PART 93—ACCEPTANCE OF SERVICE OF PROCESS; RELEASE OF OFFICIAL INFORMATION IN LITIGATION; AND TESTIMONY BY NSA PERSONNEL AS WITNESSES Authority: E.O. 12333, 3 CFR, 1981 Comp., p. 200; 50 U.S.C. apps. 401, 402. Source: 56 FR 51328, Oct. 11, 1991, unless otherwise noted. § 93.1 References. (a) DoD Directive 5405.2, 1 1 (b) E.O. 12333, United States Intelligence Activities, 3 CFR, 1981 Comp., p. 200, reprinted in 50 U.S.C. app. 401. (c) The National Security Agency Act of 1959, Public Law No. 86-36, as amended, 50 U.S.C. app. 402. (d) Rule 4, Federal Rules of Civil Procedure. (e) DoD Instruction 7230.7, 2 2 (f) 28 CFR 50.15. § 93.2 Purpose and applicability. (a) This part implements § 93.1(a) in the National Security Agency/Central Security Service including all field sites (hereinafter referred to collectively as NSA). The procedures herein are also promulgated pursuant to the NSA's independent authority, under § 1.12(b)(10) of E.O. 12333 referenced under § 93.1(b), to protect the security of its activities, information and employees. This part establishes policy, assigns responsibilities, and prescribes mandatory procedures for service of process at NSA and for the release of official information in litigation by NSA personnel, through testimony or otherwise. (b) This part is intended only to provide guidance for the internal operation of the NSA and does not create any right or benefit, substantive or procedural, enforceable at law against the United States, the Department of Defense, or NSA. This part does not override the statutory privilege against the disclosure of the organization or any function of the NSA, of any information with respect to the activities thereof, or of the names, titles, salaries, or numbers of the persons employed by the NSA. See section 6(a) of the DoD Directive referenced under § 93.1(a). § 93.3 Definitions. (a) Service of process. (b) Demand. (c) NSA personnel. (d) Litigation. (e) Official information. (1) Is in the custody and control of NSA; or (2) Relates to information in the custody and control of NSA; or (3) Was acquired by NSA personnel as part of their official duties or because of their official status within NSA. (f) General Counsel. (g) NSA attorney. § 93.4 Policy. Official information that is not classified, privileged, or otherwise protected from public disclosure, should generally be made reasonably available for use in Federal and State courts and by other governmental bodies. § 93.5 Procedures. (a) Release of official information in litigation. (1) If official information is sought, through testimony or otherwise, by a litigation demand, the individual seeking such release or testimony must set forth, in writing and with as much specificity as possible, the nature and relevance of the official information sought. Subject to paragraph (a)(5) of this section, NSA personnel may only produce, disclose, release, comment upon or testify concerning those matters that were specified in writing and approved by the GC. (2) Whenever a litigation demand is made upon NSA personnel for official information or for testimony concerning such information, the person upon whom the demand was made shall immediately notify the OGC. After consultation and coordination with the DoJ, if required, the GC shall determine whether the individual is required to comply with the demand and shall notify the requester or the court or other authority of that determination. (3) If a litigation demand requires a response before instructions from the GC are received, the GC shall furnish the requester or the court or other authority with a copy of § 93.1(a) and this part 93. The GC shall also inform the requester or the court or other authority that the demand is being reviewed, and seek a stay of the demand pending a final determination. (4) If a court or other authority declines to stay the demand in response to action taken pursuant to paragraph 3 of this section, or if such court or other authority orders that the demand must be complied with notwithstanding the final decision of the GC, the NSA personnel upon whom the demand was made shall notify the GC of such ruling or order. If the GC determines that no further legal review of or challenge to the ruling or order will be sought, the affected NSA personnel shall comply with the demand or order. If directed by the GC, however, the affected NSA personnel must decline to provide the information. 