RELEASE OF OFFICIAL INFORMATION IN LITIGATION AND PRESENTATION OF WITNESS TESTIMONY BY SSS PERSONNEL (TOUHY REGULATION)

32 C.F.R. Part 1660
in effectEffective: 2024-07-01

32 C.F.R. § 1660.1 Purpose.

This part establishes policy, assigns responsibilities, and prescribes procedures for the release of official information in litigation and the presentation of witness testimony by Selective Service System (SSS) personnel pursuant to 5 U.S.C. 301 and the Supreme Court's decision in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).

32 C.F.R. § 1660.2 Applicability.

This part: (a) Applies to all SSS personnel (see § 1660.3), in particular, members and personnel of the Office of the Director, National Headquarters Directorates and Offices, Region Offices, Data Management Center, the National Appeals Board, District Appeals Boards, Local Boards (including panels, multicounty, and intercounty boards), and all other organizational entities within the SSS (referred to collectively in this part as the “SSS Components”). (b) Is intended only to provide guidance for the internal operations of the SSS, without displacing the responsibility of the Department of Justice to represent the United States in litigation. (c) Does not preclude official comments on matters in litigation. (d) Does not apply to the release of official information or the presentation of witness testimony in connection with: (1) Administrative proceedings or investigations conducted by or for a SSS Component. (2) Security-clearance adjudicative proceedings. (3) Administrative proceedings conducted by or for the Equal Employment Opportunity Commission or the Merit Systems Protection Board. (4) Negotiated grievance proceedings conducted in accordance with a collective bargaining agreement. (5) Requests by Government counsel representing the United States or a Federal agency in litigation. (6) Disclosures to Federal, State, local, or foreign authorities related to investigations or other law-enforcement activities. (e) Does not affect in any way existing laws or SSS programs governing: (1) The release of official information or the presentation of witness testimony in grand jury proceedings. (2) Freedom of Information Act requests submitted pursuant to 32 CFR part 1662, even if the records sought are related to litigation. (3) Privacy Act requests submitted pursuant to 32 CFR part 1665, even if the records sought are related to litigation. (4) The release of official information outside of litigation. (f) Does not create any right or benefit (substantive or procedural) enforceable at law against the SSS or the United States.

32 C.F.R. § 1660.3 Definitions.

These terms and their definitions are for the purpose of this part. Court. A Federal, State, or local court, tribunal, commission, board, or other adjudicative body of competent jurisdiction. Demand. An order or subpoena by a court of competent jurisdiction for the production or release of official information or for the presentation of witness testimony by SSS personnel at deposition or trial. Disclosure. The release of official information in litigation or the presentation of witness testimony by SSS personnel. Legal advisor. (1) The General Counsel of the SSS (SSS GC). (2) Any legal advisor designated by the SSS GC. Litigation. All pretrial (e.g., discovery), trial, and post-trial stages of existing judicial or administrative actions, hearings, investigations, or similar proceedings before a court, whether foreign or domestic. Litigation request. Any written request by a party in litigation or the party's attorney for the production or release of official information or for the presentation of witness testimony by SSS personnel at deposition, trial, or similar proceeding. Official information. All information of any kind and however stored that is in the custody and control of the SSS, relates to information in the custody and control of the SSS, or was acquired by SSS personnel due to their official duties or status. Personnel. (1) Employees of the SSS. (2) Present and former (e.g., retired, separated) Service members assigned to, detailed to, or otherwise affiliated with the SSS. (3) Present and former (e.g., retired, separated) employees of another Federal agency assigned to, detailed to, or otherwise affiliated with the SSS. (4) Any individuals who are or were supervised by an SSS official and who perform or have performed services for the SSS through a contractual arrangement. (5) Any individuals who perform or have performed services for the SSS as a volunteer board member (local, panel, multicounty, intracounty, district appeals). (6) Members of the National Appeals Board. SSS Components. The SSS Components consist of: (1) The Office of the Director. (2) National Headquarters Directorates and Offices. (3) Region Offices. (4) Data Management Center. (5) the National Appeals Board. (6) District Appeals Boards. (7) Local Boards (including panels, multicounty, and intercounty boards). (8) All other organizational entities within the SSS.

32 C.F.R. § 1660.4 Policy.

(a) It is the policy of the SSS to make official factual information, both testimonial and documentary, 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) SSS personnel, as defined in § 1660.3, 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) SSS personnel shall not provide, with or without compensation, opinion or expert testimony concerning official SSS 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) Paragraphs (b) and (c) of this section constitute a regulatory general order, applicable to all SSS personnel individually, and need no further implementation. A violation of the provisions in paragraphs (b) and (c) is the basis for appropriate administrative procedures with respect to civilian employees. Moreover, violations of this paragraph (d) by SSS 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 SSS or the United States, the SSS GC may, in their sole discretion, and pursuant to the guidance contained in this part, grant such written special authorization for SSS personnel to appear and testify as expert or opinion witnesses at no expense to the United States.

32 C.F.R. § 1660.5 Responsibilities—the Selective Service System General Counsel.

The SSS GC has overall responsibility for the policy in this part, oversees the implementation of its procedures throughout the SSS, and provides supplemental guidance as appropriate.

32 C.F.R. § 1660.6 Responsibilities—the SSS Component heads.

The SSS Component heads implement the policy and procedures in this part and, through the SSS GC or other SSS legal advisor, provide guidance for their respective components.

