RELEASE OF OFFICIAL INFORMATION FOR LITIGATION PURPOSES AND TESTIMONY BY DEPARTMENT OF THE NAVY PERSONNEL

[Title 32 CFR 725]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter Vi - DEPARTMENT OF THE NAVY]
[Subchapter C - PERSONNEL]
[Part 725 - RELEASE OF OFFICIAL INFORMATION FOR LITIGATION PURPOSES AND TESTIMONY BY DEPARTMENT OF THE NAVY PERSONNEL]
[From the U.S. Government Printing Office]

32NATIONAL DEFENSE52002-07-012002-07-01falseRELEASE OF OFFICIAL INFORMATION FOR LITIGATION PURPOSES AND TESTIMONY BY DEPARTMENT OF THE NAVY PERSONNEL725PART 725NATIONAL DEFENSEDepartment of Defense (Continued)DEPARTMENT OF THE NAVYPERSONNEL
PART 725--RELEASE OF OFFICIAL INFORMATION FOR LITIGATION PURPOSES AND TESTIMONY BY DEPARTMENT OF THE NAVY PERSONNEL--Table of Contents

Sec.
725.1 Purpose.
725.2 Policy.
725.3 Authority to act.
725.4 Definitions.
725.5 Applicability.
725.6 Authority to determine and respond.
725.7 Contents of a proper request or demand.
725.8 Considerations in determining to grant or deny a request.
725.9 Action to grant or deny a request.
725.10 Response to requests or demands in conflict with this
instruction.
725.11 Fees.

Authority: 5 U.S.C. 301; 10 U.S.C. 113, 5013; 31 U.S.C. 9701 and 32
CFR part 97.

Source: 57 FR 2463, Jan. 22, 1992, unless otherwise noted.

Sec. 725.1 Purpose.

This instruction implements 32 CFR part 97 regarding the release of
official Department of the Navy (DON) information and provision of
testimony by DON personnel for litigation purposes, and prescribes
conduct of DON personnel in response to a litigation request or demand.
It restates the information contained in Secretary of the Navy
Instruction 5820.8A of 27 August 1991\1\, and is intended to conform in
all respects with the requirements of that instruction.
---------------------------------------------------------------------------

\1\ Copies may be obtained, if needed, from the Naval Publications
and Forms Directorate, Attn: Code 301, 5801 Tabor Avenue, Philadelphia,
PA 19120-5099.
---------------------------------------------------------------------------

Sec. 725.2 Policy.

(a) It is DON policy that official factual information, both
testimonial and documentary, should be made reasonably available for use
in Federal courts, state courts, foreign courts, and other governmental
proceedings unless that information is classified, privileged, or
otherwise protected from public disclosure.
(b) DON personnel, as defined in Sec. 725.4(b), however, shall not
provide such official information, testimony, or documents, submit to
interview, or permit a view or visit, without the authorization required
by this part.
(c) DON personnel shall not provide, with or without compensation,
opinion or expert testimony concerning official DON or Department of
Defense (DOD) information, subjects, personnel, or activities, except on
behalf of the United States or a party represented by the Department of
Justice, or with the written special authorization required by this
part.
(d) Section 725.2(b) and (c) constitute a regulatory general order,
applicable to all DON personnel individually, and need no further
implementation. A violation of those provisions is punishable under the
Uniform Code of Military Justice for military personnel and is the basis
for appropriate administrative procedures with respect to civilian
employees. Moreover, violations of this instruction by DON personnel
may, under certain circumstances, be actionable under 18 U.S.C. 207.
(e) Upon a showing by a requester of exceptional need or unique
circumstances, and that the anticipated testimony will not be adverse to
the interests of the DON, DOD, or the United States, the General Counsel
of the Navy, the Judge Advocate General of the Navy, or their respective
delegates may, in their sole discretion, and pursuant to the guidance
contained in this instruction, grant such written special authorization
for DON personnel to appear and testify as expert or opinion witnesses
at no expense to the United States.

Sec. 725.3 Authority to act.

(a) The General Counsel of the Navy, the Judge Advocate General of
the Navy, and their respective delegates

[[Page 264]]

[hereafter ``determining authorities'' described in Sec. 725.4(a), shall
respond to litigation requests or demands for official DOD information
or testimony by DON personnel as witnesses.
(b) If required by the scope of their respective delegations,
determining authorities' responses may include: consultation and
coordination with the Department of Justice or the appropriate United
States Attorney as required; referral of matters proprietary to another
DOD component to that component; determination whether official
information originated by the Navy may be released in litigation; and
determination whether DOD personnel assigned to or affiliated with the
Navy may be interviewed, contacted, or used as witnesses concerning
official DOD information or as expert or opinion witnesses. Following
coordination with the appropriate commander, a response may further
include whether installations, facilities, ships, or aircraft may be
visited or inspected; what, if any, conditions will be imposed upon any
release, interview, contact, testimony, visit, or inspection; what, if
any, fees shall be charged or waived for access under the fee assessment
considerations set forth in Sec. 725.11; and what, if any, claims of
privilege, pursuant to this instruction, may be invoked before any
tribunal.

Sec. 725.4 Definitions.

