SUBJECT:  Legal demands for records and/or information

1. Purpose.  This memorandum issues instructions for processing legal demands for records and/or information.  These instructions do NOT apply to a request for certified or authenticated copies received from a routine use of the record, the veteran, or a third party who has the written authorization of the veteran (e.g., a record copy service or a veteran's representative including an attorney).

2. Cancellation.  NPRC 1864.107C is canceled.

3. Reason for revision.  This memorandum is revised to:

     a. provide instructions on when to search the Patient Retrieval System (PRS);

     b. provide instructions on how to process legal demands for medical records that are loaned/sent or retired to the Department of Veterans Affairs; and

     c.  update forms.

4. Applicability.  This memorandum is applicable to all reference branch correspondence personnel and Records Reconstruction Branch correspondence personnel.

5. Definitions.

     a. Subpoena Duces Tecum.  This is a REQUEST issued by a court.  It may be directed to a person requiring his/her attendance at a particular time and place to testify.  It also requires that he/she bring with him/her certain papers or records in his/her possession or under his/her control which may tend to clarify the subject matter of the trial or hearing.  In February 1981, the Office of Management and Budget reaffirmed its earlier guidance that a subpoena duces tecum signed by a clerk of the court did not constitute a proper court order under the provisions of subsection (b)(11) of the Privacy Act, 5 U.S.C. 552a.  A subpoena duces tecum signed by a judge becomes a court order as defined in subpar. 5b below.

     b. Court order.  This term refers to a DEMAND from a judge of a court for records, or authenticated copies thereof, or for the testimony of a representative of NPRC in deposition form, which may tend to clarify the subject matter of the trial or hearing.

     c. Deposition.  A testimony of a witness taken under oath, but out of court, and reduced to writing, to be used in trying some question of fact in a Court of Justice.

     d. Criminal action.  A prosecution for a crime brought in the name of a government entity, and which is based upon the assumption that the injury done is to the public generally, as opposed to a private person.  An injury to a private person is compensated by a civil suit for damages even when the injury involves a crime.

     e. Civil action.  Every action presented for trial other than criminal.

     f. Adverse attorney.  In a civil action, the attorney NOT representing the subject of the record requested.

6. Instructions.  The instructions for handling the various types of legal demands under different situations are found in the attachment.

7. Forms.

 AF Form 7, Airman's Military Record
 AF Form 11, Officer's Military Record
 DA Form 20, Enlisted Qualification Record
 NA Form 13017, Reply to Medical Records/X-Ray Requests
 NA Form 13021, Admissibility in Evidence of Copies of Records Authenticated
    by the National Personnel Records Center
 NA Form 13027, Court Order Requirements
 NA Form 13040-A, Authentication Certificate (CPR)
 NA Form 13040-B, Authentication Certificate (MPR)
 NA Form 13122, Reply to Subpoena/Court Order
 VA Form 07-3101, Request for Information
 

DAVID L. PETREE
Director

1. Request sources.  Legal demands, which are court orders/subpoenas signed by a judge, come from the various types of courts of the judicial branch of government at all levels in the United States, both Federal and non-Federal.  A subpoena signed by an attorney or the clerk of the court is not a valid legal demand.

NOTE:  We frequently receive requests, often via subpoena, for authenticated copies of records from various routine users such as U. S. Attorneys, Office of the Judge Advocate General, Federal Bureau of Investigation, U. S. Army Criminal Investigative Division, U. S. Air Force Office of Special Investigations, etc.  These requesters do not have to submit court orders for authenticated copies but can receive them upon written request.  For case processing instructions, see the most current version of NPRC1865.16, Release and access guide for military personnel and related records at NPRC.  Responses to requests from the sources cited above are not the subject of this NPRC memorandum.

A subpoena from a state workmen's compensation office is not a valid legal demand. Moreover, an administrative law judge of a workers compensation office is NOT a judge of a court of competent jurisdiction.  NPRC provides certified copies of documents or information to state workmen's compensation offices as a routine use of the records.  The documents or information can be released  to that office only upon receipt of a subpoena signed by a Magistrate or Administrative Law Judge.  The records may only be released to the Magistrate or Administrative Law Judge.  Be aware that the titles of  hearings examiners for state workmen's compensation agencies vary from state to state.

