and will be reported in future E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules status updates of DoD’s retrospective review in accordance with the requirements in Executive Order 13563. DoD’s full plan can be accessed at: http://www.regulations.gov/ #!docketDetail;D=DoD-2011-OS-0036. B. Regulatory Flexibility Act The Department of the Army has determined that the Regulatory Flexibility Act does not apply because the proposed rule does not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601–612. C. Unfunded Mandates Reform Act The Department of the Army has determined that the Unfunded Mandates Reform Act does not apply because the proposed rule does not include a mandate that may result in estimated costs to State, local or tribal governments in the aggregate, or the private sector, of $100 million or more. D. National Environmental Policy Act The Department of the Army has determined that the National Environmental Policy Act does not apply because the proposed rule does not have an adverse impact on the environment. sradovich on DSK3GMQ082PROD with PROPOSALS This proposed rule does not impose any new recordkeeping, reporting, or other information collection requirements on the public. The proposed rule sets forth procedures by which litigants may serve summonses, complaints, subpoenas, and other legal process, demands, and requests upon the DA. The proposed rule imposes special procedural requirements for those who seek to serve third-party subpoenas upon the DA in accordance with United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). These requirements may increase the time and burden associated with obtaining records of the DA in response to such third-party subpoenas. F. Executive Order 12630 (Government Actions and Interference With Constitutionally Protected Property Rights) The Department of the Army has determined that Executive Order 12630 does not apply because the proposed rule does not impair private property rights. 16:32 Dec 13, 2016 Jkt 241001 The Department of the Army has determined that, although this rule is not ‘‘economically significant’’ because it does not have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, it is ‘‘other significant’’ for raising novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in these Executive Orders. For that reason, it has been reviewed by the Office of Management and Budget (OMB). H. Executive Order 13045 (Protection of Children From Environmental Health Risk and Safety Risks) The Department of the Army has determined that according to the criteria defined in Executive Order 13045. This proposed rule does not apply since it does not implement or require actions impacting environmental health or safety risks to children. I. Executive Order 13132 (Federalism) E. Paperwork Reduction Act VerDate Sep<11>2014 G. Executive Order 12866 (Regulatory Planning and Review) and Executive Order 13563 (Improving Regulation and Regulatory Review) The Department of the Army has determined that according to the criteria defined in Executive Order 13132 this proposed rule does not apply because it will not have a substantial effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among various levels of government. List of Subjects in 32 CFR Part 516 Litigation, Service of process, Witnesses, Official information, Discovery requests, Expert testimony. For reasons stated in the preamble, the Department of the Army proposes to revise 32 CFR part 516 to read as follows: ■ PART 516—RELEASE OF OFFICIAL INFORMATION AND APPEARANCE OF WITNESSES IN LITIGATION Sec. 516.1 General. 516.2 Release authority. 516.3 Release determination. 516.4 Requestor responsibilities. 516.5 Classified, Privacy Act Protected, Sensitive or Privileged Information. 516.6 Releasing official information to the Department of Justice. 516.7 Complying with requests for official information, subpoenas, and witness testimony. 516.8 Testimony in private civil litigation. PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 90271 516.9 Department of Justice witness requests in litigation involving the United States. 516.10 Expert or opinion testimony by DA personnel. 516.11 Witnesses before foreign tribunals. 516.12 Fees and expenses. 516.13 News media and other inquiries. Authority: 5 U.S.C. 552; 5 U.S.C. 552a; 42 U.S.C. 290; Executive Order No. 12988. § 516.1 General. (a) Responsibilities.—(1) Litigating Divisions. (i) Chief, Litigation Division, United States Army Legal Services Agency (USALSA), is responsible for the following: (A) Supervising litigation in which the Army has an interest, except as outlined in paragraphs (a)(1)(A)(ii)–(iv) of this section. (B) Acting for The Judge Advocate General (TJAG) and the Secretary of the Army on litigation issues, including the authority to settle or compromise cases. (C) Delegating responsibility for cases if appropriate. (D) Serving as primary contact with the Department of Justice (DOJ) on litigation. (E) Accepting service of process for the Department of the Army (DA) and for the Secretary of the Army in his or her official capacity. (See 32 CFR 257.5.) (F) Approval of the appointment of Special Assistant United States Attorneys (SAUSAs) and DOJ special trial attorneys to represent the Army and DOD in civil litigation. (ii) Chief, Contract and Fiscal Law Division, USALSA, is responsible for supervising Armed Services Board of Contract Appeals (ASBCA) and Government Accountability Office (GAO) litigation. The Chief Trial Attorney, attorneys assigned to the Contract and Fiscal Law Division, and attorneys designated by the Chief Trial Attorney, will represent DA before the ASBCA for contract appeals. They also represent DA before the GAO for bid protests in cases not falling under the purview of either the U.S. Army Corps of Engineers (USACE) or Army Materiel Command. They will maintain direct liaison with DOJ and represent DA in appeals from ASBCA decisions. The Chief Trial Attorney has designated USACE attorneys to act as trial attorneys in connection with USACE contract appeals. (iii) Chief, Environmental Law Division, USALSA, is responsible for the following: (A) Supervising defensive environmental civil litigation and administrative proceedings involving missions and functions of DA, its major and subordinate commands, and E:\FR\FM\14DEP1.SGM 14DEP1 sradovich on DSK3GMQ082PROD with PROPOSALS 90272 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules installations currently or previously managed by DA in which the Army has an interest, except as otherwise specifically provided in this part. (B) Supervising affirmative cost recovery actions, brought pursuant to Federal or State environmental laws, in which the Army has an interest. (C) Acting for TJAG and the Secretary of the Army on the assertion and defense of Army water rights, and environmental litigation and affirmative cost recovery issues, including the authority to settle or compromise cases. (D) Delegating responsibility for cases as appropriate. (E) Serving as primary contact with DOJ on environmental litigation and cost recovery. (iv) Chief, Regulatory Law and Intellectual Property (RL & IP) Division, USALSA, is responsible for the following: (A) Supervising the attorneys assigned to the Regulatory Law and Intellectual Property Division (RL & IP) and other attorneys designated by the Chief, RL & IP, who represent DA consumer interests in regulatory matters before State and Federal administrative agencies and commissions, including but not limited to proceedings involving rates and conditions for the purchase of services for communications (except long-distance telephone), transportation, and utilities (gas, electric, water and sewer). Those attorneys will maintain direct liaison with DOJ for communications, transportation, and utilities litigation as authorized by the Chief, RL & IP. (B) Supervising attorneys assigned to the RL & IP Division, and other attorneys designated by the Chief RL & IP who represent DA in matters pertaining to patents, copyrights, and trademarks. Those attorneys will maintain direct liaison with DOJ and represent the DA in intellectual property issues as authorized by the Chief, RL & IP. (v) Chief, Procurement Fraud Division (PFD), is responsible for supervising all attorneys designated to represent the DA in all procurement fraud and corruption matters before the Army suspension and debarment authority and before any civil fraud recovery administrative body. Those attorneys will maintain liaison and coordinate remedies with DOJ and other agencies in matters of procurement fraud and corruption. (vi) Legal Representatives of the Chief of Engineers. The U.S. Army Corps of Engineers (USACE) Office of Chief Counsel, attorneys assigned thereto, and other attorneys designated by the Chief Counsel will maintain direct liaison with DOJ and represent DA in litigation VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 and administrative proceedings arising from the navigation, civil works, Clean Water Act 404 permit authority, environmental response activities, real property functions of the (USACE). (b) Applicability. (1) This part implements 32 CFR part 97 as further implemented by DOD Directive 5405.2, ‘‘Release of Official Information in Litigation and Testimony by DoD Personnel as Witnesses’’ (available at http://www.dtic.mil/whs/directives/ corres/pdf/540502p.pdf). It governs the release of official information and the appearance of present and former DA personnel as witnesses in response to requests for interviews, notices of depositions, subpoenas, and other requests or orders related to judicial or quasi-judicial proceedings (e.g., a proceeding conducted by an administrative or executive official that is similar to a trial, like a hearing.). Army’s internal guidance for this part is available in Army Regulation 27–40 Litigation, dated 19 September 1994 (available at http://www.apd.army.mil/ Search/ePubsSearch/ ePubsSearchForm.aspx?x=AR). The Army observes a policy of strict neutrality in all private litigation unless the United States has an interest. This part pertains to any request for witnesses, documents, or information for all types of litigation, including requests by private litigants, requests by State or U.S. attorneys, requests by foreign officials or tribunals. This part also pertains to subpoenas for records or testimony, notices of depositions, and interview requests all stemming from civil or criminal proceedings or any litigation in which the United States has an interest. (2) This part does not apply to releasing official information or testimony by Army personnel in the following situations: (i) Before courts-martial convened by military departments or in administrative proceedings conducted by or on behalf of a DOD component. (ii) In administrative proceedings for: (A) The Equal Employment Opportunity Commission. (B) The Merit Systems Protection Board. (C) The Federal Labor Relations Authority. (D) A negotiated grievance procedure under a collective bargaining agreement to which the government is a party. (iii) In response to requests by Federal Government counsel in litigation conducted on behalf of the United States. (iv) Pursuant to disclosure of information to Federal, State, and local prosecuting and law enforcement PO 00000 Frm 00018 Fmt 4702 Sfmt 4702 authorities, in conjunction with an investigation conducted by a DoD criminal investigative organization. (b) Policy. Official information generally should be made reasonably available for use in federal and state courts and by other governmental bodies unless the information is classified, privileged, or otherwise protected from public disclosure. Current or former DA personnel must receive approval from the local SJA, legal advisor, or Litigation Division prior to disclosing official information in response to subpoenas, court orders, or requests. The local SJA or legal advisor should seek to resolve all requests for official information at their level. In complex cases, responding offices should consult with the appropriate litigating division. If questions arise, refer the matter to the appropriate litigating division as described in § 516.1(d). All other matters, including cases involving classified information will be referred to the General Litigation Branch, Litigation Division. (c) Definitions. (1) Official information. Official information includes all information of any kind, however stored, that is in the custody and control of the Department of the Army, relates to information in the custody and control of the Department, or was acquired by DA personnel as part of their official duties or because of their official status within the Department while such personnel were employed by or on behalf of the Department or on active duty with the US Army. Official Information that is the property of the Army but is in the possession, custody or control of another Federal, State, or local agency or a Government contractor is also included in this definition. Generally, official information includes, but is not limited to paper, photographic or electronic records obtained, generated, or maintained for the Army, to include the personal observations and testimony of any kind by Army personnel, about: (i) Classified or sensitive information of any kind; (ii) Privileged information of any kind; (iii) The acquisition, funding, construction, operation, maintenance, physical condition or readiness, as applicable, of DOD, Army, or other Federal government programs, systems, properties, facilities, equipment, data management systems or personnel; (iv) Unit records, training records, individual personnel or medical records, investigative reports of any kind, scientific or financial data, official Army publications, and records E:\FR\FM\14DEP1.SGM 14DEP1 sradovich on DSK3GMQ082PROD with PROPOSALS Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules generated during military operations; and (v) Army personnel, their family members, contractors, and other related third parties. (2) Litigation. Litigation includes all pretrial, trial, and post-trial stages of all existing or reasonably anticipated judicial or administrative actions, hearings, investigations, or similar proceedings before civilian courts, commissions, boards, or other tribunals, foreign and domestic, and state legislative proceedings. This includes: (i) Responses to discovery requests, depositions, and other pretrial proceedings. (ii) Responses to formal or informal requests by attorneys or others in existing or reasonably anticipated litigation matters. (3) Private Litigation. (i) In which the Army has no interest. Litigation in which neither the United States, nor an employee in an official capacity, is a party and in which the United States has no identifiable direct or indirect legal, contractual, financial, administrative, mission-related or other interest. Examples of litigation likely to be considered private include personal bankruptcy; civil consumer, divorce and custody proceedings; or landlord-tenant or similar litigation of individual Army civilian or military personnel, past or present. State or local criminal litigation not involving prosecution of Army personnel, contractors, or manufacturers of Army equipment or property may also qualify. The SJA or legal advisor will determine whether a particular case qualifies as private litigation where the Army has no interest. (ii) In which the Army has an interest. In cases where the Army is not a named party, the Army may still have an interest. These may include: Cases where the Army may incur costs as a result of the litigation; cases where Army operations or policies are implicated; cases which could impact Army property or water rights; disclosure of information harmful to national security or otherwise protected from disclosure; litigation involving Army contractors or manufacturers of Army equipment and property; incidents arising from Department of Defense or Army activities; litigation involving the personal injury of Army personnel or family members, or the personal injury of third parties by Army personnel; the foreign or civilian criminal prosecution of Army personnel, family members, contractors, or manufacturers of Army equipment or property; or civil or family law litigation which may overlap or relate to the foreign or civilian criminal prosecution VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 of Army personnel or family members. If an SJA or legal advisor cannot clearly determine whether Army interests are implicated in a particular case, consult with the appropriate litigating division. (4) DA Personnel. DA Personnel includes the following: (i) Present, former and retired Army military personnel, including the U.S. Army Reserve, regardless of current status. (ii) Present, former and retired civilian employees of the U.S. Army, regardless of current status. (iii) Soldiers of the Army National Guard of the United States (title 10 U.S.C.) and, when specified by statute or where a Federal interest is involved, Soldiers in the Army National Guard (title 32, U.S.C.). It also includes technicians under 32 U.S.C. 709. (iv) USMA