(a) Determining authority. The cognizant DON or DOD official
designated to grant or deny a litigation request. In all cases in which
the United States is, or might reasonably become, a party, or in which
expert testimony is requested, the Judge Advocate General or the General
Counsel of the Navy, depending on the subject matter of the request,
will act as determining authority. In all other cases, the
responsibility to act as determining authority has been delegated to all
officers exercising general court-martial convening authority, or to
their subordinate commands, and to other commands and activities
indicated in Sec. 725.6.
(b) DON personnel. Active duty and former military personnel of the
naval service including retirees; personnel of other DOD components
serving with a DON component; Naval Academy midshipmen; present and
former civilian employees of the DON including non-appropriated fund
activity employees; non-U.S. nationals performing services overseas for
the DON under provisions of status of forces agreements; and other
specific individuals or entities hired through contractual agreements by
or on behalf of DON, or performing services under such agreements for
DON (e.g., consultants, contractors and their employees and personnel).
(c) Factual and expert or opinion testimony. DON policy favors
disclosure of factual information if disclosure does not violate the
criteria stated in Sec. 725.8. The distinction between factual matters,
and expert or opinion matters (where DON policy favors non-disclosure),
is not always clear. The considerations set forth below pertain.
(1) Naval personnel may merely be percipient witnesses to an
incident, in which event their testimony would be purely factual. On the
other hand, they may be involved with the matter only through an after-
the-event investigation (e.g., JAGMAN investigation). Describing the
manner in which they conducted their investigation and asking them to
identify factual conclusions in their report would likewise constitute
factual matters to which they might testify. In contrast, asking them to
adopt or reaffirm their findings of fact, opinions, and recommendations,
or asking them to form or express any other opinion--particularly one
based upon matters submitted by counsel or going to the ultimate issue
of causation or liability--would clearly constitute precluded testimony
under the above policy.
(2) Naval personnel, by virtue of their training, often form
opinions because they are required to do so in the course of their
duties. If their opinions are formed prior to, or contemporaneously
with, the matter in issue, and are routinely required of them in the
course of the proper performance of their professional duties, they
constitute essentially factual matters (i.e., the opinion they
previously held). Opinions formed after the event in question, including
responses to hypothetical questions, generally constitute the sort of
opinion

[[Page 265]]

or expert testimony which this instruction is intended to severely
restrict.
(3) Characterization of expected testimony by a requester as fact,
opinion, or expert is not binding on the determining authority. When
there is doubt as to whether or not expert or opinion (as opposed to
factual) testimony is being sought, advice may be obtained informally
from, or the request forwarded, to the Deputy Assistant Judge Advocate
General (General Litigation) or the Associate General Counsel
(Litigation) for resolution.
(d) 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, or reasonably anticipated
to involve, civil or criminal litigation.
(e) Official information. All information of any kind, however
stored, in the custody and control of the DOD and its components
including the DON; relating to information in the custody and control of
DOD or its components; or acquired by DOD personnel or its component
personnel as part of their official duties or because of their official
status within DOD or its components, while such personnel were employed
by or on behalf of the DOD or on active duty with the United States
Armed Forces (determining whether ``official information'' is sought, as
opposed to non-DOD information, rests with the determining authority
identified in Sec. 725.6, rather than the requester).
(f) Request or demand (legal process). Subpoena, order, or other
request by a federal, state, or foreign court of competent jurisdiction,
by any administrative agency thereof, or by any party or other person
(subject to the exceptions stated in Sec. 725.5) for production,
disclosure, or release of official DOD information or for appearance,
deposition, or testimony of DON personnel as witnesses.

Sec. 725.5 Applicability.

(a) This instruction applies to all present and former civilian and
military personnel of the DON whether employed by, or assigned to, DON
temporarily or permanently. Affected personnel are defined more fully in
Sec. 725.4(b).
(b) This instruction applies only to situations involving existing
or reasonably anticipated litigation, as defined in Sec. 725.4(d), when
DOD information or witnesses are sought, whether or not the United
States, the DOD, or its components are parties thereto. It does not
apply to formal or informal requests for information in other
situations.
(c) This instruction provides guidance only for DON operation and
activities of its present and former personnel in responding to
litigation requests. It is not intended to, does not, and may not be
relied upon to, create any right or benefit, substantive or procedural,
enforceable at law or equity against the United States, DOD, or DON.
(d) This instruction 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.
(e) This instruction does not supersede or modify existing laws, DOD
or DON regulations, directives, or instructions governing testimony of
DON personnel or release of official DOD or DON information during grand
jury proceedings.
(f) This instruction does not control release of official
information in response to requests unrelated to litigation or under the
Freedom of Information Act (FOIA), 5 U.S.C. 552, or the Privacy Act, 5
U.S.C. 552a. This instruction does not preclude treating any written
request for DON records as a request under the FOIA or Privacy Acts.
Activities are encouraged to treat such requests for documents under the
FOIA or the Privacy Act if they are invoked by the requestor either
explicitly or by fair implication. See 32 CFR 701.3(a), 701.10(a).
Activities are reminded that such treatment does not absolve them of the
responsibility to respond in a timely fashion to legal

[[Page 266]]

process. In any event, if the official information requested pertains to
a litigation matter which the United States is a present or potential
party, the release authority should notify the delegate of the General
Counsel or the Judge Advocate General, under Sec. 725.6.
(g) This part does not apply to release of official information or
testimony by DON personnel in the following situations:
(1) Before courts-martial convened by any DOD component, or in
administrative proceedings conducted by, or on behalf of, such
component;
(2) Under administrative proceedings conducted by, or on behalf of,
the Equal Employment Opportunity Commission (EEOC) or the Merit Systems
Protection Board (MSPB), the Federal Labor Relations Authority, the
Federal Services Impasse Panel, or under a negotiated grievance
procedure under a collective bargaining agreement to which the
Government is a party;
(3) In response to requests by Federal Government counsel, or
counsel representing the interests of the Federal Government, in
litigation conducted, in whole or in part, on behalf of the United
States (e.g., Medical Care Recovery Act claims, affirmative claims, or
subpoenas issued by, or concurred in by, Government counsel when the
United States is a party), but the regulation does apply to an action
brought under the qui tam provisions of the False Claims Act in which a
private party brings an action in the name of the United States but in
which the Department of Justice either has not yet determined to
intervene in the litigation or has declined to intervene;
(4) As part of the assistance required by the Defense Industrial
Personnel Security Clearance Review Program under DOD Directive
5220.6\2\;
---------------------------------------------------------------------------

