The U.S. Department of Defense (DoD) issued a proposed rule last week that would modify 32 Code of Federal Regulations (CFR) Part 97, DoD's "Touhy regulation," to consolidate disparate requirements and procedures into a single department-level Touhy regulation and make the regulation clearer and more streamlined. For decades, private litigants have been required to file subpoenas or litigation requests pursuant to the applicable Touhy regulations to obtain U.S. government documents or witness testimony in cases where the United States is not a party — e.g., prime-subcontractor disputes, state tort suits, and various types of intellectual property matters. This can be tricky when DoD information or witnesses are involved because each service branch within DoD follows its own unique procedures. If adopted, the new consolidated and streamlined DoD Touhy regulation should benefit private litigants by reducing the time spent researching, reviewing, and complying with DoD Touhy requirements. Comments on the proposed rule are due by July 13, 2021.

Background

The Housekeeping Statute, 5 U.S.C. 301, authorizes agency heads to promulgate regulations governing "the custody, use and preservation of its records, papers, and property." In United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951), the Supreme Court held that under the authority of the Housekeeping Statute, agency heads could establish procedures for determining whether to release official information and allow personnel testimony sought through a subpoena or other litigation request.  

In 1985, DoD promulgated regulations setting forth DoD's "policies, practices, responsibilities, and procedures for the release of official DoD information in litigation and for the appearance and testimony by DoD personnel as witnesses during litigation." See 50 FR 32056; DoD Directive 5405.2, "Release of Official Information in Litigation and Testimony by DoD Personnel as Witnesses." While the regulations governing the release of information and presentation of witnesses by DoD personnel can be found at 32 CFR Part 97, the various DoD components, including the National Security Agency (NSA), the U.S. Department of the Army, and the U.S. Department of the Navy, all have their own regulations governing the release of information and testimony of department witnesses. As a result, depending on which component a private litigant seeks information or testimony from, a different set of Touhy regulations will apply to the request.

Summary of the Proposed Rule

Consolidation of Component-Level Rules  

The main purpose of the proposed rule is to consolidate the Touhy regulations from the other service branches into a single department-level rule. If adopted, DoD will rescind the following component level Touhy regulations:

• The NSA's Touhy regulation at 32 CFR part 93
• The Department of the Army's Touhy regulation at 32 CFR part 516
• The Department of the Navy's Touhy regulation at 32 CFR part 725
• The Department of the Navy's Touhy additional rules on delivery of personnel and production of official records at 32 CFR part 720

Additionally, DoD will not finalize the National Reconnaissance Office's proposed Touhy regulation published in the Federal Register on November 25, 2016 (81 FR 85196-85201).  

Under the proposed rule, the General Counsel of DoD will have the "overall responsibility" for the policy and implementation of the consolidated procedures and the DoD component heads will be responsible for implementing the policy and procedures and providing guidance to their respective components. In response to a litigation request or demand, the chief legal advisors for the DoD components will be authorized to: 

1. Determine whether their respective component may release official information originated by or in the custody of the component
2. Determine whether personnel assigned to, detailed to, or affiliated with their component may be contacted, interviewed, or used as witnesses concerning official information or, in exceptional circumstances, as expert witnesses 
3. Impose conditions or limitations on disclosures
4. Assert claims of privilege or projection before any court or adjudicative body 

The General Counsel of DoD, however, has the power to "assume primary responsibility for responding to any litigation request or demand, particularly if it involves terrorism, espionage, nuclear weapons, or intelligence means or sources." The proposed rule also describes the process to transfer a request if another DoD component or federal agency "originated the responsive information or otherwise has the primary equity with respect to that information."

Many of the procedural requirements in the proposed rule remain unchanged from the current DoD Touhy regulations. For example, a litigation request must still be in writing and describe with specificity the nature and relevance of the information or witness testimony sought. Private litigants and their attorneys, however, will need to become familiar with the new regulations if the proposed rule is adopted.  

Language Clarifications and Format Changes

Besides the consolidation of the component-level Touhy regulations, the proposed rule also aims to make 32 CFR Part 97 clearer and more streamlined by changing the format, providing additional definitions, and clarifying "awkward" language. For example, the proposed rule: (1) adds the defined term "chief legal advisors"; (2) revises the definition of "personnel" to make clear that the rule covers not only service members and civilian employees of every DoD component, but also employees of other federal agencies who are assigned to otherwise affiliated with a DoD component; and (3) divides the procedures section into five separate sections (authorities, factors to consider, requirements and determinations, fees, and expert or opinion testimony). These changes should also help attorneys and their clients better navigate the regulations.  

Conclusion

The stated goal of DoD's proposed rule is to "produce efficiencies and uniformity to the public's benefit." Consolidating the Touhy regulations into a single department-level rule and updating the regulation to make it clearer and more streamlined should benefit third-party litigants and their attorneys, including reducing the time spent by attorneys for private litigants on researching, reviewing, and complying with Touhy regulations. In particular, in-house and outside counsel who manage third-party litigation arising from the performance of government contracts – such as prime-subcontractor disputes, state tort suits, and intellectual property infringement cases – should monitor the progress of this proposed rule as it could impact their ability to obtain critical information from DoD to support their cases.  

For more information, please contact:

Alex L. Sarria, asarria@milchev.com, 202-626-5822

Elizabeth J. Cappiello*

Brian A. Hill*

*Former Miller & Chevalier attorney

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