cadets. (v) Nonappropriated fund employees. (vi) Foreign nationals who perform services for DA overseas. (vii) Other individuals hired by or for the Army, including individuals hired through contractual agreements by or on behalf of the Army. (5) Demand. Subpoena, order, or other demand of a court of competent jurisdiction, or other specific authority, to produce, disclose, or release official Army information (or other official federal agency information subject to release under this chapter) or which require that DA Personnel testify or appear as witnesses. § 516.2 Release authority. (a) Release Authorities for Official Information. The following personnel are the release authorities for official Army information in the following litigation situations (See figure 1): (1) United States is a party or has an interest. The appropriate litigating division is the release authority for all official, unclassified Army information in cases in which the United States is a party or has a direct interest; they also make all such release decisions for cases in which the information could be used in a claim or litigation against the United States. If uncertainty exists as to whether a given situation constitutes private litigation, forward the request to the appropriate litigating division (See § 516.1(d)). (2) Non-classified information where the United States has no interest. SJAs and legal advisors are the release authorities for official, unclassified factual information held by their respective commands or organizations in cases of private litigation. (3) Classified information. Litigation Division is the release authority for official information or appearance of DA PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 90273 personnel as witnesses in litigation involving terrorism, espionage, nuclear weapons, intelligence sources and methods, or involving records otherwise privileged from release, including classified information. Refer any requests involving such information to the General Litigation Branch, Litigation Division. (4) Medical treatment records. Army Medical Center or Command Judge Advocates or supporting SJAs are the release authorities for official, unclassified factual information in private litigation which involves the release of medical and other records and information within the custody, control or knowledge of the Center or Command Judge Advocates’ or supporting SJAs’permanent station hospital and its personnel. Medical records may only be released in compliance with the Health Insurance Portability and Accountability Act (HIPAA) regulations published at 45 CFR parts 160, 162, and 164. Upon court order or subpoena, if appropriate under §§ 516.3–4 (Release Determination and Requestor Responsibilities), and if compliant under the HIPAA regulations, Center or Command Judge Advocates, SJAs and legal advisors may furnish to the attorney for the injured party or the tortfeasor’s attorney or insurance company a copy of the narrative summary of medical care that relates to a claim initiated by the United States for recovery of costs for medical care or property claims, pursuant to the Federal Medical Care Recovery Act (42 U.S.C. 2651), the Federal Claims Collection Act (31 U.S.C. 3711), the Third Party Collection Program (10 U.S.C. 1095), or Executive Order No. 12988, Civil Justice Reform. If additional medical records are requested by subpoena or court order, only those that are relevant and necessary to the litigation or pending action will be furnished. If furnishing copies of medical records would prejudice the cause of action, the matter will be reported to Litigation Division. (5) Substance abuse treatment records. Subpoenas for alcohol abuse or drug abuse treatment records must be processed under 42 U.S.C. 290dd–3 and 290ee–3, and Public Health Service regulations published at 42 CFR 2.1– 2.67. (6) Armed Services Board of Contract Appeals cases. Contracting officers, in consultation with the appropriate servicing SJA, are authorized to release official information to be used in litigation before the Armed Services Board of Contract Appeals, per the Federal Acquisition Regulation (FAR), subpart 5.4., and applicable DOD directives and Army instructions. E:\FR\FM\14DEP1.SGM 14DEP1 90274 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules sradovich on DSK3GMQ082PROD with PROPOSALS Responses to such requests must be coordinated with the assigned trial attorney at the USALSA Contract and Fiscal Law Division. (b) Approval Authorities for Witness Testimony. The following personnel are the approval authorities for witness testimony by former, retired and current Army personnel in the following litigation situations: (1) Cases where the United States has an interest. The appropriate litigating division, as identified in § 516.1, is the approval authority for personnel who may appear and testify as witnesses in contemplated or pending litigation where the United States is a party or has an interest. (2) Classified, sensitive, or privileged information. Litigation Division is the approval authority for the appearance of DA personnel as witnesses in litigation involving terrorism, espionage, nuclear weapons, intelligence sources and methods, or involving records otherwise privileged from release, including classified information. (See § 516.1(b)). Refer any requests involving such information to the General Litigation Branch, Litigation Division. (3) Non-classified Information where the United States has no interest. SJAs, Chief Counsel, or their equivalent, are the approval authorities for individuals within their organizations or commands who may appear for witness testimony, depositions, or interviews or make declarations on factual matters within their personal knowledge when it involves private litigation where the United States has no interest. (4) Medical Information. Commanders of Medical Commands, in consultation with their legal advisors, are the approval authorities for medical providers and other hospital personnel assigned to their command. This includes witness testimony, depositions, interviews or declarations VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 on factual matters within their personal knowledge when it involves private litigation where the United States has no interest. (5) Expert testimony. Litigation Division is the approval authority for expert testimony. (See § 516.10). (6) Former and Retired DA Personnel. The appropriate litigating division is the approval authority for witness testimony relating to official information. (See § 516.2). (c) Referral to the Appropriate Litigating Division. When the local Release Authority does not have the authority to resolve the matter, it will be referred to the appropriate litigating division. (See § 516.1a.). (1) Nature of the Request. (i) Refer affirmative litigation initiated by the United States for recovery of costs for medical care or property claims (e.g., medical care recovery or Army property damage or loss cases) to the Tort Litigation Branch, Litigation Division. (ii) Refer matters concerning patents, copyrights, trade secrets, or trademarks to the Regulatory Law and Intellectual Property Division. (iii) Refer taxation matters to the Contract and Fiscal Law Division. (iv) Refer matters concerning communication, transportation, or utility service proceedings to the Regulatory Law and Intellectual Property Division. (v) Refer environmental matters, to include water rights and affirmative environmental cost recovery to the Environmental Law Division. (vi) Refer matters arising from the navigation, civil works, Clean Water Act 404 permit authority, environmental response activities, and real property functions of the U.S. Army Corps of Engineers (USACE) Office of Chief Counsel. (vii) Refer all bid protests, and contract appeals cases before the PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 ASBCA and GAO to the Contract and Fiscal Law Division. (viii) Refer procurement fraud matters, including qui tam cases, to the Procurement Fraud Division, OTJAG. (ix) Refer all other matters to the General Litigation Branch, Litigation Division. (2) Information to Submit with Referrals. Provide the following data when referring matters pursuant to § 516.2(c): (i) Copy of the request for official information and all available relevant pleadings (e.g., complaint, motions, court rulings). (ii) Parties (named or prospective) to the proceeding, their attorneys, and case number. (iii) Party making the request (if a subpoena, indicate moving party) and his or her attorney. (iv) Name of tribunal in which the proceeding is pending. (v) Nature of the proceeding. (vi) Date of receipt of request or date and place of service of subpoena. (vii) Name, grade, position, and organization of person receiving request or served with subpoena. (viii) Date, time, and place designated in request or subpoena for production of information or appearance of witness. (xi) Nature of information sought or document requested, and place where document is maintained. (x) A copy of each document requested. Contact the appropriate litigating division if this would be burdensome and unnecessary to a decision whether to release, redact, or withhold a particular document. (xi) Name of requested witness, expected testimony, requested appearance time and date, and whether witness is reasonably available. (xii) Analysis of the request with recommendations. E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules 90275 VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00021 Fmt 4702 Sfmt 4725 E:\FR\FM\14DEP1.SGM 14DEP1 EP14DE16.025</GPH> sradovich on DSK3GMQ082PROD with PROPOSALS FIGURE 1 RELEASE AUTHORITIES FOR OFFICIAL ARMY INFORMATION IN PRIVATE UTIGA TION 90276 sradovich on DSK3GMQ082PROD with PROPOSALS § 516.3 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules Release determination. § 516.4 (a) Release authorities must ensure requestors state in writing the nature and relevance of the official information they want and include the documentation required by § 516.4. The appropriate release authority should evaluate the request in light of 32 CFR part 97 and United States, ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) and other relevant case law. Release authorities must consider the following factors when determining whether to approve or deny a request for official information: (1) Whether the request is unduly burdensome, inappropriate under the applicable court rules or otherwise irrelevant. Considerations include the size and scope of the request; amount of preparation and transportation time for the witness; mission impact of requiring the witness to be pulled away from current duties to participate; mission impact of requiring responding office personnel to be pulled away from their current assignments to respond to document search, review and production requests; and the potential cumulative burden upon the agency in granting similar requests. (2) Whether the disclosure is inappropriate under the rules of procedure governing the matter in which the request arose. (3) Whether the disclosure violates a statute, executive order, regulation, or directive. (4) Whether the disclosure (including release in camera) is inappropriate under the relevant substantive law concerning privilege. (5) Whether the disclosure reveals information properly classified pursuant to the DOD Information Security Program under AR 380–5, unclassified technical data withheld from public release pursuant to 32 CFR 250 and DOD Directive 5230.25 or other sensitive or privileged information exempt from disclosure. (6) Whether the disclosure would interfere with ongoing enforcement proceedings, compromise constitutional rights, reveal the identity of an intelligence source or confidential informant, disclose trade secrets or confidential, commercial, or financial information, or would otherwise be inappropriate under the circumstances. (7) Whether disclosure violates any person’s expectation of confidentiality or privacy. (8) Whether any other factor or consideration relevant to the circumstances warrants approving or denying the request. VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 Requestor responsibilities. (a) Individuals seeking official information must submit, at least 14 days before the desired date of production, a detailed written request setting forth the nature and relevance to the litigation or proceeding of the official information sought. Requests for official information involving an employee’s appearance and/or production of documents must comply with 32 CFR part 97 and this part. At a minimum, requests must include: (1) Copy of the complaint or criminal charges and relevant pleadings; (2) Date of the requested appearance or production; (3) Party for whom the request is made; (4) Reason why official information sought is relevant and necessary to requestor and litigation; (5) For witness requests, name, grade, position, and organization of the witness if known, and substance of the expected testimony. Requestors should not contact potential witnesses without first coordinating with the witness’ SJA or legal advisor, or the appropriate litigating division. (b) Requests from DOJ for DA personnel as witnesses need not follow the requirements above. See § 516.6 for the witness request procedures for DOJ. § 516.5 Classified, Privacy Act Protected, Sensitive or Privileged Information. (a) Classified information. Only Litigation Division may authorize the release of information or appearance of DA personnel as witnesses in litigation involving classified matters. Refer any requests involving such information to the General Litigation Branch, Litigation Division. (b) Information Protected by the Privacy Act. (1) Privacy Act (5 U.S.C. 552a) records include any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his education, financial transactions, medical history, and criminal or employment history and that contains his name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. (2) A demand (see definition in § 516.1) signed by an attorney or clerk of court for records protected by the Privacy Act, 5 U.S.C. 552a, does not justify the release of the protected records. This includes a subpoena issued on behalf of a Federal or State Grand Jury. The release authority should explain to the requestor that the Privacy Act precludes disclosure of PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 records in a system of records without the written consent of the subject of the records or ‘‘pursuant to the order of a court of competent jurisdiction’’ (See fig 7–2 and fig 7–3 Sample Touhy Compliance response). (3) In connection with discovery in federal or state litigation, Privacy Act records will only be released with consent of the individual or under a court order specifically signed by a judge or magistrate of a court of competent jurisdiction. (See 5 U.S.C. 552a(b)(11); Doe v. DiGenova, 779 F.2d 74 (DC Cir 1985); Bosaw v. NTEU, 887 F. Supp. 1199 (S.D. Ind. 1995); and Boron Oil Co. v. Downie, 873 F. 2d 67 (4th Cir. 1989).) More specifically, unclassified Privacy Act records otherwise protected from release, may be released under the following conditions: (i) Release by Court Order. The court order must state that the court finds that the law authorizes release of the records and the records should be released. If the order or subpoena does not contain these findings the release authority may release the records to a clerk of the court empowered by local statute or practice to receive the records under seal subject to the release authority’s request that the clerk of court withhold the records from the parties until the court issues an order determining that the records should be released. (ii) Release to the Requestor. Privacy Act records may be released to the requestor if a valid Privacy Act consent waiver from the individual to whom the record(s) pertain is submitted with the request. Otherwise, Privacy Act records should only be released pursuant to court order as set forth in (i) above. (c) Inspector General (IG) records or testimony. IG records, and information obtained through performance of IG duties, are official information under the exclusive control of the Secretary of the Army. (see AR 20–1, Chapter 3.) IG records frequently contain sensitive official information that may be classified or obtained under guarantees of confidentiality. Army personnel will not release IG records or disclose information obtained through performance of IG duties without the approval of the Secretary of the Army, The Inspector General (TIG), TIG Legal Advisor, or the Chief, Litigation Division. (d) Safety records, information, and witnesses. Safety records and information produced by commands, installation safety offices, and the U.S. Army Combat Readiness Command and Safety Center (USACRC) (and other DOD Service Components) may contain ‘‘privileged safety information.’’ See E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules sradovich on DSK3GMQ082PROD with PROPOSALS DOD Instruction 6055.07 and AR 385– 10. (1) Litigation Division and the USACRC Command Judge Advocate will consult with the appropriate United States Attorney’s Office regarding assertion of appropriate privileges. To assess the appropriate privilege, safety reports and records will be provided to Litigation Division in complete unredacted form along with a separate copy reflecting identification of all privileged portions. (2) When requested, contact information for safety personnel witnesses and technical experts will be provided to Litigation Division. As needed, Litigation Division will provide safety records, information, and witness VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 contact information to the U.S. Attorney’s Office for evaluation. (3) Providing safety records, information, and access to safety personnel to Litigation Division or the U.S. Attorney’s Office is not considered a ‘‘release,’’ under DOD safety regulations. (4) All parties handling privileged safety information are obligated to observe confidentiality, protected safety-use requirements, and all other privileges against public disclosure. Privileged safety reports, records, information, or testimony will not be used in litigation without appropriate disclosure safeguards, such as a protective order, agreement, or order to seal. PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 90277 (e) Technical Data. Commands should refer requests for unclassified technical data with military or space application which should be withheld from public release pursuant to 32 CFR 250 and DOD Directive 5230.25, Withholding of Unclassified Technical Data from Public Disclosure, November 6, 1984 (including Change 1, August 18, 1995) to the General Litigation Branch, Litigation Division. (f) Other privileged information. Unless otherwise specified, all questions and issues regarding privileged information will be referred for consultation to General Litigation Branch, Litigation Division. BILLING CODE 5001–03–P E:\FR\FM\14DEP1.SGM 14DEP1 90278 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules FIGURE 2 (Sample subpoena duces tecum Response) FORT SMITH, NORTH DAKOTA 1'!41ll!l 2,2017 Administrative Law Branch Dear Ms. Baltimore: {If there are Privacy Act issues include the paragraph below} documents contain information the Privacy with the you must either a written release authorization signed the individual to whom the documents ordered release a of a court of by a clerk or other official is the 5 U.S. C.§ 552a. 779 F2d74 nature and relevance of once we receive the <PnniTI"'rl 340 U.S. 462 1120 VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00024 Fmt 4702 Sfmt 4725 E:\FR\FM\14DEP1.SGM 14DEP1 EP14DE16.026</GPH> sradovich on DSK3GMQ082PROD with PROPOSALS {If the requestors indicate that they will file a motion to compel production without submitting a Touhy request or before the Army can respond to the Touhy request insert the following.} Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules 90279 2- Please be advised that should seek to enforce this first submitting a Touhy request) this may request that the Department of Justice inform the court or tribunal that you have not complied with the applicable law and and seek to or the subpoena in federal court. call (Signature) Robert A. Black Lieutenant U.S. Administrative Law VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00025 Fmt 4702 Sfmt 4725 E:\FR\FM\14DEP1.SGM 14DEP1 EP14DE16.027</GPH> sradovich on DSK3GMQ082PROD with PROPOSALS CF: 90280 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules FIGURE 3 (Sample Touhy Compliance Response) DEPARTMENT OF THE ARMY 2017 Administrative Law Branch Dear Ms. Weare in and in court (Include the denied because your discussed below, is of official In accordance With the authorities set forth in 32 CFR must confirm your to reasonable fees and set the maximum you are to for the time resources to process this of the fee can be found in 32 CFR. will cost The fee is r<>r''"'"''""" of the ofthe "'"'""'"''"'" material or witness,* wttlann'n"'j~"" [If there are Privacy Act issues include the paragraph below} VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00026 Fmt 4702 Sfmt 4725 E:\FR\FM\14DEP1.SGM 14DEP1 EP14DE16.028</GPH> sradovich on DSK3GMQ082PROD with PROPOSALS release order a of court, notary, or Cir. Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules sradovich on DSK3GMQ082PROD with PROPOSALS § 516.6 Releasing official information to the Department of Justice. In routine cases where the Department of the Army is neither a party nor has an interest in the litigation, SJAs may release unclassified and unprivileged official information to DOJ or the U.S. Attorney’s Office on request. In connection with any such release, DOJ or the U.S. Attorney’s Office must be provided sufficient VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 information to determine whether the requested information is classified, privileged or protected by the Privacy Act or other applicable confidentiality laws, to ensure for its proper handling. DOJ or U.S. Attorney requests for classified information will be coordinated through Litigation Division prior to action. Prior to pursuing declassification of official information, Litigation Division will coordinate with the requesting DOJ attorney to PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 determine whether declassification of the information is appropriate or advisable under the circumstances. § 516.7 Complying with requests or demands for official information, subpoenas, and witness testimony. (a) Request or demand for official information and witness testimony will be resolved by the SJA or legal advisor pursuant to this subpart. The appropriate litigating division will be E:\FR\FM\14DEP1.SGM 14DEP1 EP14DE16.029</GPH> BILLING CODE 5001–03–C 90281 sradovich on DSK3GMQ082PROD with PROPOSALS 90282 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules consulted on issues that cannot be resolved by the SJA or legal advisor or when multiple release authorities are involved. (b) Local SJAs and command legal advisors will assist DA personnel within their commands and in their geographic area regarding compliance with subpoenas for official information and witness testimony. Such assistance should include providing advice and attending interviews, depositions, and trial testimony. (c) Where an immediate response is required. A demand, including a subpoena or court order, should never be ignored. If a response to a subpoena or court order is required before a release determination can be made, the SJA or legal advisor will do the following: (1) Attempt to resolve the issue through informal efforts. Inform the requestor that the demand is under review and, if applicable, that the requestor must provide additional information in accordance with this part in order for a release determination to be made. Seek additional time to respond to the demand and to have the requestor voluntarily withdraw the subpoena or stay the court order. (2) If informal efforts to resolve the issue are unsuccessful or if time does not permit attempting informal efforts, contact the appropriate litigating division. When the appropriate litigating division is not available, contact the appropriate USAO directly. Request that the USAO seek to stay the subpoena or court order pending the requestor’s compliance with this part. (3) If efforts to stay the subpoena or court order are unsuccessful, seek to quash the subpoena or court order through coordination with the appropriate litigating division or USAO. (4) If the USAO is challenging the subpoena or court order, the SJA or legal advisor will direct the affected personnel to respectfully decline to comply with the subpoena or court order pending resolution of the challenge. (d) Subpoenas seeking protected or privileged information. When privilege, statute, or regulation prohibits releasing the subpoenaed information, the SJA or legal advisor should attempt to resolve the matter with the requestor, or, after consultation with the appropriate litigating division and with the assistance of the local U.S. Attorney’s Office, appear through counsel and explain the matter to the court. To resolve the matter, SJAs or legal advisors should: VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 (1) Communicate with the counsel requesting the subpoena. (See sample letter at fig 7–3). (2) Explain the restrictions on release. (3) Provide any releasable information. (4) Suggest withdrawing the subpoena. (e) Coordination with the US Attorney concerning subpoenas for protected or privileged information. If informal efforts to resolve the situation are unsuccessful, the appropriate litigating division may ask the local U.S. Attorney’s Office to file a motion to quash or a motion for a protective order or other appropriate legal recourse. The records privileged or otherwise protected from release should be retained by the custodian pending the court’s ruling. (f) Release of Information through Witness Testimony. If the approval authority determines that the official information may be released, DA personnel may be interviewed, deposed, or appear as a witness in court provided such interview or appearance is consistent with the requirements of this subpart. An Army attorney should ordinarily be present, as the legal representative of the Army, during any interview or testimony. If a question seeks information not previously authorized for release, the legal representative will advise the witness not to answer. If necessary to avoid release of the information, the legal representative will advise the witness to terminate the interview or deposition, or by the Assistant U.S. Attorney in the case of testimony in court, advise the judge that DOD directives and Army regulations preclude the witness from answering without approval from the appropriate litigating division. Every effort should be made, however, to substitute releasable information and to continue the interview or testimony. (1) If the absence of a witness from duty will interfere seriously with the accomplishment of a military mission, the SJA or legal advisor will advise the requesting party and attempt to make alternative arrangements. If these efforts fail, the SJA or legal advisor will consult on the matter with appropriate litigating division. (2) When requested by the U.S. Attorney’s Office, the SJA or legal advisor will ensure that no witnesses involved in litigation are reassigned from the judicial district without first advising the U.S. Attorney’s Office. If this is not feasible, or if a satisfactory arrangement cannot be reached with the U.S. Attorney’s Office, the SJA or legal advisor should notify the Litigation Division. PO 00000 Frm 00028 Fmt 4702 Sfmt 4702 (g) Release of Records. If the Release Authority, after considering the factors set forth in § 516.3, determines that all or part of requested official records are releasable, copies of the records should be furnished to the requestor. In absence of a protective order issued by a court of competent jurisdiction, records protected by the Privacy Act should only be released to the court issuing the applicable subpoena or order, or pursuant to a signed Privacy Act Waiver from the individual to whom the records pertain. (See § 516.5(b)) (h) Authenticating Records. Records custodians should authenticate official Army documents for civil litigation through written certification, rather than personally appearing and testifying. DA personnel will submit authenticated copies rather than originals of documents or records for use in legal proceedings, unless directed otherwise by the appropriate litigating division (See 28 U.S.C. 1733.) The DA Form 4, Department of the Army Certification for Authentication of Records is used to authenticate Army records or documents. (See Figure 5). Documents attached to a properly prepared and sealed DA Form 4 are selfauthenticating. (See Fed. R. Evid. 902). A DA Form 4 need not be prepared until the trial attorney presenting the Government’s case identifies documents maintained at the installation level that he or she will need at trial. Once documents are identified, the custodian of the documents will execute his or her portion of the DA Form 4. The custodian certifies that the documents attached to the DA Form 4 are true copies of official documents. Documents attached to each form should be identified generally; each document need not be mentioned specifically. Only the upper portion of the form should be executed at the local level. Upon receipt of the DA Form 4 with documents attached thereto, HQDA will affix a ribbon and seal and deliver it to The Office of The Administrative Assistant to The Secretary of the Army or the Chief, Litigation Division. Either The Office of The Administrative Assistant to The Secretary of the Army or the Chief, Litigation Division will place the official Army seal on the packet. Use the simplest authentication procedure permissible, including any suitable alternative suggested by the court. (i) SJAs or legal advisors should promptly report any subpoenas from foreign courts requiring records, files, or documents to Litigation Division, and comply with the guidance in § 516.7. BILLING CODE 5001–03–P E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules 90283 FIGURE 4 (Sample deposition witness approval response) DEPARTMENT OF THE ARMY OFFICE OF THE STAFF J!JOG!l ADVOCATE: 123 STANDARD STREET FORT SMITH, NORTH OAKOTAl!41l!S 4,2017 SUBJECT: Plaintiff v. of John Smith and Jane Jackson, in the case of File No.: Court of Fulton 0. Wendell Van &Assoc. St NE DC 20543 Dear Mr. Holmes: a. information that is cta:ss1rrreo. onv•r1ec1ed. or otheM'ise nm,t.>r:tArl from disclosure. 32 C.F.R § 516. b. information the disclosure of whidh would violate the Act, absent a written release authorization the individual to whom the information or a court ordered release a of a court of cnrnnE>fAr1t 5 USC§ 552a. VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00029 Fmt 4702 Sfmt 4725 E:\FR\FM\14DEP1.SGM 14DEP1 EP14DE16.030</GPH> sradovich on DSK3GMQ082PROD with PROPOSALS c. information the disclosure of which would interfere with nnrm1r1n enforcement compromise constitutional reveal •nt<>~l•nAnt'<> source or informant, disclose secrets or "''"'"1"'1w confidential commercial or financial or otheM'ise be ina,no:ron,riaite the circumstances. 32 CFR § 516. See. e.g., Am. Servs., 90284 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules Cir, cert 12-1233, 2013 WL !hat relates to this authorization. First, an 32 CFR Arnn\r.~11'!~'>tn 5Ht States. 32 CFR § dei;xlS~tio transcript at no Finally, approval is limited to the other forum or areas and does not extend to of the individuals is later requested trial, a new CFR. § Our sole concern in this matter is to The will not block access entitled, look forward to dates the of the individuals. feel free to contact me at VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00030 Fmt 4702 Sfmt 4725 E:\FR\FM\14DEP1.SGM 14DEP1 EP14DE16.031</GPH> sradovich on DSK3GMQ082PROD with PROPOSALS (Signature) Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules 90285 FIGURE 5 (Sample DA Form 4) DEPARTMENT OF Tin: AB.MY VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00031 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 EP14DE16.032</GPH> sradovich on DSK3GMQ082PROD with PROPOSALS DA FORM 4, l'eB 111911 90286 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules BILLING CODE 5001–03–C § 516.8 Testimony in private civil litigation. sradovich on DSK3GMQ082PROD with PROPOSALS (a) Capacity. Funding and duty status are determined by the capacity in which the personnel testifies and whether the individual is a Soldier or a civilian employee. (1) Official capacity. DA personnel testify in their official capacity when: (i) They testify regarding their official duties or produce official records on behalf of the U.S.; or (ii) They testify on matters that relate to their official duties or produce official records on behalf of a party other than the U.S. (iii) They produce official records on behalf of a party other than the government. (b) Unofficial capacity. DA personnel testify in an unofficial capacity when they testify on behalf of the U.S. or another party on a matter unrelated to their official duties. (c) Funding Availability. 