§ 97.8 Procedures—factors to consider.

In making a determination pursuant to § 97.7(a), the chief legal advisors will consider whether: (a) The litigation request or demand is overbroad, unduly burdensome, or otherwise inappropriate under applicable law or court rules. (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 Volume 1 of DoD Manual 5200.01, “DoD Information Security Program: Overview, Classification, and Declassification,” February 24, 2012, as amended (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/520001m_vol1.pdf?ver=2018-05-04-091448-843). (2) Controlled Unclassified Information pursuant to Volume 4 of DoD Manual 5200.01, “DoD Information Security Program: Controlled Unclassified Information (CUI),” February 24, 2012, as amended (available at https://www.esd.whs.mil/Portals/54/Documents/DD/issuances/dodm/520001-V4p.PDF?ver=2018-05-09-115318-927). (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 enforcement proceeding. (2) Compromise a constitutional right. (3) Expose an intelligence source or confidential informant. (4) Divulge a trade secret or similar confidential information. (5) Be otherwise inappropriate.