\2\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

(5) Release of copies of Manual of the Judge Advocate General
(JAGMAN) investigations, to the next of kin (or their representatives)
of deceased or incompetent naval personnel;
(6) Release of information by DON personnel to counsel retained on
their behalf for purposes of litigation, unless that information is
classified, privileged, or otherwise protected from disclosure (in the
latter event, compliance with 32 CFR part 97 and this part is required);
(7) Cases involving garnishment orders for child support and/or
alimony. The release of official information in these cases is governed
by 5 CFR 581 and SECNAVINST 7200.16\3\, or;
---------------------------------------------------------------------------

\3\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

(8) Release of information to Federal, state, and local prosecuting
and law enforcement authorities, in conjunction with an investigation
conducted by a DOD component or DON criminal investigative organization.
(h) This part does not preclude official comment on matters in
litigation in appropriate cases.
(i) The DOD General Counsel may notify DOD components that DOD will
assume primary responsibility for coordinating all litigation requests
for demands for official DOD information or testimony of DOD personnel
in litigation involving terrorism, espionage, nuclear weapons, and
intelligence sources or means. Accordingly, determining officials who
receive requests pertaining to such litigation shall notify the
Associate General Counsel (Litigation) or the Deputy Assistant Judge
Advocate General (International Law or General Litigation) who shall
consult and coordinate with DOD General Counsel prior to any response to
such requests.
(j) Relationship with Federal Rules of Procedure. The requirements
imposed by this instruction are intended, among other things, to provide
adequate notice to DON regarding the scope of proposed discovery. This
will assure that certain DON information, which properly should be
withheld, is not inadvertently released in response to a litigation
request or demand, including a subpoena or other request for discovery
issued under Federal rules of procedure. When the United States is a
party to Federal litigation and the party opponent uses discovery
methods (e.g., request for interrogatories and admissions, depositions)
set forth in Federal rules of procedure, the Judge Advocate General or
General Counsel, in consultation with representatives of the Department
of Justice or the cognizant United States Attorney, may

[[Page 267]]

determine whether the requirement for a separate written request in
accordance with Sec. 725.7 should be waived. Even if this requirement is
waived, however, DON personnel who are subpoenaed to testify still will
be required to obtain the written permission described in Sec. 725.2.

Sec. 725.6 Authority to determine and respond.

(a) Matters proprietary to DON. If a litigation request or demand is
made of DON personnel for official DON or DOD information or for
testimony concerning such information, the individual to whom the
request or demand is made will immediately notify the cognizant DON
official designated in Sec. 725.6(c) and (d), who will determine
availability and respond to the request or demand.
(b) Matters proprietary to another DOD component. If a DON activity
receives a litigation request or demand for official information
originated by another DOD component or for non-DON personnel presently
or formerly assigned to another DOD component, the DON activity will
forward appropriate portions of the request or demand to the DOD
component originating the information, to the components where the
personnel are assigned, or to the components where the personnel were
formerly assigned, for action under 32 CFR part 97. The forwarding DON
activity will also notify the requester and court (if appropriate) or
other authority of its transfer of the request or demand.
(c) Litigation matters to which the United States is, or might
reasonably become, a party. Examples of such instances include suits
under the Federal Tort Claims Act, Freedom of Information Act, Medical
Care Recovery Act, Tucker Act, and suits against Government contractors
where the contractor may interplead the United States or seek
indemnification from the United States for any judgment paid, e.g.,
aviation contractors or asbestos matters. Generally, a suit in which the
plaintiff is representing the interests of the United States under the
Medical Care Recovery Act is not a litigation matter to which the United
States is, or might reasonably become, a party. Determining authorities,
if in doubt whether the United States is likely to become a party to the
litigation, should seek guidance from representatives of the Offices of
the Judge Advocate General or General Counsel. The Judge Advocate
General and the General Counsel have the authority to determine whether
a litigation request should be forwarded to them, or retained by a
determining authority, for resolution.
(1) Litigation requests regarding matters assigned to the Judge
Advocate General of the Navy under Navy Regulations, art. 0331
(1990)\4\, shall be referred to the Deputy Assistant Judge Advocate
General (DAJAG) for General Litigation, 200 Stovall Street, Alexandria,
VA 22332-2400, who will respond for the Judge Advocate General or
transmit the request to the appropriate Deputy Assistant Judge Advocate
General for response.
---------------------------------------------------------------------------

\4\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

(2) Litigation requests regarding matters assigned to the General
Counsel of the Navy under Navy Regs., art. 0327 (1990)\5\, shall be
referred to the cognizant Command Counsel under, and subject to,
limitations set forth in Sec. 725.6(d)(2). That Command Counsel may
either respond or refer the matter for action to another office.
Requests involving asbestos litigation shall be referred to the Office
of Counsel, Naval Sea Systems Command Headquarters, Personnel and Labor
Law Section (Code 00LD), Washington, DC 20362-5101. Matters not clearly
within the purview of a particular command counsel shall be referred to
Associate General Counsel (Litigation), who may either respond or refer
the matter for action to another office.
---------------------------------------------------------------------------