28 U.S.C. 1821, the Joint Ethics Regulation (JER), the Joint Travel Regulations (JTR), 28 CFR part 21, and Army regulations govern travel allowances for DA personnel appearing as witnesses in litigation. The general guidelines for funding witness travel are: (1) DA personnel are entitled to government funded travel expenses when testifying in an official capacity on behalf of the U.S. (2) DA personnel are entitled to government funded travel expenses when testifying in an unofficial capacity on behalf of the U.S. (3) DA uniformed personnel are entitled to government funded travel expenses when testifying in an official capacity for non-federal government agencies when: (i) The case is directly related to an agency or agency employee, and (ii) The case is one in which the agency has a particularly strong, compelling and genuine interest. (4) DA personnel are not entitled to government funded travel expenses when testifying in an official or unofficial capacity on behalf of a party other than the U.S. (5) See the JTR for exceptions to these general guidelines and for current guidance regarding funding responsibilities for witness travel. § 516.9 Department of Justice witness request in litigation involving the United States. (a) Department of Justice request for DA personnel as witnesses must be coordinated through the General Litigation Branch, Litigation Division. DA personnel receiving a subpoena or witness request from DOJ should VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 contact the General Litigation Branch for assistance. (b) Cases in which the Army is a party to the litigation. When DOJ requests current DA personnel to appear as witnesses and in cases involving an activity connected to their employment, the travel expenses are payable by the employing command or activity. (See 28 CFR 21.2). (1) DOJ initiates a witness request by sending a subpoena and a Request for Personnel to Testify as Government Witness form to the General Litigation Branch. The notice should include the witness’ name, social security number, residence or duty station address, phone number, email address or fax number, the location, hour and date of appearance, and number of days needed. DOJ should also include the purpose of the testimony. (2) The General Litigation Branch will notify the witness and the SJA or legal advisor at the employing command or activity and provide them with travel instructions. If the case does not involve the employee’s command or activity, the command or activity represented in the litigation will fund the travel expenses, issue a travel authorization/order for the required travel, and provide the necessary line of accounting. (28 CFR 21.2(d)(1) (JTR C4975–C4H–2)). (c) Cases in which the Army is not a party to the litigation. When DOJ requests current DA personnel to appear as a witness on behalf of the U.S. in an unofficial capacity, the employee’s travel expenses are payable by DOJ. The General Litigation Branch will coordinate with the witness and the witness’ command or activity to provide travel instructions and DOJ’s line of accounting. (1) DOJ initiates a witness request by sending a subpoena and a Request for Personnel to Testify as Government Witness form to the General Litigation Branch. The notice should include the witnesses’ name, social security number, residence or duty station address, phone number, email address or fax number, the location, hour and date of appearance, and number of days needed. The requestor should also include the purpose of the testimony. (2) The General Litigation Branch will notify the witness and the SJA or legal advisor at the employing command or activity and provide them with travel instructions and a DOJ line of accounting. The witnesses’ command prepares travel orders. Upon completion of the travel the witness will seek reimbursement from DOJ. PO 00000 Frm 00032 Fmt 4702 Sfmt 4702 § 516.10 Expert or opinion testimony by DA personnel. (a) General rule. Former and current DA personnel will not provide, with or without compensation, opinion or expert testimony either in private litigation or in litigation in which the United States has an interest for a party other than the United States. (See fig 7– 6, Sample Expert Witness Denial Letter.) An SJA or legal advisor must coordinate all requests for expert testimony with the appropriate litigating division. The Chief, Litigation Division is the approval authority for all expert testimony requests. (b) Exception to the general prohibition. If a requestor can show exceptional need or unique circumstances, and the anticipated testimony will not be adverse to the interests of the United States, the Chief, Litigation Division, or designee, may grant special written authorization for current or former DA personnel to testify as expert or opinion witnesses at no expense to the United States. In no event may current or former DA personnel furnish expert or opinion testimony for a party whose interests are adverse to the interests of the United States in a case in which the United States has an interest. (c) AMEDD personnel. Members of the Army medical department or other qualified specialists may testify in private litigation (see fig 7–7, Sample of Doctor Approval Letter) under the following conditions: (1) The litigation involves patients they have treated, investigations they have made, laboratory tests they have conducted, or other actions they have taken in the regular course of their duties; and (2) Written authorization is obtained under § 516.1(b). AMEDD personnel must limit their testimony to factual matters such as: Their observations of the patient or other operative facts; the treatment prescribed or corrective action taken; course of recovery or steps required for repair of damage suffered; and, contemplated future treatment; and (3) Their testimony may not extend to expert or opinion testimony, to hypothetical questions, or to a prognosis not formed at the time of examination or treatment. (d) Court-ordered expert or opinion testimony. If a court or other appropriate authority orders expert or opinion testimony, the witness will notify the appropriate litigating division immediately. If the appropriate litigating division determines it will not challenge the subpoena or order, the witness will comply with the subpoena or order. The appropriate litigating E:\FR\FM\14DEP1.SGM 14DEP1 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules sradovich on DSK3GMQ082PROD with PROPOSALS division, through the local United States Attorney’s Office, will immediately communicate with the court on the matter (See United States ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)). (e) Expert witness fees. Provisions of the Joint Ethics Regulation and Federal law may limit the ability of DA personnel to retain expert or opinion witness fees. As a general rule, all such VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 fees tendered to DA personnel, to the extent they exceed actual witness travel, meals, and lodging expenses, will be remitted to the Treasurer of the United States. (f) Requests from DOJ. Requests for present or former DA personnel as expert or opinion witnesses from DOJ or other attorneys representing the United States will be referred to Litigation PO 00000 Frm 00033 Fmt 4702 Sfmt 4702 90287 Division unless the request involves a matter that has been delegated by the Litigation Division to an SJA or legal advisor. Current and former DA personnel may not furnish expert or opinion testimony for a party whose interests are adverse to the interests of the United States in a case in which the United States has an interest. BILLING CODE 5001–03–P E:\FR\FM\14DEP1.SGM 14DEP1 90288 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules FIGURE 6 (Sample expert witness response) DEPARTMENT OF THE ARMY OFFICE OF THE STAFF JUDGE ADVOCATE 123 STAi\IDARI:l STREET FORT SMITH, NORTH DAKOTA 64165 6,2017 in the case of Plaintiff of Fulton Dear Ms. McAllister: r"'<:<nn,,,, to your dated for as an witness in the case of Qt,.in+•,ffv. Defendant Your for the reasons below. witness appearances. The which the is not a a witness with an official t,::ml't!:>r,l"'v exists to assume that the despite express disclaimers to the the seeks to the unnecessary loss of the services of "''"·"'""'""'1 in connection with matters unrelated to their official r<>!::Jnon,"'t If their official mission and the duties are federal for conflicts of interest inherent in the appearance of its as witnesses on behalf of other than the United States. Even the appearance of such conflicts of interest undermines the trust and confidence in the of our Government This case does not the facts nel:;es>Sairv ,::,yu"'''""'u expert's You have not demonstrated an ex<~e!:lttonat or circumstance that warrants her appearance. The desired +o<>·rim.""" can be secured from VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00034 Fmt 4702 Sfmt 4725 E:\FR\FM\14DEP1.SGM 14DEP1 EP14DE16.033</GPH> sradovich on DSK3GMQ082PROD with PROPOSALS .,.,..,.m......... ,"' * Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules 90289 2- we are unable to sources. an exc:ep1 tion to the the interests of the United States feel free to contact me at xxx- (Signature) VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00035 Fmt 4702 Sfmt 4725 E:\FR\FM\14DEP1.SGM 14DEP1 EP14DE16.034</GPH> sradovich on DSK3GMQ082PROD with PROPOSALS Robert A. Black Colonel, U.S. Army Staff Judge Advocate 90290 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules FIGURE 7 (Sample doctor approval response) DEPARTMENT OF THE ARMY OFI'ICEOF FORT 7, 2017 "'"'"'m""'' for Medica! Personnel Witness DL {J(!I;fAn'f'IF<J'lf Civil Action File No .. John In the 1Surl<'!m1rCourt of Fulton Ms, Janet 901 N Street k'r«>Mit"' V\fV 92121 Dear Ms. Smith: This letter to John Rhule from Fort Defendant Pursuant to 32 CFR § conditions discussed below. • about his treatment of his ordered or other actions he in about factual matters such as his nh<'"'"·""t-""'"" "'"'"''"''i~"><>~"~ the corrective actions for treatment of The decision to is within the witness' discretion, The witness' n<>•-t'"'""'l'•"n must be at no expense to the VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00036 Fmt 4702 Sfmt 4725 E:\FR\FM\14DEP1.SGM 14DEP1 EP14DE16.035</GPH> sradovich on DSK3GMQ082PROD with PROPOSALS 32CFR §516. Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules 90291 -2- Our sole concern in this matter is to If you should have any X)()( the interests of the United States feel free to contact me at xxx- or (Signature) U,S, VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 PO 00000 Frm 00037 Fmt 4702 Sfmt 4702 E:\FR\FM\14DEP1.SGM 14DEP1 EP14DE16.036</GPH> sradovich on DSK3GMQ082PROD with PROPOSALS Advocate 90292 Federal Register / Vol. 81, No. 240 / Wednesday, December 14, 2016 / Proposed Rules BILLING CODE 5001–03–C § 516.11 Witnesses before foreign tribunals. (a) Referral to the SJA. Requests or subpoenas from a foreign government or tribunal for present DA personnel stationed or employed within that country to be interviewed or to appear as witnesses will be forwarded to the SJA of the command exercising general court-martial jurisdiction over the unit to which the individual is assigned, attached, or employed. The SJA will determine the following: (1) Whether a consideration listed in §§ 516.3 (a)(1)–(7) above applies. (2) Whether the information requested is releasable under the principles established in this subpart. (3) Whether the approval of the American Embassy should be obtained because the person is attached to the Embassy staff or a question of diplomatic immunity may be involved. (4) Whether coordination with OTJAG International Law office is necessary to respond to the request. (b) United States has an interest in the litigation. If the SJA determines that the United States has an interest in the litigation, the commander may authorize the interview or order the individual’s attendance in a temporary duty status. The United States will be deemed to have an interest in the litigation if it is bound by treaty or other international agreement to ensure the attendance of such personnel. (c) United States has no interest in the litigation. If the SJA determines that the United States does not have an interest in the litigation, the commander may authorize the interview or the appearance of the witness under the principles established in § 516.8. (d) Witnesses located outside the requestor’s country. If the requested witness is stationed in a country other than the requestor’s, the matter will be referred to the General Litigation Branch, Litigation Division. sradovich on DSK3GMQ082PROD with PROPOSALS § 516.12 Fees and expenses. (a) Fees and charges. DA personnel who respond to requests for official information may collect fees from the requestor for the direct costs of the search, duplication, and review of responsive information pursuant to the authority granted in 31 U.S.C. 9701 and according to the fee schedule and processing guidance outlined in DOD Instruction 7000.14, DOD Financial Management Policy and Procedures, Volume 11, Chapter 4 of DOD 7000.14– R, Financial Management Regulation, OMB Circular A–25 ‘‘User Charges’’, and 32 CFR 204 ‘‘User Fees.’’ VerDate Sep<11>2014 16:32 Dec 13, 2016 Jkt 241001 (b) Fee estimate. When a requestor is assessed fees for processing a request, the responding office must provide an estimate of assessable fees if requested. (c) Requestor. Requestors should indicate a willingness to pay fees associated with the processing of their request before the responding office begins processing the request for official information. No work on a request for official information should begin if: A requestor is unwilling to pay fees associated with a request; the requestor is past due in the payment of fees from a previous request for official information; or the requestor disagrees with the fee estimate. If fees are assessed, responding offices should receive payment before releasing the documents. (d) Computation of fees. The Schedule of Fees and Rates in 32 CFR 204.9 will be used to compute the direct costs of the search, review, and duplication associated with processing a given request for official information. Fees should reflect direct costs (i.e., expenditures actually incurred) for search, review, and duplication of responsive documents. DA Personnel will ensure that no fee is assessed for the benefits listed in 32 CFR 204.8 or where otherwise prohibited. (e) Search. The term ‘‘search’’ includes all time spent looking, both manually and electronically, for material that is responsive to a request. Search also includes a page-by-page or line-by-line identification (if necessary) of material in the record to determine if it, or portions thereof are responsive to the request. Responding offices should ensure that searches are done in the most efficient and least expensive manner so as to minimize costs for both the responding office and the requestor. (f) Review. The term ‘‘review’’ refers to the process of examining documents located in response to a request for official information to determine whether release is appropriate under this subpart. It also includes processing the documents for disclosure, such as redaction prior to release. Review does not include the time spent resolving general legal or policy issues regarding the release determination. (g) Duplication. The term ‘‘duplication’’ refers to the process of making a copy of a document in response to a request for official information. For duplication of electronic information for delivery in an electronic format, the actual cost, including the operator’s time, will be charged, but not a ‘‘per page’’ charge unless hardcopy documents were duplicated and handled in order to PO 00000 Frm 00038 Fmt 4702 Sfmt 4702 reduce them to an electronic format for delivery. (h) Release of records of other agencies. An individual requesting records originating in agencies outside DA (e.g., FBI reports, local police reports, civilian hospital records) that are also included in Army records should be advised to direct his or her inquiry to the originating agency. Nevertheless, referring requesters to other agencies does not absolve DA personnel of the requirements to respond to court orders or subpoenas. § 516.13 News media and other inquiries. News media inquiries regarding litigation or potential litigation will be referred to the appropriate public affairs office. DA personnel will not comment on any matter currently or potentially in litigation without proper clearance. Local public affairs officers will refer press inquiries to HQDA (SAPA–OSR), WASHINGTON, DC 20310–1500, with appropriate recommendations for review and approval by the Office of the Chief of Public Affairs. All releases of information regarding actual or potential litigation will be coordinated with Litigation Division prior to release. Normally, DOJ is responsible for responding to media inquiries regarding cases in federal litigation. For the Judge Advocate General. Francis P. King, Colonel, Judge Advocate, Executive Officer. [FR Doc. 2016–29835 Filed 12–13–16; 8:45 am] BILLING CODE 5001–03–P DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers 33 CFR Part 334 East Pearl River, Within the Acoustic Buffer Area of the John C. Stennis Space Center, and Adjacent to Lands, in Hancock County, Mississippi; Danger Zone AGENCY: U.S. Army Corps of Engineers, DoD. Notice of proposed rulemaking and request for comments. ACTION: The U.S. Army Corps of Engineers (Corps) is proposing to revise the existing regulations for a danger zone at the Naval Special Warfare Center (NSWC) N31 Branch within the acoustic buffer of the John C. Stennis Space Center on the East Pearl River, in Hancock County, Mississippi. The Navy requested establishment of a danger zone on waterways and tributaries of the SUMMARY: E:\FR\FM\14DEP1.SGM 14DEP1

