Appendix C to Part 516 - Department of Defense Directive 5405.2, Release of Official Information in Litigation and Testimony by DoD Personnel as Witnesses
32:3.1.1.1.4.12.11.1.3 : Appendix C
Appendix C to Part 516 - Department of Defense Directive 5405.2,
Release of Official Information in Litigation and Testimony by DoD
Personnel as Witnesses Department of Defense Directive July 23,
1985, Number 5405.2, GC, DOD Subject: Release of Official
Information in Litigation and Testimony by DoD Personnel as
Witnesses References: (a) Title 5, United States Code, Sections
301, 552, and 552a (b) Title 10, United States Code, Section 133
(c) DoD Directive 5220.6, “Industrial Personnel Security Clearance
Program,” December 20, 1976 (d) DoD Directive 5200.1-R,
“Information Security Program Regulation,” August 1982, authorized
by DoD Directive 5200.1, June 7, 1982 (e) DoD Directive 5230.25,
“Withholding of Unclassified Technical Data from Public
Disclosure,” November 6, 1984 (f) DoD Instruction 7230.7, “User
Charges,” January 29, 1985 (g) DoD Directive 5400.7-R, “DoD Freedom
of Information Act Program,” December 1980, authorized by DoD
Directive 5400.7, March 24, 1980 A. Purpose
Under Section 301 reference (a) and reference (b), this
Directive establishes policy, assigns responsibilities, and
prescribes procedures for the release of official DoD information
in litigation and for testimony by DoD personnel as witnesses
during litigation.
B. Applicability and Scope
1. This Directive applies to the Office of the Secretary of
Defense (OSD), the Military Departments, the Organization of the
Joint Chiefs of Staff (OJCS), the Unified and Specified Commands,
and the Defense Agencies (hereafter referred to as “DoD
Components”), and to all personnel of such DoD Components.
2. This Directive does not apply to the release of official
information or testimony by DoD personnel in the following
situations:
a. Before courts-martial convened by the authority of the
Military Departments or in administrative proceedings conducted by
or on behalf of a DoD Component;
b. Pursuant to administrative proceedings conducted by or on
behalf of the Equal Employment Opportunity Commission (EEOC) or the
Merit Systems Protection Board (MSPB), or pursuant to a negotiated
grievance procedure under a collective bargaining agreement to
which the Government is a party;
c. In response to requests by Federal Government counsel in
litigation conducted on behalf of the United States;
d. As part of the assistance required in accordance with the
Defense Industrial Personnel Security Clearance Program under DoD
Directive 5220.6 (reference (c)); or
e. 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.
3. This Directive does not supersede or modify existing laws or
DoD programs governing the testimony of DoD personnel or the
release of official DoD information during grand jury proceedings,
the release of official information not involved in litigation, or
the release of official information pursuant to the Freedom of
Information Act, 5 U.S.C. Section 552 (reference (a)) or the
Privacy Act, 5 U.S.C. Section 552a (reference (a)), nor does this
Directive preclude treating any written request for agency records
that is not in the nature of legal process as a request under the
Freedom of Information or Privacy Acts.
4. This Directive is not intended to infringe upon or displace
the responsibilities committed to the Department of Justice in
conducting litigation on behalf of the United States in appropriate
cases.
5. This Directive does not preclude official comment on matters
in litigation in appropriate cases.
6. This Directive is intended only to provide guidance for the
internal operation of the Department of Defense and is not intended
to, does not, and may not be relied upon to create any right or
benefit, substantive or procedural, enforceable at law against the
United States or the Department of Defense.
C. Definitions
1. Demand. Subpoena, order, or other demand of a court of
competent jurisdiction, or other specific authority for the
production, disclosure, or release of official DoD information or
for the appearance and testimony of DoD personnel as witnesses.
2. DoD Personnel. Present and former U.S. military personnel;
Service Academy cadets and midshipmen; and present and former
civilian employees of any Component of the Department of Defense,
including nonappropriated fund activity employees; non-U.S.
nationals who perform services overseas, under the provisions of
status of forces agreements, for the United States Armed Forces;
and other specific individuals hired through contractual agreements
by or on behalf of the Department of Defense.
