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DOD/OS RIN: 0790-AK11 Publication ID: Fall 2020 
Title: Release of Official Information in Litigation and Presentation of Witness Testimony by DoD Personnel (Touhy Regulation)  

The Touhy regulation, as this rule is commonly known, prescribes procedures for the submission and processing of third-party litigation requests for information, which list the requirements for the proper submission of such a request, the factors that the chief legal advisor of the pertinent DoD component will consider when determining whether to release the information requested, and the fees that the component may collect to cover its associated expenses. The rule proposes to implement authorities afforded by the Housekeeping Statute, 5 U.S.C. 301, as interpreted by the Supreme Court in United States ex rel. Touhy v. Ragen, 340 U.S.C. 462 (1951). All Federal agencies have issued their own Touhy regulations, and private litigants refer to these regularly. DoD’s current Touhy regulation has been in place since 1985 and requires updating. This rule proposes to update the standing policy that DoD generally should make official information reasonably available for use in litigation, as long as the information is not classified, privileged, or otherwise protected. The rule also proposes to update procedures for processing subpoenas and other litigation requests. These updates consist essentially of administrative revisions that result in a clearer and better organized rule. The revision of 32 CFR part 97 supports a recommendation of the DoD Regulatory Reform Task Force.

Agency: Department of Defense(DOD)  Priority: Substantive, Nonsignificant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage 
Major: No  Unfunded Mandates: Undetermined 
EO 13771 Designation: Not subject to, not significant 
CFR Citation: 32 CFR 97   
Legal Authority: 5 U.S.C. 301    10 U.S.C. 113   
Legal Deadline:  None
Action Date FR Cite
NPRM  04/00/2021 
Regulatory Flexibility Analysis Required: No  Government Levels Affected: None 
Federalism: No 
Included in the Regulatory Plan: No 
RIN Data Printed in the FR: No 
Agency Contact:
Alcides Ortiz-Ferrari
Office of Litigation Counsel, DoD OGC
Department of Defense
Office of the Secretary
1600 Defense Pentagon,
Washington, DC 20301-1600
Phone:703 571-0795