\5\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

(3) Matters involving the Armed Services Board of Contract Appeals
shall be forwarded to these respective counsel except where the
determination may involve the assertion of the deliberative process
privilege before that Board. In such an event, the matter shall be
forwarded for determination to the Associate General Counsel
(Litigation).
(d) Litigation matters in which the United States is not, and is
reasonably

[[Page 268]]

not expected to become, a party--(1) Matters within the cognizance of
the Judge Advocate General--(i) Fact witnesses. Requests to interview,
depose, or obtain testimony of any present or former DON personnel as
defined in Sec. 725.4(b) about purely factual matters shall be forwarded
to the Navy or Marine Corps officer exercising general court-martial
jurisdiction (OEGCMJ) in whose chain of command the prospective witness
or requested documents lie. That determining authority will respond for
the Judge Advocate General under criteria set forth in Sec. 725.8.
(A) If the request pertains to personnel assigned to the Office of
the Chief of Naval Operations, the Office of the Vice Chief of Naval
Operations, or an Echelon 2 command located in the Washington, DC, area,
it shall be forwarded to that office which will likewise respond for the
Judge Advocate General under the criteria set forth in Sec. 725.8.
(B) If a request pertains to Marine Corps personnel assigned to
Headquarters Battalion, Headquarters Marine Corps, or to other Marine
Corps commands located in the Washington, DC, area, it shall be
forwarded to the Commandant of the Marine Corps (JAR), Headquarters,
U.S. Marine Corps, Washington, DC 20380-0001, which will respond for the
Judge Advocate General under criteria set forth in Sec. 725.8.
(C) Nothing here shall prevent a determining authority from
referring requests or demands to another determining authority better
suited under the circumstances to determine the matter and respond, but
the requester shall be notified of the referral. Further, each
determining authority specified in this paragraph may further delegate
his or her decisional authority to a principal staff member, staff judge
advocate, or legal advisor.
(D) In the alternative, the requester may forward the request to the
Deputy Assistant Judge Advocate General (General Litigation), who may
refer the matter to another determining authority for response, and so
notify the requester.
(ii) Visits and views. A request to visit a DON activity, ship, or
unit, or to inspect material or spaces located there will be forwarded
to one of the authorities stated in Sec. 725.6(d)(1)(i), who will
respond on behalf of the Judge Advocate General. Action taken by that
authority will be coordinated with the commanding officer of the
activity, ship, or unit at issue, or with his or her staff judge
advocate (if applicable). The military mission of the unit shall
normally take precedence over any visit or view. The commanding officer
may independently prescribe reasonable conditions as to time, place, and
circumstances to protect against compromise of classified or privileged
material, intrusion into restricted spaces, and unauthorized
photography.
(iii) Documents. 10 U.S.C. 7861 provides that the Secretary of the
Navy has custody and charge of all DON books, records, and property.
Under DOD Directive 5530.1\6\, the Secretary of the Navy's sole delegate
for service of process is the General Counsel of the Navy. See 32 CFR
257.5(c). All process for such documents shall be served upon the
General Counsel at the Department of the Navy, Washington, DC, 20350-
1000, who will refer the matter to the proper delegate for action.
Matters referred to the Judge Advocate General will normally be provided
to the determining authorities described in Sec. 725.6(c) and (d). That
authority will respond per criteria in Sec. 725.8. Process not properly
served on the General Counsel is insufficient to constitute a legal
demand and shall be processed as a request by counsel. Requests for
documents maintained by the National Personnel Records Center will be
determined by the official provided in Sec. 725.8(b)(2)(iii).
---------------------------------------------------------------------------

\6\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

(iv) Expert or opinion requests. Any request for expert or opinion
consultations, interviews, depositions, or testimony will be referred to
the Deputy Assistant Judge Advocate General (General Litigation) who
will respond for the Judge Advocate General, or transmit the request to
the appropriate DAJAG for response. Matters not clearly within the
purview of a particular Deputy Assistant Judge Advocate General will be
retained by the

[[Page 269]]

Deputy Assistant Judge Advocate General (General Litigation), who may
either respond or refer the matter to another determining authority for
response.
(2) Matters within the cognizance of the General Counsel of the
Navy--(i) Matters not involving issues of Navy policy. Such matters
shall be forwarded for determination to the respective counsel for Naval
Sea Systems Command, Naval Air Systems Command, Naval Supply Systems
Command, Naval Facilities Engineering Command, Space and Naval Warfare
Command, Office of the Navy Comptroller, Commandant of the Marine Corps,
Office of the Chief of Naval Research, Military Sealift Command, Office
of Civilian Personnel Policy, or to the Assistant General Counsel
(Acquisition), depending upon who has cognizance over the information or
personnel at issue.
(ii) Matters involving issues of Navy policy. Such matters shall be
forwarded for determination to the General Counsel of the Navy via the
Associate General Counsel (Litigation).
(iii) Matters involving asbestos litigation. Such matters shall be
forwarded to the Office of Counsel, Naval Sea Systems Command
Headquarters, Personnel and Labor Law Section (Code 00LD), Washington,
DC 20362-5101.
(3) Matters not clearly within the cognizance of either the Judge
Advocate General or the General Counsel. Such matters may be sent to the
Deputy Assistant Judge Advocate General (General Litigation) or the
Associate General Counsel (Litigation), who will, in consultation with
the other, determine the appropriate authority to respond to the
request.