Agencies

[Federal Register Volume 81, Number 240 (Wednesday, December 14, 2016)]
[Proposed Rules]
[Pages 90270-90292]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29835]


=======================================================================
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DEPARTMENT OF DEFENSE

Department of the Army

32 CFR Part 516

[Docket No. USA-2015-0016]
RIN 0702-AA69


Release of Official Information and Appearance of Witnesses in 
Litigation

AGENCY: Department of the Army, DoD.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Department of the Army proposes to amend its regulation 
concerning policies and procedures for release of official information 
and testimony of Army witnesses in federal and state courts where the 
Army or Department of Defense (DoD) has an interest in the matter. This 
regulation was last published in the Federal Register on July 29, 1994 
(59 FR 38236). At that time, a complete Army Regulation was codified. 
This revision removes a large portion of the currently codified part 
that does not apply to the public, and is now included in DoD internal 
guidance. Army Regulation 27-40, Litigation, dated 19 September 1994, 
is the corresponding document where the internal guidance is located.

DATES: Consideration will be given to all comments received by: 
February 13, 2017.

ADDRESSES: You may submit comments, identified by 32 CFR part 516, 
Docket No. USA-2015-0016 and or RIN 0702-AA69, by any of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Deputy Chief Management 
Officer, Directorate for Oversight and Compliance, 4800 Mark Center 
Drive, ATTN: Box 24, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
Federal Register document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Major Thomas S. Hong, (703) 693-1093; 
thomas.s.hong.mil@mail.mil">thomas.s.hong.mil@mail.mil.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The rule discusses departmental responsibilities, procedures for 
service of process, procedures for government officials sued in their 
official capacities, and procedures for requests for release of 
official information, to include witness testimony. The rule also 
discusses the release of official information and the appearance of 
present and former Army personnel as witnesses in response to requests 
for interviews, notices of depositions, subpoenas, and other requests 
or orders related to judicial or quasi-judicial proceedings.
    For the purposes of this rule, Army personnel include the 
following:
     Present, former and retired Army military personnel, 
including the U.S. Army Reserve, regardless of current status.
     Present, former and retired civilian employees of the U.S. 
Army, regardless of current status.
     Soldiers of the Army National Guard of the United States 
(Title 10, U.S.C.) and, when specified by statute or where a Federal 
interest is involved, Soldiers in the Army National Guard (Title 32, 
U.S.C.).
     Technicians under 32 U.S.C. 709.
     USMA cadets.
     Nonappropriated fund employees.
     Foreign nationals who perform services for the Army 
overseas.
     Other individuals hired by or for the Army, including 
individuals hired through contractual agreements by or on behalf of the 
Army.

Background

    This regulation was most recently published in the Federal Register 
on July 29, 1994 (59 FR 38236). It implements 32 CFR part 97. 
Department of Defense Directive 5405.2, ``Release of Official 
Information in Litigation and Testimony by DoD Personnel as Witnesses'' 
(available at http://www.dtic.mil/whs/directives/corres/pdf/540502p.pdf) is where DoD's internal guidance that corresponds to 32 
CFR part 97 is located. The proposed revision also removes a large 
portion of the currently codified part that does not apply to the 
public, such as items that solely deal with internal Army procedures 
and actions, e.g., annual reporting requirements to Headquarters, 
Department of the Army.

Authority for This Action

    Authorities for this rulemaking include the following:
     The Freedom of Information Act at 5 U.S.C. 552 which 
provides the public with a right to request access to federal agency 
records or information, except to the extent the records are protected 
from disclosure by any of nine exemptions or by one of three special 
law enforcement record exclusions.
     The Privacy Act of 1974 at 5 U.S.C. 552a, which 
establishes a code of fair information practices that governs the 
collection, maintenance, use, and dissemination of information about 
individuals that is maintained in systems of records by federal 
agencies.
     Confidentiality of records at 42 U.S.C. 290 which requires 
certain medical records shall be confidential and disclosed only for 
authorized purposes.
     Executive Order No. 12988, Civil Justice Reform (add a 
link to the E.O.) which establishes several requirements on Federal 
agencies involved in litigation or contemplating filing an action on 
behalf of the United States.

Costs and Benefits

    The proposed revisions benefit the Department of the Army agencies, 
Army support to the Department of Justice, and interaction with state 
courts in affirmative and defensive litigation information. With the 
updates to the CFR for statutory and other changes since the document 
was published in 1994, Army's support of federal litigation and 
response to requests to support state and private litigation will be 
improved.
    Although no formal study or collection of data are available, a 
review of the closed Touhy requests for FY 2016 shows that hundreds of 
hours were expended by Army personnel responding to these requests. 
Similar to costs in Freedom of Information Act processing, there are 
substantial costs for searching, reviewing, and producing Army records 
and personnel for depositions and trial.
    This rule will be included in DoD's retrospective plan, completed 
in August 2011, and will be reported in future

[[Page 90271]]

status updates of DoD's retrospective review in accordance with the 
requirements in Executive Order 13563. DoD's full plan can be accessed 
at: http://www.regulations.gov/#!docketDetail;D=DoD-2011-OS-0036.

B. Regulatory Flexibility Act

    The Department of the Army has determined that the Regulatory 
Flexibility Act does not apply because the proposed rule does not have 
a significant economic impact on a substantial number of small entities 
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612.

C. Unfunded Mandates Reform Act

    The Department of the Army has determined that the Unfunded 
Mandates Reform Act does not apply because the proposed rule does not 
include a mandate that may result in estimated costs to State, local or 
tribal governments in the aggregate, or the private sector, of $100 
million or more.

D. National Environmental Policy Act

    The Department of the Army has determined that the National 
Environmental Policy Act does not apply because the proposed rule does 
not have an adverse impact on the environment.

E. Paperwork Reduction Act

    This proposed rule does not impose any new recordkeeping, 
reporting, or other information collection requirements on the public. 
The proposed rule sets forth procedures by which litigants may serve 
summonses, complaints, subpoenas, and other legal process, demands, and 
requests upon the DA. The proposed rule imposes special procedural 
requirements for those who seek to serve third-party subpoenas upon the 
DA in accordance with United States ex rel. Touhy v. Ragen, 340 U.S. 
462 (1951). These requirements may increase the time and burden 
associated with obtaining records of the DA in response to such third-
party subpoenas.

F. Executive Order 12630 (Government Actions and Interference With 
Constitutionally Protected Property Rights)

    The Department of the Army has determined that Executive Order 
12630 does not apply because the proposed rule does not impair private 
property rights.

G. Executive Order 12866 (Regulatory Planning and Review) and Executive 
Order 13563 (Improving Regulation and Regulatory Review)

    The Department of the Army has determined that, although this rule 
is not ``economically significant'' because it does not have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, it is ``other significant'' for raising novel 
legal or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in these Executive Orders. For 
that reason, it has been reviewed by the Office of Management and 
Budget (OMB).

H. Executive Order 13045 (Protection of Children From Environmental 
Health Risk and Safety Risks)

    The Department of the Army has determined that according to the 
criteria defined in Executive Order 13045. This proposed rule does not 
apply since it does not implement or require actions impacting 
environmental health or safety risks to children.

I. Executive Order 13132 (Federalism)

    The Department of the Army has determined that according to the 
criteria defined in Executive Order 13132 this proposed rule does not 
apply because it will not have a substantial effect on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among various levels of 
government.

List of Subjects in 32 CFR Part 516

    Litigation, Service of process, Witnesses, Official information, 
Discovery requests, Expert testimony.


0
For reasons stated in the preamble, the Department of the Army proposes 
to revise 32 CFR part 516 to read as follows:

PART 516--RELEASE OF OFFICIAL INFORMATION AND APPEARANCE OF 
WITNESSES IN LITIGATION

Sec.
516.1 General.
516.2 Release authority.
516.3 Release determination.
516.4 Requestor responsibilities.
516.5 Classified, Privacy Act Protected, Sensitive or Privileged 
Information.
516.6 Releasing official information to the Department of Justice.
516.7 Complying with requests for official information, subpoenas, 
and witness testimony.
516.8 Testimony in private civil litigation.
516.9 Department of Justice witness requests in litigation involving 
the United States.
516.10 Expert or opinion testimony by DA personnel.
516.11 Witnesses before foreign tribunals.
516.12 Fees and expenses.
516.13 News media and other inquiries.

    Authority:  5 U.S.C. 552; 5 U.S.C. 552a; 42 U.S.C. 290; 
Executive Order No. 12988.


Sec.  516.1   General.

    (a) Responsibilities.--(1) Litigating Divisions. (i) Chief, 
Litigation Division, United States Army Legal Services Agency (USALSA), 
is responsible for the following:
    (A) Supervising litigation in which the Army has an interest, 
except as outlined in paragraphs (a)(1)(A)(ii)-(iv) of this section.
    (B) Acting for The Judge Advocate General (TJAG) and the Secretary 
of the Army on litigation issues, including the authority to settle or 
compromise cases.
    (C) Delegating responsibility for cases if appropriate.
    (D) Serving as primary contact with the Department of Justice (DOJ) 
on litigation.
    (E) Accepting service of process for the Department of the Army 
(DA) and for the Secretary of the Army in his or her official capacity. 
(See 32 CFR 257.5.)
    (F) Approval of the appointment of Special Assistant United States 
Attorneys (SAUSAs) and DOJ special trial attorneys to represent the 
Army and DOD in civil litigation.
    (ii) Chief, Contract and Fiscal Law Division, USALSA, is 
responsible for supervising Armed Services Board of Contract Appeals 
(ASBCA) and Government Accountability Office (GAO) litigation. The 
Chief Trial Attorney, attorneys assigned to the Contract and Fiscal Law 
Division, and attorneys designated by the Chief Trial Attorney, will 
represent DA before the ASBCA for contract appeals. They also represent 
DA before the GAO for bid protests in cases not falling under the 
purview of either the U.S. Army Corps of Engineers (USACE) or Army 
Materiel Command. They will maintain direct liaison with DOJ and 
represent DA in appeals from ASBCA decisions. The Chief Trial Attorney 
has designated USACE attorneys to act as trial attorneys in connection 
with USACE contract appeals.
    (iii) Chief, Environmental Law Division, USALSA, is responsible for 
the following:
    (A) Supervising defensive environmental civil litigation and 
administrative proceedings involving missions and functions of DA, its 
major and subordinate commands, and

[[Page 90272]]

