Government information

(a) Protection of Government Information. Except where disclosure is required by a federal statute, government information is privileged from disclosure if disclosure would be detrimental to the public interest. (b) Scope. “Government information” includes official communication and documents and other information within the Federal Government. This rule does not apply to the identity of an informant (Mil. R. Evid. 507). (c) Definitions. As used in this rule: the custody or control of (1) “In camera hearing” means a session under Article 39(a) from which the public is excluded. (2) “In camera review” means an inspection of documents or other evidence conducted by the military judge alone in chambers and not on the record. (3) “Ex parte” means a discussion between the military judge and either defense counsel or prosecution, without the other party or the public present. This discussion can be on or off the record, depending on the circumstances. The military judge will grant a request for an ex parte discussion or hearing only after finding that such discussion or hearing is necessary to protect government information or other good cause. Prior to granting a request from one party for an ex parte discussion or hearing, the military judge must provide notice to the opposing party on the record. If the ex parte discussion is conducted off the record, the military judge should later state on the record that such ex parte discussion took place and generally summarize the subject matter of the discussion, as appropriate. (d) Who May Claim the Privilege. The privilege may be claimed by the head, or designee, of the executive or military department or government agency concerned. The privilege for records and information of the Inspector General may be claimed by the immediate superior of the inspector general officer responsible for creation of the records or information, the Inspector General, or any other superior authority. A person who may claim the privilege may authorize a witness or trial counsel to claim the privilege on his or her behalf. The authority of a witness or trial counsel to do so is presumed in the absence of evidence to the contrary. (e) Action Prior to Referral of Charges. (1) Prior to referral of charges, upon a showing by the accused that the government information sought is relevant and necessary to an element of the offense or a legally cognizable defense, the convening authority must respond in writing to a request by the accused for government information if the privilege in this rule is claimed for such information. In response to such a request, the convening authority may: (A) delete specified items of government information claimed to be privileged from documents made available to the accused; (B) substitute a portion or summary of the information for such documents; (C) substitute a statement and admitting relevant facts that the government information would tend to prove; (D) provide the document subject to conditions similar to those set forth in subdivision (g) of this rule; or (E) withhold disclosure if actions under subdivisions (e)(1)(A)-(D) cannot be taken without causing identifiable damage to the public interest. (2) Any objection by the accused to withholding of information or to the conditions of disclosure must be raised through a motion for appropriate relief at a pretrial conference. (f) Action After Referral of Charges. (1) Pretrial Conference. At any time after referral of charges, any party may move for a pretrial conference under Article 39(a) to consider matters relating to government information that may arise in connection with the trial. Following such a motion, or when the military judge recognizes the need for such conference, the military judge must promptly hold a pretrial conference under Article 39(a). (2) Ex Parte Permissible. Upon request by either party and with a showing of good cause, the military judge must hold such conference ex parte to the extent necessary to protect government information from disclosure. (3) Matters to be Established at Pretrial Conference. (A) Timing of Subsequent Actions. At the pretrial conference, the military judge must establish the timing of: (i) requests for discovery; (ii) the provision of notice required by subdivision (i) of this rule; and (iii) the initiation of the procedure established by subdivision (j) of this rule. III-29 (B) Other Matters. At the pretrial conference, the military judge may also consider any matter which relates to government information or which may promote a fair and expeditious trial. (4) Convening Authority Notice and Action. If a claim of privilege has been made under this rule with respect to government information that apparently contains evidence that is relevant and necessary to an element of the offense or a legally cognizable defense and is otherwise admissible in evidence in the court- martial proceeding, the matter must be reported to the convening authority. The convening authority may: (A) institute action to obtain the information for use by the military judge in making a determination under subdivision (j); (B) dismiss the charges; (C) dismiss the charges or specifications or both to which the information relates; or (D) take such other action as may be required in the interests of justice. (5) Remedies. If after a reasonable period of time the information is not provided to the military judge in circumstances where proceeding with the case without information would materially prejudice a such substantial right of the accused, the military judge must dismiss the charges or specifications or both to which the information relates. (g) Protective Orders. Upon motion of trial counsel, the military judge must issue an order to protect against the disclosure of any government information that has been disclosed by the United States to any accused in any court-martial proceeding or that has otherwise been provided to, or obtained by, any such accused in any such court-martial proceeding. The terms of any such protective order may include, but are not limited to, provisions: (1) prohibiting the disclosure of the information except as authorized by the military judge; (2) requiring storage of the material in a manner appropriate for the nature of the material to be disclosed; (3) requiring controlled access to the material during normal business hours and at other times upon reasonable notice; (4) requiring the maintenance of logs recording access by persons authorized by the military judge to have access in the government connection with the preparation of the defense; information to III-30 (5) regulating the making and handling of notes government from material containing taken information; or (6) requesting the convening