Sec. 725.7 Contents of a proper request or demand.

(a) Routine requests. If official information is sought, through
testimony or otherwise, a detailed written request must be submitted to
the appropriate determining authority far enough in advance to assure an
informed and timely evaluation of the request, and prevention of adverse
effects on the mission of the command or activity that must respond. The
determining authority shall decide whether sufficient information has
been provided by the requester. Absent independent information, the
following data is necessary to assess a request.
(1) Identification of parties, their counsel and the nature of the
litigation. (i) Caption of case, docket number, court.
(ii) Name, address, and telephone number of all counsel.
(iii) The date and time on which the documents, information, or
testimony sought must be produced; the requested location for
production; and, if applicable, the estimated length of time that
attendance of the DON personnel will be required.
(2) Identification of information or documents requested. (i) A
description, in as much detail as possible, of the documents,
information, or testimony sought, including the current military
service, status (active, separated, retired), social security number, if
known, of the subject of the requested pay, medical, or service records;
(ii) The location of the records, including the name, address, and
telephone number, if known, of the person from whom the documents,
information, or testimony is sought; and
(iii) A statement of whether factual, opinion, or expert testimony
is requested (see Secs. 725.4(c) and 725.8(b)(3)(ii)).
(3) Description of why the information is needed. (i) A brief
summary of the facts of the case and the present posture of the case.
(ii) A statement of the relevance of the matters sought to the
proceedings at issue.
(iii) If expert or opinion testimony is sought, an explanation of
why exceptional need or unique circumstances exist justifying such
testimony, including why it is not reasonably available from any other
source.
(b) Additional considerations. The circumstances surrounding the
underlying litigation, including whether the United States is a party,
and the nature and expense of the requests made by a party may require
additional information before a determination can be made. Providing the
following information or stipulations in the original request may
expedite review and eliminate the need for additional correspondence
with the determining authority.

[[Page 270]]

(1) A statement of the requester's willingness to pay in advance all
reasonable expenses and costs of searching for and producing documents,
information, or personnel, including travel expenses and accommodations
(if applicable);
(2) In cases in which deposition testimony is sought, a statement of
whether attendance at trial or later deposition testimony is anticipated
and requested. A single deposition normally should suffice;
(3) An agreement to notify the determining authority at least 10
working days in advance of all interviews, depositions, or testimony.
Additional time for notification may be required where the witness is a
DON health care provider or where the witness is located overseas;
(4) An agreement to conduct the deposition at the location of the
witness, unless the witness and his or her commanding officer or
cognizant superior, as applicable, stipulate otherwise;
(5) In the case of former DON personnel, a brief description of the
length and nature of their duties while in DON employment, and a
statement of whether such duties involved, directly or indirectly, the
information or matters as to which the person will testify;
(6) An agreement to provide free of charge to any witness a signed
copy of any written statement he or she may make, or, in the case of an
oral deposition, a copy of that deposition transcript, if taken by a
stenographer, or a video tape copy, if taken solely by video tape, if
not prohibited by applicable rules of court;
(7) An agreement that if the local rules of procedure controlling
the litigation so provide, the witness will be given an opportunity to
read, sign, and correct the deposition at no cost to the witness or the
Government;
(8) A statement of understanding that the United States reserves the
right to have a representative present at any interview or deposition;
and
(9) A statement that counsel for other parties to the case will be
provided with a copy of all correspondence originated by the determining
authority so they may have the opportunity to submit any related
litigation requests and participate in any discovery.
(c) Response to deficient requests. A letter request that is
deficient in providing necessary information may be returned to the
requester by the determining authority with an explanation of the
deficiencies and a statement that no further action will be taken until
they are corrected. If a subpoena has been received for official
information, counsel should promptly determine the appropriate action to
take in response to the subpoena. See Sec. 725.9(g).
(d) Emergency requests. Written requests are generally required by
32 CFR part 97.
(1) The determining authority, identified in Sec. 725.6, has
discretion to waive that requirement in the event of a bona fide
emergency, under conditions set forth here, which were not anticipated
in the course of proper pretrial planning and discovery. Oral requests
and subsequent determinations should be reserved for instances where
factual matters are sought, and compliance with the requirements of a
proper written request would result in the effective denial of the
request and cause an injustice in the outcome of the litigation for
which the information is sought. No requester has a right to make an
oral request and receive a determination. Whether to permit such an
exceptional procedure is a decision within the sole discretion of the
determining authority, unless overruled by the General Counsel or the
Judge Advocate General, as appropriate.
(2) If the determining authority concludes that the request, or any
portion of it, meets the emergency test, he or she will require the
requester to agree to the conditions set forth in Sec. 725.7(a). The
determining authority will then orally advise the requester of the
determination, and seek a written confirmation of the oral request.
Thereafter, the determining authority will make a written record of the
disposition of the oral request including the grant or denial,
circumstances requiring the procedure, and conditions to which the
requester agreed.
(3) The emergency procedure should not be utilized where the
requester refuses to agree to the appropriate conditions set forth in
Sec. 725.7(a) or indicates

[[Page 271]]

unwillingness to abide by the limits of the oral grant, partial grant,
or denial.

Sec. 725.8 Considerations in determining to grant or deny a request.