3 3 See Touhy Ragen, “I must respectfully advise the Court that under instructions given to me by the General Counsel of the National Security Agency, in accordance with Department of Defense Directive 5405.2 and NSA Regulation 10-62, I must respectfully decline to [produce/disclose] that information.” (5) In the event NSA personnel receive a litigation demand for official information originated by another U.S. Government component, the GC shall forward the appropriate portions of the request to the other component. The GC shall notify the requester, court, or other authority of the transfer, unless such notice would itself disclose classified information. (b) Acceptance of service of process. (1) Service on NSA or on NSA personnel in their official capacities. (i) Parties who wish to deliver, instead of sending by registered or certified mail, the copies of the service of process to NSA or to NSA personnel sued or summoned in their official capacities, will comply with the procedures for service of process on NSA premises in paragraph (b) of this section. (ii) Litigants may attempt to serve process upon NSA personnel in their official capacities at their residences or other places. Because NSA personnel are not authorized to accept such service of process, such service is not effective under § 93.1(d). NSA personnel should refuse to accept service. However, NSA personnel may find it difficult to determine whether they are being sued or summoned in their private or official capacity. Therefore, NSA personnel shall notify the OGC as soon as possible if they receive any summons or complaint that appears to relate to actions in connection with their official duties so that the GC can determine the scope of service. (2) Service upon NSA personnel in their individual capacities on NSA premises. (i) When the NSA person works at NSA Headquarters at Fort George G. Meade, Maryland, the process server should first telephone the OGC on (301) 688-6054, and attempt to schedule a time for the NSA person to accept process. If the NSA person's affiliation with NSA is not classified, the NSA attorney will communicate with the NSA person and serve as the contact point for the person and the process server. If the person consents to accept service of process, the NSA attorney will arrange a convenient time for the process server to come to NSA, and will notify the Security Duty Officer of the arrangement. (ii) A process server who arrives at NSA during duty hours without first having contacted the OGC, will be referred to the Visitor Control Center (VCC) at Operations Building 2A. The VCC will contact the OGC. If an NSA attorney is not available, the process server will be referred to the Security Duty Officer, who will act in accordance with Office of Security (M5) procedures approved by the GC. Service of process will not be accepted during non-duty hours unless prior arrangements have been made by the OGC. For purposes of this part, duty hours at NSA Headquarters are 0800 to 1700, Monday through Friday, excluding legal holidays. A process server who arrives at NSA during non-duty hours without having made arrangements through the OGC to do so will be told to call the OGC during duty hours to arrange to serve process. (iii) Upon being notified that a process server is at the VCC, an NSA attorney will review the service of process and determine whether the NSA person is being sued or summoned in his official or individual capacity. (If the person is being sued or summoned in his or her official capacity, the NSA attorney will accept service of process by noting on the return of service form that “service is accepted in official capacity only.”) If the person is being sued or summoned in his or her individual capacity, the NSA attorney will contact that person to see if that person will consent to accept service. (3) Procedures at field activities. (4) No individual will confirm or deny that the person sued or summoned is affiliated with NSA until a NSA attorney or the Field Chief has ascertained that the individual's relationship with NSA is not classified. If the NSA person's association with NSA is classified, service of process will not be accepted. In such a case, the GC must be immediately informed. The GC will then contact the DoJ for guidance. (5) Suits in Foreign Courts. § 93.6 Fees. Consistent with the guidelines in § 93.1(e), NSA may charge reasonable fees to parties seeking, by request or demand, official information not otherwise available under the Freedom of Information Act, 5 U.S.C. 552. Such fees are calculated to reimburse the Government for the expense of providing such information, and may include: (a) The costs of time expended by NSA employees to process and respond to the request or demand; (b) Attorney time for reviewing the request or demand and any information located in response thereto, and for related legal work in connection with the request or demand; and (c) Expenses generated by materials and equipment used to search for, produce, and copy the responsive information. § 93.7 Responsibilities. (a) The General Counsel. (b) The Deputy Director for Plans and Policy (DDPP). (c) Chiefs of Key Components and Field Activities. (d) The Deputy Director for Administration (DDA).