authority to authorize the assignment of government security personnel and the provision of government storage facilities. (h) Discovery and Access by the Accused. (1) Limitations. (A) Government Claim of Privilege. In a court- martial proceeding in which the government seeks to delete, withhold, or otherwise obtain other relief with respect to the discovery of or access to any government information subject to a claim of privilege, trial counsel must submit a declaration invoking the United States’ government information privilege and setting forth the detriment to the public interest that the discovery of or access to such information reasonably could be expected to cause. The declaration must be signed by a knowledgeable United States official as described in subdivision (d) of this rule. (B) Standard for Discovery or Access by the Accused. Upon the submission of a declaration under subdivision (h)(1)(A), the military judge may not authorize to such the discovery of or access government information unless the military judge determines that such government information would be noncumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution’s case, or to sentencing. If the discovery of or access to such governmental information is authorized, it must be addressed in accordance with the requirements of subdivision (h)(2). (2) Alternatives to Full Disclosure. (A) Substitutions and Other Alternatives. The military judge, in assessing the accused’s right to discovery or access government information under subdivision (h), may authorize the government: (i) to delete or withhold specified items of government information; (ii) to substitute a summary for government information; or (iii) to substitute a statement admitting relevant facts that the government information or material would tend to prove, unless the military judge the government determines information itself is necessary to enable the accused to prepare for trial. that disclosure of (B) In Camera Review. The military judge must, upon the request of the prosecution, conduct an in camera review of the prosecution’s motion and any materials submitted in support thereof and must not disclose such information to the accused. (j) Procedure for Use of Government Information Subject to a Claim of Privilege in Trials and Pretrial Proceedings. (C) Action by Military Judge. The military judge must grant the request of trial counsel to substitute a summary or to substitute a statement admitting relevant facts, or to provide other relief in accordance with subdivision (h)(2)(A), if the military judge finds that the summary, statement, or other relief would provide the accused with substantially the same ability to make a defense as would discovery of or access to the specific government information. (i) Disclosure by the Accused. (1) Notification to Trial Counsel and Military Judge. If an accused reasonably expects to disclose, or to cause the disclosure of, government information subject to a claim of privilege in any manner in connection with any trial or pretrial proceeding involving the prosecution of such accused, the accused must, within the time specified by the military judge or, where no time is specified, prior to arraignment of the accused, notify trial counsel and the military judge in writing. (2) Content of Notice. Such notice must include a brief description of the government information. (3) Continuing Duty to Notify. Whenever the accused learns of additional government information the accused reasonably expects to disclose, or to cause the disclosure of, at any such proceeding, the accused must notify trial counsel and the military judge in writing as soon as possible thereafter and must include a brief description of the government information. (4) Limitation on Disclosure by Accused. The accused may not disclose, or cause the disclosure of, any information known or believed to be subject to a claim of privilege in connection with a trial or pretrial proceeding until: (A) notice has been given under subdivision (i); and (B) the government has been afforded a reasonable opportunity to seek a determination pursuant to the procedure set forth in subdivision (j). (5) Failure to Comply. If the accused fails to comply with the requirements of subdivision (i), the military judge: (A) may preclude disclosure of any government information not made the subject of notification; and (B) may prohibit the examination by the accused of any witness with respect to any such information. (1) Hearing on Use of Government Information. (A) Motion for Hearing. Within the time specified by the military judge for the filing of a motion under this rule, either party may move for an in camera hearing concerning the use at any proceeding of any government information that may be subject to a claim of privilege. Upon a request by either party, the military judge must conduct such a hearing and must rule prior to conducting any further proceedings. (B) Request for In Camera Hearing. Any hearing held pursuant to subdivision (j) must be held in camera if a knowledgeable United States official described in subdivision (d) of this rule submits to the military judge a declaration that disclosure of the information reasonably could be expected to cause identifiable damage to the public interest. (C) Notice to Accused. Subject to subdivision (j)(2) below, the prosecution must disclose government information claimed to be privileged under this rule for the limited purpose of litigating, in camera, the admissibility of the information at trial. The military judge must enter an appropriate protective order to the accused and all other appropriate trial participants concerning the disclosure of the information according to subdivision (g), above. The accused may not disclose any information provided under subdivision (j) unless, and until, such information has been admitted into evidence by the military judge. In the in camera hearing, both parties may have the opportunity to brief and argue the admissibility of the government information at trial. (D) Standard for Disclosure. Government information is subject to disclosure at the court-martial proceeding under subdivision (j) if the party making the for request demonstrates a specific need information containing evidence that is relevant to the guilt or innocence or to punishment of the accused, and court-martial is otherwise proceeding. admissible the in (E) Written Findings. As to each item of government information, the military judge must set forth in writing the basis for the determination. (2) Alternatives to Full Disclosure. (A) Motion by determination by the Prosecution. Upon any judge authorizing the military III-31 disclosure of specific government information under the procedures