(a) General considerations. In deciding whether to authorize release
of official information, or the testimony of DON personnel concerning
official information (hereafter referred to as ``the disclosure'' under
a request conforming with the requirements of Sec. 725.7, the
determining authority shall consider the following factors:
(1) The DON policy regarding disclosure in Sec. 725.2;
(2) Whether the request or demand is unduly burdensome or otherwise
inappropriate under applicable court rules;
(3) Whether disclosure, including release in camera (i.e., to the
judge or court alone), is appropriate under procedural rules governing
the case or matter in which the request or demand arose;
(4) Whether disclosure would violate or conflict with a statute,
executive order, regulation, directive, instruction, or notice;
(5) Whether disclosure, in the absence of a court order or written
consent, would violate 5 U.S.C. 552, 552a;
(6) Whether disclosure, including release in camera, is appropriate
or necessary under the relevant substantive law concerning privilege
(e.g., attorney-client, attorney work-product, or physician-patient in
the case of civilian personnel);
(7) Whether disclosure, except when in camera (i.e., before the
judge alone) and necessary to assert a claim of privilege, would reveal
information properly classified under the DOD Information Security
Program under DOD 5200.1-R\7\, withholding of unclassified technical
data from public disclosure following OPNAVINST 5510.161; privileged
Naval Aviation Safety Program information (OPNAVINST 3750.6Q
(NOTAL))\8\, or other matters exempt from unrestricted disclosure under
5 U.S.C. 552, 552a;
---------------------------------------------------------------------------

\7\ See footnote 1 to Sec. 725.1.
\8\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

(8) Whether disclosure would unduly interfere with ongoing law
enforcement proceedings, violate constitutional rights, reveal the
identity of an intelligence source or source of confidential
information, conflict with U.S. obligations under international
agreement, or be otherwise inappropriate under the circumstances;
(9) Whether attendance of the requested witness at deposition or
trial will unduly interfere with the military mission of the command;
and
(10) Whether, in a criminal case, requiring disclosure by a
defendant of detailed information about the relevance of documents or
testimony as a condition for release would conflict with the defendant's
constitutional rights.
(b) Specific considerations--(1) Documents, interviews, depositions,
testimony, and views (where the United States is, or may become, a
party). All requests pertaining to such matters shall be forwarded to
the Judge Advocate General or the General Counsel, as appropriate under
Sec. 725.6(c).
(2) Documents (where the United States is not, and is reasonably not
expected to become a party)--(i) Unclassified Navy and Marine Corps
records. Where parties or potential parties desire unclassified naval
records in connection with a litigation matter, the subpoena duces tecum
or court order will be served, under 32 CFR 257.5(c), upon the General
Counsel of the Navy, along with a written request complying with
Sec. 725.7.
(A) If the determining authority to whom the matter is referred
determines to comply with the order or subpoena, compliance will be
effected by transmitting certified copies of records to the clerk of the
court from which process issued. If, because of an unusual circumstance,
an original record must be produced by a naval custodian, it will not be
removed from the custody of the person producing it, but copies may be
placed in evidence.
(B) Upon written request of one or more parties in interest or their
respective attorneys, records which would be produced in response to a
court order signed by a judge as set forth above may be furnished
without a court order, but only upon a request complying with Sec. 725.7
and only when such records are not in a ``system of records'' as defined
by the Privacy Act (5 U.S.C. 552a). In determining whether a record not
contained in a ``system of

[[Page 272]]

records'' will be furnished in response to a Freedom of Information Act
(FOIA) request, SECNAVINST 5720.42E\9\ controls.
---------------------------------------------------------------------------

\9\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

(C) Generally, a record in a Privacy Act ``system of records'' may
not be released under a litigation request except with the written
consent of the person to whom the record pertains or in response to a
court order signed by a judge. See SECNAVINST 5211.5C\10\ and 5 U.S.C.
552, 552a for further guidance.
---------------------------------------------------------------------------

\10\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

(D) Whenever compliance with a court order or subpoena duces tecum
for production of DON records is denied for any reason, the subpoena or
court order and complete copies of the requested records will be
forwarded to the appropriate Deputy Assistant Judge Advocate General
(General Litigation) or the Associate General Counsel (Litigation) for
action, and the parties to the suit notified in accordance with this
part.
(ii) Classified Navy and Marine Corps records. Any consideration of
release of classified information for litigation purposes, within the
scope of this instruction, must be coordinated within the Office of the
Chief of Naval Operations (OP-09N) per OPNAVINST 5510.1H.\11\
---------------------------------------------------------------------------

\11\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

(iii) Records in the custody of the National Personnel Records
Center. Court orders or subpoenas duces tecum demanding information
from, or production of, service or medical records of former Navy and
Marine Corps personnel in the custody of the National Personnel Records
Center will be served upon the Director, National Personnel Records
Center, 9700 Page Boulevard, St. Louis, MO 63132. If records responsive
to the request are identified and maintained at the National Personnel
Records Center, that Center shall make appropriate certified
(authenticated) copies of the information requested. These copies will
then be forwarded, along with the request, in the case of Navy
personnel, to Chief, Bureau of Naval Personnel (Pers-06), Washington, DC
20370-5000, or his delegate, who will respond. In the case of Marine
Corps personnel, the copies and request will be sent to the Commandant
of the Marine Corps (MMRB-10), Quantico, VA 22134-0001, who will
respond. Those requests that do not constitute legal demands will be
refused by the Director, National Personnel Records Center, and written
guidance provided to the requester.
(iv) Medical and other records of civilian employees. Production of
medical certificates or other medical reports concerning civilian
employees is controlled by Federal Personnel Manual, chapter 294 and
chapter 339.1-4.\12\ Records of civilian employees, other than medical
records, may be produced upon receipt of a court order and a request
complying with Sec. 725.7, provided no classified or for official use
only information, such as loyalty or security records, are involved.
Disclosure of records relating to compensation benefits administered by
the Office of Workers' Compensation Programs of the Department of Labor
are governed by Secretary of the Navy Instruction 5211.5C (Privacy Act
implementation) and Secretary of the Navy Instruction 5720.42E (Freedom
of Information Act implementation), as appropriate. Where information is
furnished per this subparagraph in response to a court order and proper
request, certified copies rather than originals should be furnished.
Where original records must be produced because of unusual
circumstances, they may not be removed from the custody of the official
producing them, but copies may be placed on the record.
---------------------------------------------------------------------------