2. Value of records in court proceedings.  Courts of law submit subpoenas signed by a judge or court orders for records because of the value of these records in court proceedings.  This value is indicated in Section 1733, Title 28, U. S. Code (1995 edition):
 

NOTE:  This paragraph is informational only and is not to be cited as a reference in any response to a request.

3. Authority for NPRC to respond to legal demands.  See Appendix A.

     a. Federal courts.  The basic authority allowing a response by NPRC to court orders issued by courts is contained in Section 1254.8(a), Title 36, Code of Federal Regulations.  This authority, however, is subject to restrictions imposed by the respective armed force or agency whose records are involved, as brought out in this memorandum.  See also Section 1254.32.

     b. Non-Federal courts.  State and lower courts do not have the authority to issue legal demands affecting or interfering with the conduct of Federal activities.  However, legal demands made on NPRC by or through non-Federal courts should be handled in a manner similar to requests from Federal courts; photocopies of the records may be produced if not restricted by law or by the respective armed force or agency whose records are involved.

     c. Authority for NPRC to authenticate copies of records.  On occasion, attorneys telephone concerning NPRC's authority to maintain records or to authenticate photocopies of records.  Or, the attorney may want to address/send the court order to a specific branch chief or archives technician.  Appendix A outlines four general subjects which attorneys may ask about and the authority NPRC may cite in responding to those questions.  Refer questions of a more complicated nature to the assistant branch chief or branch chief.

4. Requirements for proper court orders (legal demands).

     a. General.  Exact requirements for an acceptable legal demand cannot be precisely outlined, as the procedures of the different courts vary.  An overall appraisal of each legal demand must be made to determine sufficiency.  Each demand must be examined considering the following factors as well as the special conditions/restrictions in par. 6 before honoring any request.

     b. Duplicate copies.  Either the original or duplicate copy of the legal demand is acceptable.

     c. Nature/purpose.  Requests should state the nature of the legal action and the parties involved.  Those from United States courts should indicate whether the United States Government is a party to the litigation.  This will often eliminate the need for follow-up telephone calls for more information.

     d. Contents/wording.  The requirements for the proper contents/wording of a legal demand are outlined on NA Form 13027, Court Order Requirements.  (See fig. 1) Be sure to note that it is not always necessary to send the authenticated copies of the records to the clerk of the court.  With few exceptions (see subpar. 6b(2) and 9d below), if the court order names another recipient and gives the appropriate address, the photocopies are sent to that designated party.

     e. Signature.  Court Orders must be signed by the judge of the court.  Subpoenas, including those from a grand jury, must be signed by a judge to be honored as a legal demand.  Any of the following are acceptable:

(1) An original manually signed by a judge,

(2) A photocopy or reproduction of the original manually signed by a judge, or

(3) A photocopy or reproduction of the original which has the stamped, printed signature of  the judge.

If you cannot determine if the signature is that of the issuing judge, clerk of the court, or an  attorney, the archives technician telephones the attorney or court for verification of the signature.

NOTE:  If a legal demand does not meet any one of the criteria outlined above, it should be returned by using the NA Form 13027.

     f. Court seal.  Legal demands need not necessarily bear the court seal.  However, the court seal on a legal demand may compensate for some other suspected deficiency in determining the acceptability of the demand.

     g. Age of legal demands.  The date a legal demand was issued should not normally be a determining factor of its acceptability unless it specifies a date of trial or date required that is well past.  If there is a question concerning the age, a telephone call to the attorney or court involved may be necessary for verification purposes.

     h. Requests for information as to how a legal demand should be prepared.  These should be answered primarily by furnishing a copy of NA Form 13027.  Read the paragraphs to attorneys who telephone NPRC seeking information on what criteria are necessary to submit a valid court order to this Center.