installations currently or previously managed by DA in which the Army 
has an interest, except as otherwise specifically provided in this 
part.
    (B) Supervising affirmative cost recovery actions, brought pursuant 
to Federal or State environmental laws, in which the Army has an 
interest.
    (C) Acting for TJAG and the Secretary of the Army on the assertion 
and defense of Army water rights, and environmental litigation and 
affirmative cost recovery issues, including the authority to settle or 
compromise cases.
    (D) Delegating responsibility for cases as appropriate.
    (E) Serving as primary contact with DOJ on environmental litigation 
and cost recovery.
    (iv) Chief, Regulatory Law and Intellectual Property (RL & IP) 
Division, USALSA, is responsible for the following:
    (A) Supervising the attorneys assigned to the Regulatory Law and 
Intellectual Property Division (RL & IP) and other attorneys designated 
by the Chief, RL & IP, who represent DA consumer interests in 
regulatory matters before State and Federal administrative agencies and 
commissions, including but not limited to proceedings involving rates 
and conditions for the purchase of services for communications (except 
long-distance telephone), transportation, and utilities (gas, electric, 
water and sewer). Those attorneys will maintain direct liaison with DOJ 
for communications, transportation, and utilities litigation as 
authorized by the Chief, RL & IP.
    (B) Supervising attorneys assigned to the RL & IP Division, and 
other attorneys designated by the Chief RL & IP who represent DA in 
matters pertaining to patents, copyrights, and trademarks. Those 
attorneys will maintain direct liaison with DOJ and represent the DA in 
intellectual property issues as authorized by the Chief, RL & IP.
    (v) Chief, Procurement Fraud Division (PFD), is responsible for 
supervising all attorneys designated to represent the DA in all 
procurement fraud and corruption matters before the Army suspension and 
debarment authority and before any civil fraud recovery administrative 
body. Those attorneys will maintain liaison and coordinate remedies 
with DOJ and other agencies in matters of procurement fraud and 
corruption.
    (vi) Legal Representatives of the Chief of Engineers. The U.S. Army 
Corps of Engineers (USACE) Office of Chief Counsel, attorneys assigned 
thereto, and other attorneys designated by the Chief Counsel will 
maintain direct liaison with DOJ and represent DA in litigation and 
administrative proceedings arising from the navigation, civil works, 
Clean Water Act 404 permit authority, environmental response 
activities, real property functions of the (USACE).
    (b) Applicability. (1) This part implements 32 CFR part 97 as 
further implemented by DOD Directive 5405.2, ``Release of Official 
Information in Litigation and Testimony by DoD Personnel as Witnesses'' 
(available at http://www.dtic.mil/whs/directives/corres/pdf/540502p.pdf). It governs the release of official information and the 
appearance of present and former DA personnel as witnesses in response 
to requests for interviews, notices of depositions, subpoenas, and 
other requests or orders related to judicial or quasi-judicial 
proceedings (e.g., a proceeding conducted by an administrative or 
executive official that is similar to a trial, like a hearing.). Army's 
internal guidance for this part is available in Army Regulation 27-40 
Litigation, dated 19 September 1994 (available at http://www.apd.army.mil/Search/ePubsSearch/ePubsSearchForm.aspx?x=AR). The 
Army observes a policy of strict neutrality in all private litigation 
unless the United States has an interest. This part pertains to any 
request for witnesses, documents, or information for all types of 
litigation, including requests by private litigants, requests by State 
or U.S. attorneys, requests by foreign officials or tribunals. This 
part also pertains to subpoenas for records or testimony, notices of 
depositions, and interview requests all stemming from civil or criminal 
proceedings or any litigation in which the United States has an 
interest.
    (2) This part does not apply to releasing official information or 
testimony by Army personnel in the following situations:
    (i) Before courts-martial convened by military departments or in 
administrative proceedings conducted by or on behalf of a DOD 
component.
    (ii) In administrative proceedings for:
    (A) The Equal Employment Opportunity Commission.
    (B) The Merit Systems Protection Board.
    (C) The Federal Labor Relations Authority.
    (D) A negotiated grievance procedure under a collective bargaining 
agreement to which the government is a party.
    (iii) In response to requests by Federal Government counsel in 
litigation conducted on behalf of the United States.
    (iv) Pursuant to disclosure of information to Federal, State, and 
local prosecuting and law enforcement authorities, in conjunction with 
an investigation conducted by a DoD criminal investigative 
organization.
    (b) Policy. Official information generally should be made 
reasonably available for use in federal and state courts and by other 
governmental bodies unless the information is classified, privileged, 
or otherwise protected from public disclosure. Current or former DA 
personnel must receive approval from the local SJA, legal advisor, or 
Litigation Division prior to disclosing official information in 
response to subpoenas, court orders, or requests. The local SJA or 
legal advisor should seek to resolve all requests for official 
information at their level. In complex cases, responding offices should 
consult with the appropriate litigating division. If questions arise, 
refer the matter to the appropriate litigating division as described in 
Sec.  516.1(d). All other matters, including cases involving classified 
information will be referred to the General Litigation Branch, 
Litigation Division.
    (c) Definitions. (1) Official information. Official information 
includes all information of any kind, however stored, that is in the 
custody and control of the Department of the Army, relates to 
information in the custody and control of the Department, or was 
acquired by DA personnel as part of their official duties or because of 
their official status within the Department while such personnel were 
employed by or on behalf of the Department or on active duty with the 
US Army. Official Information that is the property of the Army but is 
in the possession, custody or control of another Federal, State, or 
local agency or a Government contractor is also included in this 
definition. Generally, official information includes, but is not 
limited to paper, photographic or electronic records obtained, 
generated, or maintained for the Army, to include the personal 
observations and testimony of any kind by Army personnel, about:
    (i) Classified or sensitive information of any kind;
    (ii) Privileged information of any kind;
    (iii) The acquisition, funding, construction, operation, 
maintenance, physical condition or readiness, as applicable, of DOD, 
Army, or other Federal government programs, systems, properties, 
facilities, equipment, data management systems or personnel;
    (iv) Unit records, training records, individual personnel or 
medical records, investigative reports of any kind, scientific or 
financial data, official Army publications, and records

[[Page 90273]]

generated during military operations; and
    (v) Army personnel, their family members, contractors, and other 
related third parties.
    (2) Litigation. Litigation includes all pretrial, trial, and post-
trial stages of all existing or reasonably anticipated judicial or 
administrative actions, hearings, investigations, or similar 
proceedings before civilian courts, commissions, boards, or other 
tribunals, foreign and domestic, and state legislative proceedings. 
This includes:
    (i) Responses to discovery requests, depositions, and other 
pretrial proceedings.
    (ii) Responses to formal or informal requests by attorneys or 
others in existing or reasonably anticipated litigation matters.
    (3) Private Litigation. (i) In which the Army has no interest. 
Litigation in which neither the United States, nor an employee in an 
official capacity, is a party and in which the United States has no 
identifiable direct or indirect legal, contractual, financial, 
administrative, mission-related or other interest. Examples of 
litigation likely to be considered private include personal bankruptcy; 
civil consumer, divorce and custody proceedings; or landlord-tenant or 
similar litigation of individual Army civilian or military personnel, 
past or present. State or local criminal litigation not involving 
prosecution of Army personnel, contractors, or manufacturers of Army 
equipment or property may also qualify. The SJA or legal advisor will 
determine whether a particular case qualifies as private litigation 
where the Army has no interest.
    (ii) In which the Army has an interest. In cases where the Army is 
not a named party, the Army may still have an interest. These may 
include: Cases where the Army may incur costs as a result of the 
litigation; cases where Army operations or policies are implicated; 
cases which could impact Army property or water rights; disclosure of 
information harmful to national security or otherwise protected from 
disclosure; litigation involving Army contractors or manufacturers of 
Army equipment and property; incidents arising from Department of 
Defense or Army activities; litigation involving the personal injury of 
Army personnel or family members, or the personal injury of third 
parties by Army personnel; the foreign or civilian criminal prosecution 
of Army personnel, family members, contractors, or manufacturers of 
Army equipment or property; or civil or family law litigation which may 
overlap or relate to the foreign or civilian criminal prosecution of 
Army personnel or family members. If an SJA or legal advisor cannot 
clearly determine whether Army interests are implicated in a particular 
case, consult with the appropriate litigating division.
    (4) DA Personnel. DA Personnel includes the following:
    (i) Present, former and retired Army military personnel, including 
the U.S. Army Reserve, regardless of current status.
    (ii) Present, former and retired civilian employees of the U.S. 
Army, regardless of current status.
    (iii) Soldiers of the Army National Guard of the United States 
(title 10 U.S.C.) and, when specified by statute or where a Federal 
interest is involved, Soldiers in the Army National Guard (title 32, 
U.S.C.). It also includes technicians under 32 U.S.C. 709.
    (iv) USMA cadets.
    (v) Nonappropriated fund employees.
    (vi) Foreign nationals who perform services for DA overseas.
    (vii) Other individuals hired by or for the Army, including 
individuals hired through contractual agreements by or on behalf of the 
Army.
    (5) Demand. Subpoena, order, or other demand of a court of 
competent jurisdiction, or other specific authority, to produce, 
disclose, or release official Army information (or other official 
federal agency information subject to release under this chapter) or 
which require that DA Personnel testify or appear as witnesses.


Sec.  516.2   Release authority.

    (a) Release Authorities for Official Information. The following 
personnel are the release authorities for official Army information in 
the following litigation situations (See figure 1):
    (1) United States is a party or has an interest. The appropriate 
litigating division is the release authority for all official, 
unclassified Army information in cases in which the United States is a 
party or has a direct interest; they also make all such release 
decisions for cases in which the information could be used in a claim 
or litigation against the United States. If uncertainty exists as to 
whether a given situation constitutes private litigation, forward the 
request to the appropriate litigating division (See Sec.  516.1(d)).
    (2) Non-classified information where the United States has no 
interest. SJAs and legal advisors are the release authorities for 
official, unclassified factual information held by their respective 
commands or organizations in cases of private litigation.
    (3) Classified information. Litigation Division is the release 
authority for official information or appearance of DA personnel as 
witnesses in litigation involving terrorism, espionage, nuclear 
weapons, intelligence sources and methods, or involving records 
otherwise privileged from release, including classified information. 
Refer any requests involving such information to the General Litigation 
Branch, Litigation Division.
    (4) Medical treatment records. Army Medical Center or Command Judge 
Advocates or supporting SJAs are the release authorities for official, 
unclassified factual information in private litigation which involves 
the release of medical and other records and information within the 
custody, control or knowledge of the Center or Command Judge Advocates' 
or supporting SJAs'permanent station hospital and its personnel. 
Medical records may only be released in compliance with the Health 
Insurance Portability and Accountability Act (HIPAA) regulations 
published at 45 CFR parts 160, 162, and 164. Upon court order or 
subpoena, if appropriate under Sec. Sec.  516.3-4 (Release 
Determination and Requestor Responsibilities), and if compliant under 
the HIPAA regulations, Center or Command Judge Advocates, SJAs and 
legal advisors may furnish to the attorney for the injured party or the 
tortfeasor's attorney or insurance company a copy of the narrative 
summary of medical care that relates to a claim initiated by the United 
States for recovery of costs for medical care or property claims, 
pursuant to the Federal Medical Care Recovery Act (42 U.S.C. 2651), the 
Federal Claims Collection Act (31 U.S.C. 3711), the Third Party 
Collection Program (10 U.S.C. 1095), or Executive Order No. 12988, 
Civil Justice Reform. If additional medical records are requested by 
subpoena or court order, only those that are relevant and necessary to 
the litigation or pending action will be furnished. If furnishing 
copies of medical records would prejudice the cause of action, the 
matter will be reported to Litigation Division.
    (5) Substance abuse treatment records. Subpoenas for alcohol abuse 
or drug abuse treatment records must be processed under 42 U.S.C. 
290dd-3 and 290ee-3, and Public Health Service regulations published at 
42 CFR 2.1-2.67.
    (6) Armed Services Board of Contract Appeals cases. Contracting 
officers, in consultation with the appropriate servicing SJA, are 
authorized to release official information to be used in litigation 
before the Armed Services Board of Contract Appeals, per the Federal 
Acquisition Regulation (FAR), subpart 5.4., and applicable DOD 
directives and Army instructions.

[[Page 90274]]

Responses to such requests must be coordinated with the assigned trial 
attorney at the USALSA Contract and Fiscal Law Division.
    (b) Approval Authorities for Witness Testimony. The following 
personnel are the approval authorities for witness testimony by former, 
retired and current Army personnel in the following litigation 
situations:
    (1) Cases where the United States has an interest. The appropriate 
litigating division, as identified in Sec.  516.1, is the approval 
authority for personnel who may appear and testify as witnesses in 
contemplated or pending litigation where the United States is a party 
or has an interest.
    (2) Classified, sensitive, or privileged information. Litigation 
Division is the approval authority for the appearance of DA personnel 
as witnesses in litigation involving terrorism, espionage, nuclear 
weapons, intelligence sources and methods, or involving records 
otherwise privileged from release, including classified information. 
(See Sec.  516.1(b)). Refer any requests involving such information to 
the General Litigation Branch, Litigation Division.
    (3) Non-classified Information where the United States has no 
interest. SJAs, Chief Counsel, or their equivalent, are the approval 
authorities for individuals within their organizations or commands who 
may appear for witness testimony, depositions, or interviews or make 
declarations on factual matters within their personal knowledge when it 
involves private litigation where the United States has no interest.
    (4) Medical Information. Commanders of Medical Commands, in 
consultation with their legal advisors, are the approval authorities 
for medical providers and other hospital personnel assigned to their 
command. This includes witness testimony, depositions, interviews or 
declarations on factual matters within their personal knowledge when it 
involves private litigation where the United States has no interest.
    (5) Expert testimony. Litigation Division is the approval authority 
for expert testimony. (See Sec.  516.10).
    (6) Former and Retired DA Personnel. The appropriate litigating 
division is the approval authority for witness testimony relating to 
official information. (See Sec.  516.2).
    (c) Referral to the Appropriate Litigating Division. When the local 
Release Authority does not have the authority to resolve the matter, it 
will be referred to the appropriate litigating division. (See Sec.  
516.1a.).
    (1) Nature of the Request. (i) Refer affirmative litigation 
initiated by the United States for recovery of costs for medical care 
or property claims (e.g., medical care recovery or Army property damage 
or loss cases) to the Tort Litigation Branch, Litigation Division.
    (ii) Refer matters concerning patents, copyrights, trade secrets, 
or trademarks to the Regulatory Law and Intellectual Property Division.
    (iii) Refer taxation matters to the Contract and Fiscal Law 
Division.
    (iv) Refer matters concerning communication, transportation, or 
utility service proceedings to the Regulatory Law and Intellectual 
Property Division.
    (v) Refer environmental matters, to include water rights and 
affirmative environmental cost recovery to the Environmental Law 
Division.
    (vi) Refer matters arising from the navigation, civil works, Clean 
Water Act 404 permit authority, environmental response activities, and 
real property functions of the U.S. Army Corps of Engineers (USACE) 
Office of Chief Counsel.
    (vii) Refer all bid protests, and contract appeals cases before the 
ASBCA and GAO to the Contract and Fiscal Law Division.
    (viii) Refer procurement fraud matters, including qui tam cases, to 
the Procurement Fraud Division, OTJAG.
    (ix) Refer all other matters to the General Litigation Branch, 
Litigation Division.
    (2) Information to Submit with Referrals. Provide the following 
data when referring matters pursuant to Sec.  516.2(c):
    (i) Copy of the request for official information and all available 
relevant pleadings (e.g., complaint, motions, court rulings).
    (ii) Parties (named or prospective) to the proceeding, their 
attorneys, and case number.
    (iii) Party making the request (if a subpoena, indicate moving 
party) and his or her attorney.
    (iv) Name of tribunal in which the proceeding is pending.
    (v) Nature of the proceeding.
    (vi) Date of receipt of request or date and place of service of 
subpoena.
    (vii) Name, grade, position, and organization of person receiving 
request or served with subpoena.
    (viii) Date, time, and place designated in request or subpoena for 
production of information or appearance of witness.
    (xi) Nature of information sought or document requested, and place 
where document is maintained.
    (x) A copy of each document requested. Contact the appropriate 
litigating division if this would be burdensome and unnecessary to a 
decision whether to release, redact, or withhold a particular document.
    (xi) Name of requested witness, expected testimony, requested 
appearance time and date, and whether witness is reasonably available.
    (xii) Analysis of the request with recommendations.