\12\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

(v) JAGMAN investigations (other than to next of kin). The Deputy
Assistant Judge Advocate General having cognizance over the records at
issue for litigation or prospective litigation purposes may release the
records if a complete release will result. The Assistant Judge Advocate
General (Civil Law) will make determinations concerning the release of
the records specified in this subparagraph if a release of less than the
complete requested record will result. A release to next of kin of
incompetent or deceased DON personnel or their representatives is exempt
from these requirements and this part.

[[Page 273]]

(vi) Affirmative claims files. Affirmative claims files (including
Medical Care Recovery Act files), except to the extent they contain
copies of JAGMAN investigations prepared under the Manual of the Judge
Advocate General, or classified or privileged information, may be
released by the commanding officer of the Naval Legal Service Office
having cognizance over the claim at issue, without compliance with this
instruction, to: insurance companies to support claims; to civilian
attorneys representing injured service persons, their dependents, and
the Government's interests; and to other DOD components. When a request
for production involves material related to claims in favor of the
Government, either the cognizant Command Counsel or the Naval Legal
Service Office having territorial responsibility for the area should be
notified.
(vii) Accounting for disclosures from ``systems of records.'' When
compliance with a litigation request or demand for production of records
is appropriate, or when release of records is otherwise authorized, and
records contained in a ``system of records,'' are released, the
releasing official will consult Secretary of the Navy Instruction
5211.5C regarding disclosure accounting requirements.
(viii) Pay records. Official pay records of active-duty, reserve,
retired, or former Navy members should be requested from Director,
Defense Finance and Accounting Service (DFAS), Cleveland Center, Anthony
J. Celebrezze Federal Building, Cleveland, OH 44199-2055. Official pay
records of active-duty, reserve, retired, or former Marines should be
requested from Director, Defense Finance and Accounting Service, Kansas
City Center (Code G), Kansas City, MO 64197-0001.
(3) Interviews, depositions, and testimony (where the United States
is not, and is reasonably not expected to become, a party)--(i) Factual
matters. DON policy favors disclosure of factual matters when disclosure
does not violate the criteria stated in this section. Distinguishing
between factual matters and expert or opinion matters (where DON policy
favors non-disclosure) requires careful analysis. Opinion matters are
defined at Sec. 725.4(c).
(ii) Expert, opinion, or policy matters. Such matters are to be
determined, under the delegation in Sec. 725.6, by the cognizant Deputy
Assistant Judge Advocate General or by General Counsel. General
considerations to identify expert or opinion testimony are in
Sec. 725.4(c). DON personnel shall not provide, with or without
compensation, opinion or expert testimony concerning official
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 requester of exceptional need or unique circumstances,
and that the anticipated testimony will not be adverse to the interests
of the DOD or the United States, the appropriate DON official designated
in Sec. 725.6, may grant, in writing, special authorization for DON
personnel to appear and testify at no expense to the United States. In
determining whether exceptional need or unique circumstances exist, the
determining official should consider whether such expert or opinion
testimony is available to the requester from any other source. The
burden of demonstrating such unavailability, if any, is solely upon the
requester.
(iii) Visits and views (where the United States is not, and is
reasonably not expected to become, a party). Such disclosures are
normally factual in nature and should not be accompanied by interviews
of personnel unless separately requested and granted. The authority of
the commanding officer of the activity, ship, or unit at issue is not
limited by this part. Accordingly, he or she may prescribe appropriate
conditions as to time, place, and circumstances (including proper
restrictions on photography).
(iv) Non-DOD information. A request for disclosure under this part,
particularly through the testimony of a witness, may involve both
official information and non-DOD information (e.g., in the case of a
person who has acquired additional and separate knowledge or expertise
wholly apart from Government employment). Determining whether or not
official information is at issue is within the purview of the
determining authority, not the requester. A requester's contention that
only non-DOD information is at issue

[[Page 274]]

is not dispositive. The requester must still comply with this
instruction to support that contention. If non-DOD information is at
issue in whole or in part, the determining authority shall so state in
the written determination described in Sec. 725.9. He or she shall make
no other determination regarding that non-DOD information.

Sec. 725.9 Action to grant or deny a request.

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

Sec. 725.10 Response to requests or demands in conflict with this instruction.