established by subdivision (j), the prosecution may move that, in lieu of the disclosure of such information, the military judge order: (i) the substitution for such government information of a statement admitting relevant facts that the specific government information would tend to prove; (ii) the substitution for such government information of a summary of the specific government information; or (iii) any other procedure or redaction limiting the disclosure of specific government information. (B) Hearing. The military judge must hold a hearing on any motion under subdivision (j). At the request of trial counsel, the military judge will conduct an in camera hearing. (C) Standard for Use of Alternatives. The military judge must grant such a motion of trial counsel if the military judge finds that the statement, summary, or other procedure or redaction will provide the accused with substantially the same ability to make his or her defense as would disclosure of the specific government information. (3) Sealing of Records of In Camera Hearings. If at the close of an in camera hearing under subdivision (j) (or any portion of a hearing under subdivision (j) that is held in camera), the military judge determines that the government information at issue may not be disclosed or elicited at the trial or pretrial proceeding, the record of such in camera hearing must be sealed in accordance with R.C.M. 1113 and preserved for use in the event of an appeal. The accused may seek reconsideration of the military judge’s determination prior to or during trial. (4) Remedies. If (A) the military judge determines that alternatives to full disclosure may not be used and the prosecution continues to object to disclosure of the information, the military judge must issue any order that the interests of justice require, including but not limited to, an order: (i) striking or precluding all or part of the testimony of a witness; (ii) declaring a mistrial; (iii) finding against the government on any issue as to which the evidence is relevant and necessary to the defense; III-32 (iv) dismissing the charges, with or without prejudice; or (v) dismissing the charges or specifications or both to which the information relates. (B) The government may avoid the sanction for nondisclosure by permitting the accused to disclose the information at the pertinent court-martial proceeding. (5) Disclosure of Rebuttal Information. Whenever the military that government information may be disclosed in connection with a trial or pretrial proceeding, the military judge must, unless the interests of fairness do not so require, order the prosecution the information it expects to use to rebut the government information. the accused with judge determines to provide (A) Continuing Duty. The military judge may place the prosecution under a continuing duty to disclose such rebuttal information. (B) Sanction for Failure to Comply. If the prosecution fails to comply with its obligation under subdivision (j), the military judge may make such ruling as the interests of justice require, to include: (i) excluding any evidence not made the subject of a required disclosure; and (ii) prohibiting the examination by the prosecution of any witness with respect to such information. (k) Appeals of Orders and Rulings. In a court-martial in which a punitive discharge may be adjudged, the government may appeal an order or ruling of the military judge that terminates the proceedings with respect to a charge or specification, directs the disclosure of government information, or imposes sanctions government nondisclosure information. The government may also appeal an order or ruling in which the military judge refuses to issue a protective order sought by the United States to prevent the disclosure of government information, or to enforce such an order previously issued by appropriate authority. The government may not appeal an order or ruling that is, or amounts to, a finding of not guilty with respect to the charge or specification. (l) Information Subject to a Claim of Privilege. into Evidence of Government Introduction for of in order (1) Precautions. The military judge in a trial by court-martial, to prevent unnecessary disclosure of government information after there has been a claim of privilege under this rule, may order admission into evidence of only part of a writing, recording, or photograph or admit into evidence the whole writing, recording, or photograph with excision of some or all of the government information contained therein, unless the whole ought in fairness to be considered. (2) Government Information Kept Under Seal. The military judge must allow government information offered or accepted into evidence to remain under seal during the trial, even if such evidence is disclosed in the court-martial proceeding, and may, upon motion by the prosecution, seal exhibits containing government information in accordance with R.C.M. 1113 for any period after trial as necessary to prevent a disclosure of government information when a knowledgeable United States official described in subdivision (d) submits to the military judge a declaration setting forth the detriment to the public interest that the disclosure of such information reasonably could be expected to cause. (3) Testimony. (A) Objection by Trial Counsel. During examination of a witness, trial counsel may object to any question or line of inquiry that may require the witness information not previously found admissible if such information has been or is reasonably likely to be the subject of a claim of privilege under this rule. to disclose government (B) Action by Military Judge. Following such an objection, the military judge must take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any government information. Such action may include requiring trial counsel to provide the military judge with a proffer of the witness’ response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information sought to be elicited by the accused. Upon request, the military judge may accept an ex parte proffer by trial counsel to the extent necessary to protect government information from disclosure. (m) Record of Trial. If under this rule any information is reviewed in camera by the military judge and withheld from the accused, the accused objects to such withholding, and the trial continues to an adjudication of guilt of the accused, the entire unaltered text of the relevant documents as well as any motions and any materials submitted in support thereof must be sealed in accordance with R.C.M. 701(g)(2) or 1113 and attached to the record of trial as an appellate exhibit. Such material will be made available to reviewing and appellate authorities in accordance with R.C.M. 1113. identity of an