graph (b)(2)(iii) of this section, requests for the employment of private counsel at Government expense will be referred through channels to The Judge Advocate General. Every such request will be accompanied by a statement of facts justifying the request and the recommendations of commanders or supervisors concerned. Persons who employ private counsel in such cases should be advised that they may be individually responsible for any expenses thus incurred, if they do so without notice from The Judge Advocate General that specific authorization has been obtained.

(ii) In actions or proceedings brought in foreign countries, if immediate court representation is required beyond feasible handling by the judge advocate concerned and the local court or agency has denied a request for a stay or continuance to permit action on a formal request for the hiring of a local attorney, local counsel may be retained, preferably selected from a listing of qualified and suitable foreign counsel maintained at the United States Embassy or Consulate in the country or city in which the action or proceeding has been initiated. The retention of such counsel will specifically be made contingent on confirmation by the Department of Justice. If the case falls within its responsibility, the Department of Justice will employ the attorney thus selected or pay him for the services performed in the event he is not retained generally. The local attorney retained under this emergency authorization should avoid any steps which could be construed as a waiver of sovereign immunity of the United States, its agencies and instrumentalities, and officials or employees whose official conduct is involved, from suit in a foreign court. Any appearance by such counsel, prior to receipt of instructions from the Department of Justice, should be limited to the local equivalent of a special appearance on the jurisdictional point or the procuring of a stay of the proceedings, provided such actions would not constitute a general appearance.

(iii) Counsel may be hired to represent persons subject to the Uniform Code of Military Justice before foreign

courts and administrative agencies (10 U.S.C. 1037). Requests for such counsel will be processed under AR 27-50.

(3) Government contractors. (i) Upon request from the Army, the Department of Justice normally will defend suits against contractors whose contracts with the United States provide for reimbursement to the contractor for recoveries against them arising out of any suits in connection with the performance of the contract, or for the reimbursement of the fees paid private counsel and the costs of such litigation.

(ii) Litigation Division, Office of The Judge Advocate General, will decide which cases referred to it will be referred to the Department of Justice with a request that the contractor be represented by a U.S. Attorney. Such representation will not be requested in cases where no investigative report or pleadings are required to be furnished to The Judge Advocate General. Upon notice of the commencement of any suit against a contractor which requires the submission of an investigative report to The Judge Advocate General, the contracting agency will ascertain whether the contractor desires government representation. If such representation is desired, the contracting agency will obtain from the contractor an executed agreement for representation and forward it with the investigative report.

(iii) Upon receipt of advice that the U.S. Attorney will act on behalf of the contractor, or that his services are not available, the contracting officer or purchasing office will so inform the contractor.

(iv) The following relationships and responsibilities in the conduct of any ensuing litigation are furnished for guidance:

(a) Unless the contractor requests and is authorized representation by a U.S. Attorney, it is presumed that the contractor will obtain such services of private counsel as are reasonably necessary to defend the appropriate contractor interests.

(b) Where the contractor is represented by a U.S. Attorney, there is no objection to the participation of private counsel employed by the contractor, provided it is understood the U.S.

Attorney has complete control of the litigation. Fees for the services of private counsel in such cases will not be reimbursable except under unusual circumstances and then only if approved by The Judge Advocate General.

(c) The Department of Justice does not charge the contractor or the Department of the Army for any expenses incident to services performed by a U.S. Attorney.

(d) The compromise of a suit is primarily for determination by the contractor. Aspects of reimbursement under the contract are primarily for determination by the contracting officer. If the approval of a compromise by higher authority is desired, the contracting officer may forward the compromise proposal with his views and those of the U.S. Attorney, if one is participating in the case, through procurement channels.

(e) Private counsel representing the contractor may seek advice from the Army with respect to appealing an adverse judgment. In such case the matter may be referred through procurement channels to The Judge Advocate General.

The reimbursability and reasonableness of the fees of private counsel are primarily for determination by the contracting officer.

[37 FR 23722, Nov. 8, 1972]

§§ 516.4 and 516.5 govern the release of information exempt from release to the public when this information is sought for use in litigation and the appearance of military personnel and civilian employees of the Army as witnesses before civilian courts and regulatory bodies. It pertains to private litigation as well as to litigation in which the United States has an interest.

(b) Explanation of terms—(1) Information exempt from release to the public. Those categories of information delineated or defined by § 518.10 of this subchapter.

(2) Private litigation. Litigation in which the United States is not a party and in the outcome of which it has no interest, either direct or indirect.

(3) Litigation in which the United States has an interest. (i) The United States or one of its agencies or instrumentalities has been or probably will be named as a party; or

(ii) The suit is against a military member or civilian employee of the Army or one of its agencies or instrumentalities and arises out of the individual's performance of official duties;

or

(iii) The suit arises out of an Army contract, subcontract, or purchase order under the terms of which the United States may be required to reimburse the contractor for recoveries, fees, or costs of the litigation; or

(iv) The suit involves administrative proceedings before Federal, State, municipal, or foreign tribunals or regulatory bodies that may result in a financial impact upon the Army; or

(v) The suit may affect the operations of the Army or purport to re quire, limit, or interfere with official action by a military member or civilian employee; or

(vi) The United States has a financial interest in the plaintiff's recovery;

or

(vii) Foreign litigation in which the United States is bound by treaty or agreement to insure attendance of military personnel or civilian employ

ees.