3. Litigation. 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 (including the Armed Services
Board of Contract Appeals), or other tribunals, foreign and
domestic. This term includes responses to discovery requests,
depositions, and other pretrial proceedings, as well as responses
to formal or informal requests by attorneys or others in situations
involving litigation.
4. Official Information. All information of any kind, however
stored, that is in the custody and control of the Department of
Defense, relates to information in the custody and control of the
Department, or was acquired by DoD 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 United States Armed
Forces.
D. Policy
It is DoD policy that official information should generally 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.
E. Responsibilities
1. The General Counsel, Department of Defense (GC, DoD), shall
provide general policy and procedural guidance by the issuance of
supplemental instructions or specific orders concerning the release
of official DoD information in litigation and the testimony of DoD
personnel as witnesses during litigation.
2. The Heads of DoD Components shall issue appropriate
regulations to implement this Directive and to identify official
information that is involved in litigation.
F. Procedures 1. Authority To Act
a. In response to a litigation request or demand for official
DoD information or the testimony of DoD personnel as witnesses, the
General Counsels of DoD, Navy, and the Defense Agencies; the Judge
Advocates General of the Military Departments; and the Chief Legal
Advisors to the JCS and the Unified and Specified Commands, with
regard to their respective Components, are authorized - after
consulting and coordinating with the appropriate Department of
Justice litigation attorneys, as required - to determine whether
official information originated by the Component may be released in
litigation; whether DoD personnel assigned to or affiliated with
the Component may be interviewed, contacted, or used as witnesses
concerning official DoD information or as expert witnesses; and
what, if any, conditions will be imposed upon such release,
interview, contact, or testimony. Delegation of this authority, to
include the authority to invoke appropriate claims of privilege
before any tribunal, is permitted.
b. In the event that a DoD Component receives a litigation
request or demand for official information originated by another
Component, the receiving Component shall forward the appropriate
portions of the request or demand to the originating Component for
action in accordance with this Directive. The receiving Component
shall also notify the requestor, court, or other authority of its
transfer of the request or demand.
c. Notwithstanding the provisions of paragraphs F.1.a. and b.,
the GC, DoD, in litigation involving terrorism, espionage, nuclear
weapons, intelligence means or sources, or otherwise as deemed
necessary, may notify Components that GC, DoD, will assume primary
responsibility for coordinating all litigation requests and demands
for official DoD information or the testimony of DoD personnel, or
both; consulting with the Department of Justice, as required; and
taking final action on such requests and demands.
2. Factors To Consider
In deciding whether to authorize the release of official DoD
information or the testimony of DoD personnel concerning official
information (hereinafter referred to as “the disclosure”) pursuant
to paragraph F.1., DoD officials should consider the following
types of factors:
a. Whether the request or demand is unduly burdensome or
otherwise inappropriate under the applicable court rules;
b. Whether the disclosure, including release in camera, is
appropriate under the rules of procedure governing the case or
matter in which the request or demand arose;
c. Whether the disclosure would violate a statute, executive
order, regulation, or directive;
d. Whether the disclosure, including release in camera, is
appropriate or necessary under the relevant substantive law
concerning privilege;
e. Whether the disclosure, except when in camera and necessary
to assert a claim of privilege, would reveal information properly
classified pursuant to the DoD Information Security Program under
DoD 5200.1-R (reference (d)), unclassified technical data withheld
from public release pursuant to DoD Directive 5230.25 (reference
(e)), or other matters exempt from unrestricted disclosure; and
f. Whether disclosure would interfere with ongoing enforcement
proceedings, compromise constitutional rights, reveal the identity
of an intelligence source or confidential informant, disclose trade
secrets or similarly confidential commercial or financial
information, or otherwise be inappropriate under the
circumstances.