(a) Except as otherwise provided in this paragraph, DON personnel,
including former military personnel and civilian employees, shall not
produce, disclose, release, comment upon, or

[[Page 275]]

testify concerning any official DOD information in response to a
litigation request or demand without prior written approval of the
appropriate DON official designated in Sec. 725.6. If a request has been
made, and granted, in whole or in part, per 32 CFR part 97 and this
part, DON personnel may only produce, disclose, release, comment upon,
or testify concerning those matters specified in the request and
properly approved by the determining authority designated in Sec. 725.6.
See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
(b) If, after DON personnel have received a litigation request or
demand and have in turn notified the appropriate determining authority
described in Sec. 725.6, a response to the request or demand is required
before instructions from the responsible official have been received,
the responsible authority designated in Sec. 725.6 shall notify the
Deputy Assistant Judge Advocate General or Associate General Counsel
(Litigation) who has cognizance over the matter. That official will
furnish the requester, the court, or other authority that the request or
demand is being reviewed in accordance with this part and seek a stay of
the request or demand pending a final determination.
(c) 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 under Sec. 725.10(b), or if such court or other
authority orders that the request or demand must be complied with,
notwithstanding the final decision of the appropriate DON official, the
DON personnel upon whom the request or demand was made will, if time
permits, notify the determining authority of such ruling or order. That
authority will notify the Deputy Assistant Judge Advocate General or the
Associate General Counsel (Litigation) having cognizance over the
matter. After due consultation and coordination with the Department of
Justice, as required by the Manual of the Judge Advocate General, that
official will determine whether the individual is required to comply
with the request or demand and will notify the requester, the court, or
other authority accordingly. The witness shall, if directed by the
appropriate DON official, respectfully decline to comply with the
demand. Legal counsel for the command concerned should accompany and
advise DON personnel during any court proceedings involving the
foregoing circumstances.
(d) It is expected that all DON actions in the foregoing paragraphs
will be taken only after active consultation with the appropriate
component of the Department of Justice. Generally, DON personnel will be
instructed to decline to comply with a court order only if the
Department of Justice commits to represent the DON personnel in
question.

Sec. 725.11 Fees.

(a) Generally. Except as provided below, determining authorities
shall charge reasonable fees and expenses to parties seeking official
DON information or testimony under this instruction. Pursuant to 32 CFR
288.4, 288.10, these fees should include all costs of processing a
request for information, including time and material expended. Travel
for active duty members summoned as witnesses is governed by Joint
Travel Regulations, Vol. I, Chap. 7, pt. E. and Navy Travel
Instructions, Chap. 6, pt. E.\13\ Travel for civilian personnel summoned
as witnesses is governed by the Joint Travel Regulations, Vol. II, Chap.
4, pt. E.\14\
---------------------------------------------------------------------------

\13\ See footnote 1 to Sec. 725.1.
\14\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

(1) When DON is a party. No fees normally shall be charged when the
DON is a party to the proceedings, and the activity holding the
requested information or employing the witness shall bear the expense of
complying with the request.
(2) When another federal agency is a party. No fees shall be charged
to the requesting agency. Travel and per diem expenses may be paid by
the requesting agency, or by the Navy activity to which the requested
witness is assigned, subject to reimbursement from the requesting
agency.
(3) When neither DON nor another federal agency is a party. Fees
shall be charged to the requester for time taken from official duties by
DON personnel who are authorized to be interviewed,

[[Page 276]]

give testimony, or escort persons on views and visits of installations.
At the discretion of the cognizant command, DON personnel need not be
made available during duty hours unless directed by subpoena. Time which
DON personnel spend in court testifying, or waiting to testify on
factual matters shall not be charged. Fees should be charged, however,
for expert or opinion testimony based upon the witness's education,
training, or experience. Testimony by a treating physician called to
testify about his personal knowledge of a specific case is considered
fact not expert testimony. Fees are payable to the Treasurer of the
United States for deposit in the Treasury's miscellaneous receipts.
Rates for uniformed personnel are published in NAVCOMPT Notice 7041
series.\15\ Pursuant to 32 CFR 288.4, charges for civilian personnel
should include the employee's hourly rate of pay, as well as allowances
and benefits. Except as provided in Sec. 725.11(b)(4), no funds may be
expended for travel or per diem of active duty members when an agency of
the Federal Government is not a party. The requesting party is
responsible for travel arrangements and funding. Government funding of
travel and per diem for civilian employees is authorized.
---------------------------------------------------------------------------

\15\ See footnote 1 to Sec. 725.1.
---------------------------------------------------------------------------

(b) Special circumstances--(1) Refusal to pay fees. In cases in
which a subpoena has been received and the requester refuses to pay
appropriate fees, it may become necessary to request the Department of
Justice to take appropriate legal action before the court issuing the
subpoena. Determining authorities should consult promptly with the OJAG
General Litigation Division or the Navy Litigation Office of the General
Counsel if this course of action appears necessary, because some
objections to subpoenas must be made either within ten days of service
of the subpoena or on or before the time for compliance, whichever first
occurs, and because this will require timely consultation with the
Department of Justice. If no subpoena has been issued, the determining
authority must decide whether to deny the request or, if appropriate,
waive the fees.
(2) Waiver or reduction of fees. The determining authority may waive
or reduce fees pursuant to 32 CFR 288.4, 288.9, provided such waiver or
reduction is in the best interest of the DON and the United States. Fee
waivers and reductions shall not be routinely granted, or granted under
circumstances which might create the appearance that DON favors one
party over another.
(3) Witness fees required by the court. Witness fees required by the
rules of the applicable court shall be paid directly to the witness by
the requester. Such amounts are to defray the cost of travel and per
diem. In a case where the Government has paid the cost of travel and per
diem, the witness shall turn over to his or her supervisor any payment
received from a private party to defray the cost of travel that, when
added to amounts paid by the Government, exceed the actual cost of
travel. The supervisor shall forward the amount turned over by the
witness to the Office of the Comptroller of the Navy for appropriate
action.
(4) Exceptional cases. If neither the DON, nor an agency of the
Federal Government is a party, appropriated funds may be used to pay,
without reimbursement, travel and per diem of DON personnel who are
witnesses in criminal or civil proceedings, provided, the case is
directly related to the Armed Services, or its members, and the Armed
Services have a genuine and compelling interest in the outcome.