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Sec.  516.3   Release determination.

    (a) Release authorities must ensure requestors state in writing the 
nature and relevance of the official information they want and include 
the documentation required by Sec.  516.4. The appropriate release 
authority should evaluate the request in light of 32 CFR part 97 and 
United States, ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) and other 
relevant case law. Release authorities must consider the following 
factors when determining whether to approve or deny a request for 
official information:
    (1) Whether the request is unduly burdensome, inappropriate under 
the applicable court rules or otherwise irrelevant. Considerations 
include the size and scope of the request; amount of preparation and 
transportation time for the witness; mission impact of requiring the 
witness to be pulled away from current duties to participate; mission 
impact of requiring responding office personnel to be pulled away from 
their current assignments to respond to document search, review and 
production requests; and the potential cumulative burden upon the 
agency in granting similar requests.
    (2) Whether the disclosure is inappropriate under the rules of 
procedure governing the matter in which the request arose.
    (3) Whether the disclosure violates a statute, executive order, 
regulation, or directive.
    (4) Whether the disclosure (including release in camera) is 
inappropriate under the relevant substantive law concerning privilege.
    (5) Whether the disclosure reveals information properly classified 
pursuant to the DOD Information Security Program under AR 380-5, 
unclassified technical data withheld from public release pursuant to 32 
CFR 250 and DOD Directive 5230.25 or other sensitive or privileged 
information exempt from disclosure.
    (6) Whether the disclosure would interfere with ongoing enforcement 
proceedings, compromise constitutional rights, reveal the identity of 
an intelligence source or confidential informant, disclose trade 
secrets or confidential, commercial, or financial information, or would 
otherwise be inappropriate under the circumstances.
    (7) Whether disclosure violates any person's expectation of 
confidentiality or privacy.
    (8) Whether any other factor or consideration relevant to the 
circumstances warrants approving or denying the request.


Sec.  516.4   Requestor responsibilities.

    (a) Individuals seeking official information must submit, at least 
14 days before the desired date of production, a detailed written 
request setting forth the nature and relevance to the litigation or 
proceeding of the official information sought. Requests for official 
information involving an employee's appearance and/or production of 
documents must comply with 32 CFR part 97 and this part. At a minimum, 
requests must include:
    (1) Copy of the complaint or criminal charges and relevant 
pleadings;
    (2) Date of the requested appearance or production;
    (3) Party for whom the request is made;
    (4) Reason why official information sought is relevant and 
necessary to requestor and litigation;
    (5) For witness requests, name, grade, position, and organization 
of the witness if known, and substance of the expected testimony. 
Requestors should not contact potential witnesses without first 
coordinating with the witness' SJA or legal advisor, or the appropriate 
litigating division.
    (b) Requests from DOJ for DA personnel as witnesses need not follow 
the requirements above. See Sec.  516.6 for the witness request 
procedures for DOJ.


Sec.  516.5   Classified, Privacy Act Protected, Sensitive or 
Privileged Information.

    (a) Classified information. Only Litigation Division may authorize 
the release of information or appearance of DA personnel as witnesses 
in litigation involving classified matters. Refer any requests 
involving such information to the General Litigation Branch, Litigation 
Division.
    (b) Information Protected by the Privacy Act.
    (1) Privacy Act (5 U.S.C. 552a) records include any item, 
collection, or grouping of information about an individual that is 
maintained by an agency, including, but not limited to, his education, 
financial transactions, medical history, and criminal or employment 
history and that contains his name, or the identifying number, symbol, 
or other identifying particular assigned to the individual, such as a 
finger or voice print or a photograph.
    (2) A demand (see definition in Sec.  516.1) signed by an attorney 
or clerk of court for records protected by the Privacy Act, 5 U.S.C. 
552a, does not justify the release of the protected records. This 
includes a subpoena issued on behalf of a Federal or State Grand Jury. 
The release authority should explain to the requestor that the Privacy 
Act precludes disclosure of records in a system of records without the 
written consent of the subject of the records or ``pursuant to the 
order of a court of competent jurisdiction'' (See fig 7-2 and fig 7-3 
Sample Touhy Compliance response).
    (3) In connection with discovery in federal or state litigation, 
Privacy Act records will only be released with consent of the 
individual or under a court order specifically signed by a judge or 
magistrate of a court of competent jurisdiction. (See 5 U.S.C. 
552a(b)(11); Doe v. DiGenova, 779 F.2d 74 (DC Cir 1985); Bosaw v. NTEU, 
887 F. Supp. 1199 (S.D. Ind. 1995); and Boron Oil Co. v. Downie, 873 F. 
2d 67 (4th Cir. 1989).) More specifically, unclassified Privacy Act 
records otherwise protected from release, may be released under the 
following conditions:
    (i) Release by Court Order. The court order must state that the 
court finds that the law authorizes release of the records and the 
records should be released. If the order or subpoena does not contain 
these findings the release authority may release the records to a clerk 
of the court empowered by local statute or practice to receive the 
records under seal subject to the release authority's request that the 
clerk of court withhold the records from the parties until the court 
issues an order determining that the records should be released.
    (ii) Release to the Requestor. Privacy Act records may be released 
to the requestor if a valid Privacy Act consent waiver from the 
individual to whom the record(s) pertain is submitted with the request. 
Otherwise, Privacy Act records should only be released pursuant to 
court order as set forth in (i) above.
    (c) Inspector General (IG) records or testimony. IG records, and 
information obtained through performance of IG duties, are official 
information under the exclusive control of the Secretary of the Army. 
(see AR 20-1, Chapter 3.) IG records frequently contain sensitive 
official information that may be classified or obtained under 
guarantees of confidentiality. Army personnel will not release IG 
records or disclose information obtained through performance of IG 
duties without the approval of the Secretary of the Army, The Inspector 
General (TIG), TIG Legal Advisor, or the Chief, Litigation Division.
    (d) Safety records, information, and witnesses. Safety records and 
information produced by commands, installation safety offices, and the 
U.S. Army Combat Readiness Command and Safety Center (USACRC) (and 
other DOD Service Components) may contain ``privileged safety 
information.'' See

[[Page 90277]]

DOD Instruction 6055.07 and AR 385-10.
    (1) Litigation Division and the USACRC Command Judge Advocate will 
consult with the appropriate United States Attorney's Office regarding 
assertion of appropriate privileges. To assess the appropriate 
privilege, safety reports and records will be provided to Litigation 
Division in complete unredacted form along with a separate copy 
reflecting identification of all privileged portions.
    (2) When requested, contact information for safety personnel 
witnesses and technical experts will be provided to Litigation 
Division. As needed, Litigation Division will provide safety records, 
information, and witness contact information to the U.S. Attorney's 
Office for evaluation.
    (3) Providing safety records, information, and access to safety 
personnel to Litigation Division or the U.S. Attorney's Office is not 
considered a ``release,'' under DOD safety regulations.
    (4) All parties handling privileged safety information are 
obligated to observe confidentiality, protected safety-use 
requirements, and all other privileges against public disclosure. 
Privileged safety reports, records, information, or testimony will not 
be used in litigation without appropriate disclosure safeguards, such 
as a protective order, agreement, or order to seal.
    (e) Technical Data. Commands should refer requests for unclassified 
technical data with military or space application which should be 
withheld from public release pursuant to 32 CFR 250 and DOD Directive 
5230.25, Withholding of Unclassified Technical Data from Public 
Disclosure, November 6, 1984 (including Change 1, August 18, 1995) to 
the General Litigation Branch, Litigation Division.
    (f) Other privileged information. Unless otherwise specified, all 
questions and issues regarding privileged information will be referred 
for consultation to General Litigation Branch, Litigation Division.
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Sec.  516.6  Releasing official information to the Department of 
Justice.

    In routine cases where the Department of the Army is neither a 
party nor has an interest in the litigation, SJAs may release 
unclassified and unprivileged official information to DOJ or the U.S. 
Attorney's Office on request. In connection with any such release, DOJ 
or the U.S. Attorney's Office must be provided sufficient information 
to determine whether the requested information is classified, 
privileged or protected by the Privacy Act or other applicable 
confidentiality laws, to ensure for its proper handling. DOJ or U.S. 
Attorney requests for classified information will be coordinated 
through Litigation Division prior to action. Prior to pursuing 
declassification of official information, Litigation Division will 
coordinate with the requesting DOJ attorney to determine whether 
declassification of the information is appropriate or advisable under 
the circumstances.


Sec.  516.7  Complying with requests or demands for official 
information, subpoenas, and witness testimony.

    (a) Request or demand for official information and witness 
testimony will be resolved by the SJA or legal advisor pursuant to this 
subpart. The appropriate litigating division will be

[[Page 90282]]

consulted on issues that cannot be resolved by the SJA or legal advisor 
or when multiple release authorities are involved.
    (b) Local SJAs and command legal advisors will assist DA personnel 
within their commands and in their geographic area regarding compliance 
with subpoenas for official information and witness testimony. Such 
assistance should include providing advice and attending interviews, 
depositions, and trial testimony.
    (c) Where an immediate response is required. A demand, including a 
subpoena or court order, should never be ignored. If a response to a 
subpoena or court order is required before a release determination can 
be made, the SJA or legal advisor will do the following:
    (1) Attempt to resolve the issue through informal efforts. Inform 
the requestor that the demand is under review and, if applicable, that 
the requestor must provide additional information in accordance with 
this part in order for a release determination to be made. Seek 
additional time to respond to the demand and to have the requestor 
voluntarily withdraw the subpoena or stay the court order.
    (2) If informal efforts to resolve the issue are unsuccessful or if 
time does not permit attempting informal efforts, contact the 
appropriate litigating division. When the appropriate litigating 
division is not available, contact the appropriate USAO directly. 
Request that the USAO seek to stay the subpoena or court order pending 
the requestor's compliance with this part.
    (3) If efforts to stay the subpoena or court order are 
unsuccessful, seek to quash the subpoena or court order through 
coordination with the appropriate litigating division or USAO.
    (4) If the USAO is challenging the subpoena or court order, the SJA 
or legal advisor will direct the affected personnel to respectfully 
decline to comply with the subpoena or court order pending resolution 
of the challenge.
    (d) Subpoenas seeking protected or privileged information. When 
privilege, statute, or regulation prohibits releasing the subpoenaed 
information, the SJA or legal advisor should attempt to resolve the 
matter with the requestor, or, after consultation with the appropriate 
litigating division and with the assistance of the local U.S. 
Attorney's Office, appear through counsel and explain the matter to the 
court. To resolve the matter, SJAs or legal advisors should:
    (1) Communicate with the counsel requesting the subpoena. (See 
sample letter at fig 7-3).
    (2) Explain the restrictions on release.
    (3) Provide any releasable information.
    (4) Suggest withdrawing the subpoena.
    (e) Coordination with the US Attorney concerning subpoenas for 
protected or privileged information. If informal efforts to resolve the 
situation are unsuccessful, the appropriate litigating division may ask 
the local U.S. Attorney's Office to file a motion to quash or a motion 
for a protective order or other appropriate legal recourse. The records 
privileged or otherwise protected from release should be retained by 
the custodian pending the court's ruling.
    (f) Release of Information through Witness Testimony. If the 
approval authority determines that the official information may be 
released, DA personnel may be interviewed, deposed, or appear as a 
witness in court provided such interview or appearance is consistent 
with the requirements of this subpart. An Army attorney should 
ordinarily be present, as the legal representative of the Army, during 
any interview or testimony. If a question seeks information not 
previously authorized for release, the legal representative will advise 
the witness not to answer. If necessary to avoid release of the 
information, the legal representative will advise the witness to 
terminate the interview or deposition, or by the Assistant U.S. 
Attorney in the case of testimony in court, advise the judge that DOD 
directives and Army regulations preclude the witness from answering 
without approval from the appropriate litigating division. Every effort 
should be made, however, to substitute releasable information and to 
continue the interview or testimony.
    (1) If the absence of a witness from duty will interfere seriously 
with the accomplishment of a military mission, the SJA or legal advisor 
will advise the requesting party and attempt to make alternative 
arrangements. If these efforts fail, the SJA or legal advisor will 
consult on the matter with appropriate litigating division.
    (2) When requested by the U.S. Attorney's Office, the SJA or legal 
advisor will ensure that no witnesses involved in litigation are 
reassigned from the judicial district without first advising the U.S. 
Attorney's Office. If this is not feasible, or if a satisfactory 
arrangement cannot be reached with the U.S. Attorney's Office, the SJA 
or legal advisor should notify the Litigation Division.
    (g) Release of Records. If the Release Authority, after considering 
the factors set forth in Sec.  516.3, determines that all or part of 
requested official records are releasable, copies of the records should 
be furnished to the requestor. In absence of a protective order issued 
by a court of competent jurisdiction, records protected by the Privacy 
Act should only be released to the court issuing the applicable 
subpoena or order, or pursuant to a signed Privacy Act Waiver from the 
individual to whom the records pertain. (See Sec.  516.5(b))
    (h) Authenticating Records. Records custodians should authenticate 
official Army documents for civil litigation through written 
certification, rather than personally appearing and testifying. DA 
personnel will submit authenticated copies rather than originals of 
documents or records for use in legal proceedings, unless directed 
otherwise by the appropriate litigating division (See 28 U.S.C. 1733.) 
The DA Form 4, Department of the Army Certification for Authentication 
of Records is used to authenticate Army records or documents. (See 
Figure 5). Documents attached to a properly prepared and sealed DA Form 
4 are self-authenticating. (See Fed. R. Evid. 902). A DA Form 4 need 
not be prepared until the trial attorney presenting the Government's 
case identifies documents maintained at the installation level that he 
or she will need at trial. Once documents are identified, the custodian 
of the documents will execute his or her portion of the DA Form 4. The 
custodian certifies that the documents attached to the DA Form 4 are 
true copies of official documents. Documents attached to each form 
should be identified generally; each document need not be mentioned 
specifically. Only the upper portion of the form should be executed at 
the local level. Upon receipt of the DA Form 4 with documents attached 
thereto, HQDA will affix a ribbon and seal and deliver it to The Office 
of The Administrative Assistant to The Secretary of the Army or the 
Chief, Litigation Division. Either The Office of The Administrative 
Assistant to The Secretary of the Army or the Chief, Litigation 
Division will place the official Army seal on the packet. Use the 
simplest authentication procedure permissible, including any suitable 
alternative suggested by the court.
    (i) SJAs or legal advisors should promptly report any subpoenas 
from foreign courts requiring records, files, or documents to 
Litigation Division, and comply with the guidance in Sec.  516.7.
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Sec.  516.8  Testimony in private civil litigation.