3. Decisions on Litigation Requests and Demands
a. Subject to paragraph F.3.e., DoD personnel shall not, in
response to a litigation request or demand, produce, disclose,
release, comment upon, or testify concerning any official DoD
information without the prior written approval of the appropriate
DoD official designated in paragraph F.1. Oral approval may be
granted, but a record of such approval shall be made and retained
in accordance with the applicable implementing regulations.
b. If official DoD information is sought, through testimony or
otherwise, by a litigation request or demand, the individual
seeking such release or testimony must set forth, in writing and
with as much specificity as possible, the nature and relevance of
the official information sought. Subject to paragraph F.3.e., DoD
personnel may only produce, disclose, release, comment upon, or
testify concerning those matters that were specified in writing and
properly approved by the appropriate DoD official designated in
paragraph F.1. See United States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951).
c. Whenever a litigation request or demand is made upon DoD
personnel for official DoD information or for testimony concerning
such information, the personnel upon whom the request or demand was
made shall immediately notify the DoD official designated in
paragraph F.1. for the Component to which the individual contacted
is or, for former personnel, was last assigned. In appropriate
cases, the responsible DoD official shall thereupon notify the
Department of Justice of the request or demands. After due
consultation and coordination with the Department of Justice, as
required, the DoD official shall determine whether the individual
is required to comply with the request or demand and shall notify
the requestor or the court or other authority of the determination
reached.
d. If, after DoD personnel have received a litigation request or
demand and have in turn notified the appropriate DoD official in
accordance with paragraph F.3.c., a response to the request or
demand is required before instructions from the responsible
official are received, the responsible official designated in
paragraph F.1. shall furnish the requestor or the court or other
authority with a copy of this Directive and applicable implementing
regulations, inform the requestor or the court or other authority
that the request or demand is being reviewed, and seek a stay of
the request or demand pending a final determination by the
Component concerned.
e. If a court of competent jurisdiction or other appropriate
authority declines to stay the effect of the request or demand in
response to action taken pursuant to paragraph F.3.d., or if such
court or other authority orders that the request or demand must be
complied with notwithstanding the final decision of the appropriate
DoD official, the DoD personnel upon whom the request or demand was
made shall notify the responsible DoD official of such ruling or
order. If the DoD official determines that no further legal review
of or challenge to the court's ruling or order will be sought, the
affected DoD personnel shall comply with the request, demand, or
order. If directed by the appropriate DoD official, however, the
affected DoD personnel shall respectfully decline to comply with
the demand. See United States ex rel. Touhy v. Ragen,
340 U.S. 462 (1951).
4. Fees
Consistent with the guidelines in DoD Instruction 7230.7
(reference (f)), the appropriate officials designated in paragraph
F.1. are authorized to charge reasonable fees, as established by
regulation and to the extent not prohibited by law, to parties
seeking, by request or demand, official DoD information not
otherwise available under the DoD Freedom of Information Act
Program (reference (g)). Such fees, in amounts calculated to
reimburse the Government for the expense of providing such
information, may include the costs of time expended by DoD
employees to process and respond to the request or demand; attorney
time for reviewing the request or demand and any information
located in response thereto and for related legal work in
connection with the request or demand; and expenses generated by
materials and equipment used to search for, produce, and copy the
responsive information. See Oppenheimer Fund, Inc. v. Sanders, 437
U.S. 340 (1978).
5. Expert or Opinion Testimony
DoD personnel shall not provide, with or without compensation,
opinion or expert testimony concerning official DoD information,
subjects, or activities, except on behalf of the United States or a
party represented by the Department of Justice. Upon a showing by
the requestor of exceptional need or unique circumstances and that
the anticipated testimony will not be adverse to the interests of
the Department of Defense or the United States, the appropriate DoD
official designated in paragraph F.1. may, in writing, grant
special authorization for DoD personnel to appear and testify at no
expense to the United States. If, despite the final determination
of the responsible DoD official, a court of competent jurisdiction,
or other appropriate authority, orders the appearance and expert or
opinion testimony of DoD personnel, the personnel shall notify the
responsible DoD official of such order. If the DoD official
determines that no further legal review of or challenge to the
court's order will be sought, the affected DoD personnel shall
comply with the order. If directed by the appropriate DoD official,
however, the affected DoD personnel shall respectfully decline to
comply with the demand. See United States ex rel. Touhy v. Ragen,
340 U.S. 462 (1951).
G. Effective Date and Implementation
This Directive is effective immediately. Forward two copies of
implementing documents to the General Counsel, DoD, within 120
days.
Signed by William H. Taft, IV
Deputy Secretary of Defense.