(4) Release of information. The disclosure of information from Army records by furnishing copies, extracts, or summaries of such records; by permitting examination of such records; or by permitting interview with or statement by the custodian or other person having knowledge of their content.

(5) Subpoena. Includes Subpoena Ad Testificandum and Subpoena Duces Tecum.

(c) Related regulations. The basic policies for release of information are in Part 518 of this subchapter. Other regulations restrict the release of specific types of information and are applicable when consistent with this regulation and Part 518 of this subchapter. Special note should be made of the regulations listed in the appendix.

(d) Reference to The Judge Advocate General. (1) Requests and subpoenas for information exempt from release

to the public when this information is sought for use in litigation or for the appearance of witnesses which require approval by the Department of the Army will be submitted to HQDA (DAJA—LT) WASH DC 20310, except:

(i) Those involving patents, copyrights, privately developed technical information, or trademarks will be addressed to HQDA (DAJA-PA) WASH DC 20310.

(ii) Those involving problems of taxation will be addressed to HQDA (DAJA-PL) WASH DC 20310.

(iii) Those involving communication, transportation, or utility service proceedings will be addressed to HQDA (DAJA-RL) WASH DC 20310.

(2) Requests and subpoenas forwarded should be accompanied by such of the following data as may be appropriate:

(i) Parties (names or prospective) to the proceeding, their attorneys, and case number, where appropriate;

(ii) Party making the request (if a subpoena, indicate moving party) and his attorney;

(iii) Name of tribunal in which the proceeding is pending;

(iv) Nature of the proceeding;

(v) Date of receipt of request or date and place of service of subpoena;

(vi) Name, grade, position, and organization of person receiving request or served with subpoena;

(vii) Date, time, and place designated in request or subpoena for production of information or appearance of witness;

(viii) Nature of information sought or document requested, and place where document is maintained;

(ix) A copy of each document requested. If the document is voluminous, a description may be forwarded in lieu of the copy;

(x) Analysis of the problem with recommendations of the forwarding

agency.

(e) Determination by The Judge Advocate General. The Judge Advocate General, acting personally or through such subordinates as he may designate, will coordinate within Headquarters, Department of the Army, all requests or subpoenas referred to him pursuant to paragraph (d) of this section. He will determine whether the

witness should be permitted to testify or to grant an interview or whether the information should be released. Authority may be granted for release of information or for the appearance of a witness even though the information may be used by or the appearance may be on behalf of a party whose interest is adverse to the interest of the United States.

(f) Response to subpoena. This paragraph provides policy and procedures for response to subpoenas.

(1) No present or former military member or civilian employee of the Department of the Army shall, in response to the demand of a court order or other authority, produce or disclose any information exempt from release to the public contained in the files of the Department of the Army or disclose or produce any information exempt from release to the public acquired as a part of the performance of his official duties or because of his official status without the prior approval of the Secretary of the Army.

(2) When an official of the Department of the Army to whom a subpoena is referred concludes that a record should not be released or a witness should not appear and testify because such record or testimony would disclose information exempt from release to the public, that fact will be reported immediately to The Judge Advocate General as provided in paragraph (d) of this section. If The Judge Advocate General determines that a record should not be released or an individual should not testify on a particular matter in response to a subpoena, he will advise the person served of the action to be taken (Touhy v. Ragen, 340 US 462).

(3) If a person served with a subpoena fails to receive authorization or other instructions prior to the time fixed for the production of records or appearance in court, he should communicate with counsel responsible for issuing the subpoena, state that he can produce the desired record or can testify on the matter only if authorized, and request a postponement pending receipt of authorization or ascertain if other releasable information can be substituted. If postponement is refused and other information will not

suffice, he should appear in court, submit a copy of this and other applicable regulations, and inform the court that

(i) Records of the Department of the Army can be produced or that he may appear and testify on the matter only if authorized by the Secretary of the Army or by the person designated by the Secretary to act on his behalf, and

(ii) He has requested but has not received authorization or other instructions. He should respectfully request the court or other authority to stay the report or subpoena pending receipt of authority or other instructions.

(4) If the court or other authority declines to stay the effect of its demand for information exempt from release to the public pending receipt of instructions from the Secretary of the Army, or if the court or other authority rules that the demand must be complied with irrespective of instruction from the Secretary of the Army not to produce or disclose the information sought, the present or former military member or civilian employee upon whom the demand was made shall decline respectfully to comply with the demand.

(5) In each instance described above, a judge advocate or civilian attorney of the command concerned should accompany and advise the witness during the court proceedings. Within the United States, the local US Attorney should be consulted.

[38 FR 32133, Nov. 21, 1973]

§ 516.4 Release of Information in Connection with Litigation.