    (a) Capacity. Funding and duty status are determined by the 
capacity in which the personnel testifies and whether the individual is 
a Soldier or a civilian employee.
    (1) Official capacity. DA personnel testify in their official 
capacity when:
    (i) They testify regarding their official duties or produce 
official records on behalf of the U.S.; or
    (ii) They testify on matters that relate to their official duties 
or produce official records on behalf of a party other than the U.S.
    (iii) They produce official records on behalf of a party other than 
the government.
    (b) Unofficial capacity. DA personnel testify in an unofficial 
capacity when they testify on behalf of the U.S. or another party on a 
matter unrelated to their official duties.
    (c) Funding Availability. 28 U.S.C. 1821, the Joint Ethics 
Regulation (JER), the Joint Travel Regulations (JTR), 28 CFR part 21, 
and Army regulations govern travel allowances for DA personnel 
appearing as witnesses in litigation. The general guidelines for 
funding witness travel are:
    (1) DA personnel are entitled to government funded travel expenses 
when testifying in an official capacity on behalf of the U.S.
    (2) DA personnel are entitled to government funded travel expenses 
when testifying in an unofficial capacity on behalf of the U.S.
    (3) DA uniformed personnel are entitled to government funded travel 
expenses when testifying in an official capacity for non-federal 
government agencies when:
    (i) The case is directly related to an agency or agency employee, 
and
    (ii) The case is one in which the agency has a particularly strong, 
compelling and genuine interest.
    (4) DA personnel are not entitled to government funded travel 
expenses when testifying in an official or unofficial capacity on 
behalf of a party other than the U.S.
    (5) See the JTR for exceptions to these general guidelines and for 
current guidance regarding funding responsibilities for witness travel.


Sec.  516.9  Department of Justice witness request in litigation 
involving the United States.

    (a) Department of Justice request for DA personnel as witnesses 
must be coordinated through the General Litigation Branch, Litigation 
Division. DA personnel receiving a subpoena or witness request from DOJ 
should contact the General Litigation Branch for assistance.
    (b) Cases in which the Army is a party to the litigation. When DOJ 
requests current DA personnel to appear as witnesses and in cases 
involving an activity connected to their employment, the travel 
expenses are payable by the employing command or activity. (See 28 CFR 
21.2).
    (1) DOJ initiates a witness request by sending a subpoena and a 
Request for Personnel to Testify as Government Witness form to the 
General Litigation Branch. The notice should include the witness' name, 
social security number, residence or duty station address, phone 
number, email address or fax number, the location, hour and date of 
appearance, and number of days needed. DOJ should also include the 
purpose of the testimony.
    (2) The General Litigation Branch will notify the witness and the 
SJA or legal advisor at the employing command or activity and provide 
them with travel instructions. If the case does not involve the 
employee's command or activity, the command or activity represented in 
the litigation will fund the travel expenses, issue a travel 
authorization/order for the required travel, and provide the necessary 
line of accounting. (28 CFR 21.2(d)(1) (JTR C4975-C4H-2)).
    (c) Cases in which the Army is not a party to the litigation. When 
DOJ requests current DA personnel to appear as a witness on behalf of 
the U.S. in an unofficial capacity, the employee's travel expenses are 
payable by DOJ. The General Litigation Branch will coordinate with the 
witness and the witness' command or activity to provide travel 
instructions and DOJ's line of accounting.
    (1) DOJ initiates a witness request by sending a subpoena and a 
Request for Personnel to Testify as Government Witness form to the 
General Litigation Branch. The notice should include the witnesses' 
name, social security number, residence or duty station address, phone 
number, email address or fax number, the location, hour and date of 
appearance, and number of days needed. The requestor should also 
include the purpose of the testimony.
    (2) The General Litigation Branch will notify the witness and the 
SJA or legal advisor at the employing command or activity and provide 
them with travel instructions and a DOJ line of accounting. The 
witnesses' command prepares travel orders. Upon completion of the 
travel the witness will seek reimbursement from DOJ.


Sec.  516.10  Expert or opinion testimony by DA personnel.

    (a) General rule. Former and current DA personnel will not provide, 
with or without compensation, opinion or expert testimony either in 
private litigation or in litigation in which the United States has an 
interest for a party other than the United States. (See fig 7-6, Sample 
Expert Witness Denial Letter.) An SJA or legal advisor must coordinate 
all requests for expert testimony with the appropriate litigating 
division. The Chief, Litigation Division is the approval authority for 
all expert testimony requests.
    (b) Exception to the general prohibition. If a requestor can show 
exceptional need or unique circumstances, and the anticipated testimony 
will not be adverse to the interests of the United States, the Chief, 
Litigation Division, or designee, may grant special written 
authorization for current or former DA personnel to testify as expert 
or opinion witnesses at no expense to the United States. In no event 
may current or former DA personnel furnish expert or opinion testimony 
for a party whose interests are adverse to the interests of the United 
States in a case in which the United States has an interest.
    (c) AMEDD personnel. Members of the Army medical department or 
other qualified specialists may testify in private litigation (see fig 
7-7, Sample of Doctor Approval Letter) under the following conditions:
    (1) The litigation involves patients they have treated, 
investigations they have made, laboratory tests they have conducted, or 
other actions they have taken in the regular course of their duties; 
and
    (2) Written authorization is obtained under Sec.  516.1(b). AMEDD 
personnel must limit their testimony to factual matters such as: Their 
observations of the patient or other operative facts; the treatment 
prescribed or corrective action taken; course of recovery or steps 
required for repair of damage suffered; and, contemplated future 
treatment; and
    (3) Their testimony may not extend to expert or opinion testimony, 
to hypothetical questions, or to a prognosis not formed at the time of 
examination or treatment.
    (d) Court-ordered expert or opinion testimony. If a court or other 
appropriate authority orders expert or opinion testimony, the witness 
will notify the appropriate litigating division immediately. If the 
appropriate litigating division determines it will not challenge the 
subpoena or order, the witness will comply with the subpoena or order. 
The appropriate litigating

[[Page 90287]]

division, through the local United States Attorney's Office, will 
immediately communicate with the court on the matter (See United States 
ex. rel. Touhy v. Ragen, 340 U.S. 462 (1951)).
    (e) Expert witness fees. Provisions of the Joint Ethics Regulation 
and Federal law may limit the ability of DA personnel to retain expert 
or opinion witness fees. As a general rule, all such fees tendered to 
DA personnel, to the extent they exceed actual witness travel, meals, 
and lodging expenses, will be remitted to the Treasurer of the United 
States.
    (f) Requests from DOJ. Requests for present or former DA personnel 
as expert or opinion witnesses from DOJ or other attorneys representing 
the United States will be referred to Litigation Division unless the 
request involves a matter that has been delegated by the Litigation 
Division to an SJA or legal advisor. Current and former DA personnel 
may not furnish expert or opinion testimony for a party whose interests 
are adverse to the interests of the United States in a case in which 
the United States has an interest.
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Sec.  516.11  Witnesses before foreign tribunals.

    (a) Referral to the SJA. Requests or subpoenas from a foreign 
government or tribunal for present DA personnel stationed or employed 
within that country to be interviewed or to appear as witnesses will be 
forwarded to the SJA of the command exercising general court-martial 
jurisdiction over the unit to which the individual is assigned, 
attached, or employed. The SJA will determine the following:
    (1) Whether a consideration listed in Sec. Sec.  516.3 (a)(1)-(7) 
above applies.
    (2) Whether the information requested is releasable under the 
principles established in this subpart.
    (3) Whether the approval of the American Embassy should be obtained 
because the person is attached to the Embassy staff or a question of 
diplomatic immunity may be involved.
    (4) Whether coordination with OTJAG International Law office is 
necessary to respond to the request.
    (b) United States has an interest in the litigation. If the SJA 
determines that the United States has an interest in the litigation, 
the commander may authorize the interview or order the individual's 
attendance in a temporary duty status. The United States will be deemed 
to have an interest in the litigation if it is bound by treaty or other 
international agreement to ensure the attendance of such personnel.
    (c) United States has no interest in the litigation. If the SJA 
determines that the United States does not have an interest in the 
litigation, the commander may authorize the interview or the appearance 
of the witness under the principles established in Sec.  516.8.
    (d) Witnesses located outside the requestor's country. If the 
requested witness is stationed in a country other than the requestor's, 
the matter will be referred to the General Litigation Branch, 
Litigation Division.


Sec.  516.12  Fees and expenses.

    (a) Fees and charges. DA personnel who respond to requests for 
official information may collect fees from the requestor for the direct 
costs of the search, duplication, and review of responsive information 
pursuant to the authority granted in 31 U.S.C. 9701 and according to 
the fee schedule and processing guidance outlined in DOD Instruction 
7000.14, DOD Financial Management Policy and Procedures, Volume 11, 
Chapter 4 of DOD 7000.14-R, Financial Management Regulation, OMB 
Circular A-25 ``User Charges'', and 32 CFR 204 ``User Fees.''
    (b) Fee estimate. When a requestor is assessed fees for processing 
a request, the responding office must provide an estimate of assessable 
fees if requested.
    (c) Requestor. Requestors should indicate a willingness to pay fees 
associated with the processing of their request before the responding 
office begins processing the request for official information. No work 
on a request for official information should begin if: A requestor is 
unwilling to pay fees associated with a request; the requestor is past 
due in the payment of fees from a previous request for official 
information; or the requestor disagrees with the fee estimate. If fees 
are assessed, responding offices should receive payment before 
releasing the documents.
    (d) Computation of fees. The Schedule of Fees and Rates in 32 CFR 
204.9 will be used to compute the direct costs of the search, review, 
and duplication associated with processing a given request for official 
information. Fees should reflect direct costs (i.e., expenditures 
actually incurred) for search, review, and duplication of responsive 
documents. DA Personnel will ensure that no fee is assessed for the 
benefits listed in 32 CFR 204.8 or where otherwise prohibited.
    (e) Search. The term ``search'' includes all time spent looking, 
both manually and electronically, for material that is responsive to a 
request. Search also includes a page-by-page or line-by-line 
identification (if necessary) of material in the record to determine if 
it, or portions thereof are responsive to the request. Responding 
offices should ensure that searches are done in the most efficient and 
least expensive manner so as to minimize costs for both the responding 
office and the requestor.
    (f) Review. The term ``review'' refers to the process of examining 
documents located in response to a request for official information to 
determine whether release is appropriate under this subpart. It also 
includes processing the documents for disclosure, such as redaction 
prior to release. Review does not include the time spent resolving 
general legal or policy issues regarding the release determination.
    (g) Duplication. The term ``duplication'' refers to the process of 
making a copy of a document in response to a request for official 
information. For duplication of electronic information for delivery in 
an electronic format, the actual cost, including the operator's time, 
will be charged, but not a ``per page'' charge unless hardcopy 
documents were duplicated and handled in order to reduce them to an 
electronic format for delivery.
    (h) Release of records of other agencies. An individual requesting 
records originating in agencies outside DA (e.g., FBI reports, local 
police reports, civilian hospital records) that are also included in 
Army records should be advised to direct his or her inquiry to the 
originating agency. Nevertheless, referring requesters to other 
agencies does not absolve DA personnel of the requirements to respond 
to court orders or subpoenas.


Sec.  516.13  News media and other inquiries.

    News media inquiries regarding litigation or potential litigation 
will be referred to the appropriate public affairs office. DA personnel 
will not comment on any matter currently or potentially in litigation 
without proper clearance. Local public affairs officers will refer 
press inquiries to HQDA (SAPA-OSR), WASHINGTON, DC 20310-1500, with 
appropriate recommendations for review and approval by the Office of 
the Chief of Public Affairs. All releases of information regarding 
actual or potential litigation will be coordinated with Litigation 
Division prior to release. Normally, DOJ is responsible for responding 
to media inquiries regarding cases in federal litigation.

    For the Judge Advocate General.
Francis P. King,
Colonel, Judge Advocate, Executive Officer.
[FR Doc. 2016-29835 Filed 12-13-16; 8:45 am]
 BILLING CODE 5001-03-P