32 C.F.R. § 1660.7 Procedures—authorities.

(a) In response to a litigation request or demand, and after any required coordination with the Department of Justice, the SSS GC and other SSS legal advisor (see § 1660.3) are authorized to: (1) Determine whether the respective SSS Components may release official information originated by or in the custody of such components. (2) Determine whether personnel assigned to, detailed to, or affiliated with the respective SSS Components 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 approved pursuant to this paragraph (a) (e.g., approve the release of official information only to a Federal judge for in-camera review). (4) Assert claims of privilege or protection before any court. (b) The SSS GC may assume primary responsibility for responding to any litigation request or demand.

32 C.F.R. § 1660.8 Procedures—factors to consider.

In making a determination pursuant to § 1660.7(a), the SSS GC and other SSS legal advisor will consider whether: (a) The litigation request or demand is overbroad, unduly burdensome, or otherwise inappropriate under applicable law or court rules, or this part. (b) The disclosure would be improper (e.g., the information is irrelevant, cumulative, or disproportional to the needs of the case) under the rules of procedure governing the litigation from which the request or demand arose. (c) The official information or witness testimony is privileged or otherwise protected from disclosure under applicable law. (d) The disclosure would violate a statute, Executive order, regulation, or policy. (e) The disclosure would reveal: (1) Information properly classified pursuant to 44 U.S.C. chapters 21, 22, 31, 33, and 35; 5 U.S.C. 102, 105, 552, and 552a; Executive Order 12968, “Access to Classified Information,” August 2, 1995, as amended; Intelligence Community Directive 703, “Protection of Classified National intelligence, Including Sensitive Compartmental Information (SCI),” June 21, 2013; Executive Order 12958, “Classified National Security Information,” April 17, 1995, as amended; and Presidential Memorandum, “Implementation of the Executive Order, `Classified National Security Information,' ” December 29, 2009. (2) Controlled Unclassified Information pursuant to Executive Order 13556, “Controlled Unclassified Information,” November 4, 2010, as amended; and 32 CFR part 2002. (3) Technical data withheld pursuant to 32 CFR part 250. (4) Information protected by the Privacy Act, which may not be disclosed in the absence of written consent, a routine use, or other authority listed in 5 U.S.C. 552a(b). (5) Information otherwise exempt from unrestricted disclosure. (f) The disclosure would: (1) Interfere with an ongoing law enforcement proceeding. (2) Compromise a constitutional right of another. (3) Expose an intelligence source or confidential informant. (4) Divulge a trade secret or similar confidential information. (5) Be otherwise inappropriate.

32 C.F.R. § 1660.9 Procedures—requirements and determinations.

(a) A litigation request or demand must describe, in writing and with specificity, the nature of the official information or witness testimony sought, its relevance to the litigation, and other pertinent details addressing the factors in § 1660.8. (b) A litigation request or demand must be submitted at least 30 days before the desired date to the Selective Service System, General Counsel, 1501 Wilson Blvd., Suite 800, Arlington, Virginia 22209. (c) Personnel and former personnel (e.g., retired employees and Reserve Service Members, past volunteers) who receive a litigation request or demand must notify the SSS GC or their SSS legal advisor immediately. (d) If another Federal agency originated the responsive information or otherwise has the primary equity with respect to that information, the SSS GC will: (1) Transfer the litigation request or demand (or the appropriate portions) to such other agency for action. (2) Inform the requesting party or issuing court. (e) If the litigation request or demand requires a response before a determination can be made, the SSS GC or other SSS legal advisor will inform the requesting party or the issuing court (through the Department of Justice) that the request or demand is still under consideration. The SSS GC or other SSS legal advisor also may seek a stay from the court in question until a final determination is made. (f) Upon making a final determination pursuant to § 1660.7(a), the SSS GC or other SSS legal advisor will inform the requesting party or issuing court. (g) If the SSS GC or other SSS legal advisor approves the release of official information or the presentation of witness testimony, personnel will limit the disclosure to those matters approved by the SSS GC or other SSS legal advisor. Personnel may not release, produce, comment on, or testify about any official information without the prior written approval of the SSS GC or other SSS legal advisor. (h) If a court orders a disclosure that the SSS GC or other SSS legal advisor previously disapproved or has yet to approve, personnel must respectfully decline to comply with the court's order unless the SSS GC or other SSS legal advisor directs otherwise.

32 C.F.R. § 1660.10 Procedures—fees.

Parties seeking official information by litigation request or demand may be charged reasonable fees to reimburse expenses associated with the Government's response. These reimbursable expenses may include the cost of: (a) Materials and equipment used to search for, copy, and produce responsive information. (b) Personnel time spent processing and responding to the request or demand. (c) Attorney time spent assisting with the Government's response, to include reviewing the request or demand and the potentially responsive information.

32 C.F.R. § 1660.11 Procedures—expert or opinion testimony.

In any legal proceeding before the SSS or in which the United States (including any Federal agency or officer of the United States) is a party: (a) The SSS GC shall arrange for an employee to testify as a witness for the United States whenever the attorney representing the United States requests it. (b) SSS personnel may testify for the United States both as to facts within their personal knowledge and as an expert or opinion witness. Except as provided in paragraph (c) of this section, SSS personnel may not testify as an expert or opinion witness, with regard to any matter arising out of their official duties or the functions of the SSS, for any party other than the United States in any legal proceeding in which the United States is a party. SSS personnel who receive a demand to testify on behalf of a party other than the United States may testify as to facts within the employee's personal knowledge, provided that the testimony be subject to the prior written approval of the SSS GC or other SSS legal advisor and to the Federal Rules of Civil Procedure and any applicable claims of privilege, the anticipated testimony is not adverse to the interests of the SSS or the United States Government, and is presented at no cost to the Government. (c) SSS personnel may testify as an expert or opinion witness on behalf of the SSS or in any legal proceeding conducted by the SSS or the United States.

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