(a) Scope. This section deals with requests and subpoenas for information to be used in litigation.

(b) Records of the Army and other agencies. (1) Preservation: In order to preserve the integrity of records of the Department of the Army, originals of books, records, papers, or documents will not be furnished to any person or agency for use as evidence in public or private legal proceedings. Properly authenticated copies of Government records may be admitted in evidence in lieu of originals. See 28 U.S.C. 1733.

(2) Authentication of copies: Copies of Department of the Army records

approved for release under this regulation will, when necessary, be authenticated for introduction into evidence by use of a Department of the Army certificate (DA Form 4). After the custodian has executed his certificate, the preparing agency will forward the DA Form 4 and a copy of the record to the Headquarters, Department of the Army staff agency indicated below for authentication by the Secretary of the Army:

(i) Records maintained in US Army Engineer Districts and Divisions will be forwarded to the Chief of Engineers, Department of the Army, Washington, DC 20315.

(ii) All other records will be forwarded to the official designated in § 518.11 of this subchapter as having release authority for that type document.

(3) Fees and charges: The schedule of fees and charges for searching, copying, and certifying Army records is set forth in AR 37-30.

(4) Documents originated by agencies or organizations outside the Department of the Army (e.g., FBI reports, State traffic accident investigation reports, civilian hospital records) which are included with Army records may be released only with the consent of the originating agency or organization. Normally an individual requesting such records should be advised to direct his inquiry to the originating agency or organization.

(c) Requests and subpoenas for information releasable to the public. Requests or subpoenas for information not exempt from release to the public will be handled as prescribed in Part 518 of this subchapter.

(d) Requests and subpoenas for information exempt from release to the public. Requests and subpoenas duces tecum for information exempt from release to the public and which may not be released under § 518.7(d) of this subchapter will be processed as follows:

(1) Subpoenas for defense (classified) information which cannot be declassified will be referred to The Judge Advocate General as provided in § 516.3(f).

(2) Subpoenas for medical or personnel records, not releasable to the public or under § 518.7(d) of this sub

chapter will be responded to by submitting properly authenticated copies of the records to the court (or to the clerk of the court), where:

(i) The subpoena is accompanied by a court order, or such order is separately served, which orders the person to whom the records pertain to consent to the release of the specific records or orders authenticated copies delivered to the clerk of the court and that order has determined their materiality and the nonavailability of a claim of privilege; or

(ii) The clerk of the court is empowered by local statute or practice to receive the records under seal subject to a request that they be withheld from the parties until the court determines the records are material to the issues and until any question of privilege is resolved; or

(iii) The custodian is required to appear and authenticate the records, he may appear in court with a copy of the records under seal, state their general content, and surrender them with a request that they remain sealed until the court determines their materiality and privileged nature, if any.

(3) Judge advocates and legal officers may furnish to the attorney for the injured party and to the tort feasor's insurance company a copy of the narrative summary of medical care which relates to a claim under chapter 5, AR 27-40. If additional medical records are requested, only those which directly pertain to the pending action will be furnished. If furnishing copies of medical records will be injurious to the injured party's health or prejudice the cause of action, the matter will be reported to HQDA (DAJA-LT) WASH DC 20310.

(4) Other requests from the Department of Justice, U.S. Attorneys, States' Attorneys, or attorneys for private litigants will be forwarded to The Judge Advocate General as prescribed in § 516.3(f).

[38 FR 32134, Nov. 21, 1973]

§ 516.5 Department of the Army Personnel as Witnesses in Civil Litigation. (a) Scope. This section deals with interviews and appearances of military personnel and civilian employees of the Army as witnesses in person or by

deposition before civil courts and administrative tribunals pursuant to request of counsel or in response to subpoena or other order of court. It is applicable to private litigation as well as to litigation in which the United States has an interest.

(b) Private litigation. (1) The appearance of military personnel and civilian employees in private litigation is solely a personal matter between the prospective witness and the requesting party unless

(i) The testimony involves information exempt from release to the public, information obtained in an official capacity, or information relating to Army activities; or

(ii) The prospective witness is solicited to testify as an expert; or

(iii) The absence of a prospective witness from duty will seriously interfere with the accomplishment of the military mission of the command or organization; or

(iv) The appearance involves overseas travel.

(2) Requests for interviews with or subpoena for the testimony of military personnel or civilian employees in private litigation will be referred to the individual's commanding officer supervisor. Except in instances involving paragraphs (b)(1) (i) through (iv) of this section the commander or supervisor may permit the requested interview or subpoenaed attendance.

(3) The decision whether to grant an interview or to testify, as distinguished from the questions of release of information and Army authorization for any necessary absence from duty is a personal matter for the individual. If for personal reasons the military member or civilian employee does not desire to grant the interview or to testify, he will be counseled by the judge advocate or legal adviser on the legal consequences of his refusal.

(c) Exempt information, Army activities, or official capacity. Where the expected testimony will involve information exempt from release to the public, Army activities, or information obtained in an official capacity, the matter will be referred to the judge advocate or legal adviser of the command or agency of the individual whose testimony is requested. The