5. Action on legal demands if requirements are not met.  Upon receipt of a legal demand which is not considered sufficient, return the demand with a properly annotated NA Form 13027.  A court order should meet the criteria outlined in the first two paragraphs on the NA Form 13027 or it should not be honored.

6. Action if requirements are met.

     a. Legal demands involving litigation in which the United States is a party.  Legal demands which involve the United States government can be identified by noting that either the Plaintiff or the Defendant listed is the United States government, a specific agency of the United States government, or possibly the head of a United States government agency.  When a legal demand listing the United States as a party is received, forward the legal demand and pertinent records to the appropriate office of the armed force, employing agency, or legal custodian for processing.  If the National Archives and Records Administration is a party to the litigation, coordinate with NRPC/NRPM in requesting advice through the NARA General Counsel (GC).

     b. Legal demands involving litigation in which the United States is not a party.

(1) Conditions for forwarding to the armed force or agency concerned.  If any of the following conditions exist, forward the legal demand and pertinent records to the appropriate office of the armed force or agency concerned.

     (a) Records concern anyone prominent in the news.

     (b) A controversial issue is involved.

     (c) Some information is available that raises doubt as to the materiality, relevance, or usefulness of the requested information in the litigation.

     (d) Records concern a person with some type of current military status.

NOTE FOR NRPMN ONLY:  If case involves Navy medical records only, case need not be forwarded if otherwise proper for action by NPRC.

(2) Security classified records.  On rare occasions, a record or documents in the record needed to respond to a legal demand may be security classified.  The armed force or agency whose records are involved are to be informed of the request through the branch chief.

(3) Conditions in (1) and (2), above, not present.  If none of the foregoing conditions exist, take action as indicated below:

     (a) NPRC response to routine court orders.  Respond to court orders (or a subpoena signed by a judge) by furnishing authenticated copies of records under authentication certificate (see figs. 2 and 3) transmitted by letter or NA Form 13122, Reply to Subpoena/Court Order, (see fig. 4) to the clerk of the court.  If a formal letter is used as a transmittal, the language used on NA Form 13122 is to be followed.  If the court order does not specify to whom the records are to be sent, the records are to be sent to the clerk of the court.  Records may be released to a recipient other than the court if:

(i) The stipulation (signed by the subject of the record or a representative of the person whose records are involved) names another recipient; or,

(ii) The order of the court names another recipient.

Also attach a copy of NA Form 13021, Admissibility in Evidence of Copies of Records Authenticated by the National Personnel Records Center.  (See fig. 5)  See pars. 9 and 10 for further details.

NOTE:  When NPRC responds to a subpoena or court order (civil case) issued at the request of the adverse attorney, a carbon copy of the transmittal form/letter must be sent to the last known address of the individual whose records were released, or to his/her attorney.  It is not necessary to seek a more current address than that provided in the record if one is not provided in the request.  If the subject of the records involved is known to be deceased, no notification to the next-of-kin or other party is required.

(b) NPRC response to a FEDERAL court order or subpoena signed by a judge requesting a personal appearance in court.  When a subpoena or court order issued by a Federal court (and signed by a judge) requesting a representative of NPRC to appear in court with records is SERVED ON an NPRC representative, or upon learning that such a demand is forthcoming, attempt to obtain agreement with the attorney or court representative concerned to satisfy the request by furnishing authenticated copies of the records.  Explain that such copies are admissible in evidence in accordance with Section 2116(b), Title 44, U.S.C.  If this is agreed to, process in the same manner as a court order (see subpar. 6b(3)(a), above).  If agreement cannot be reached to furnish photocopies of the records, coordinate with NRPC/NRPM in requesting advice through the NARA General Counsel (NGC).

(c) NPRC response to a STATE court order or subpoena signed by a judge requesting a personal appearance in court.  When a subpoena duces tecum issued by a State or lower court requesting a representative of NPRC to appear in court with records is SERVED ON an NPRC representative, retain the demand and furnish authenticated copies, following instructions in subpar. 6b(3)(a), above.  If this action is contested, explain the action, by letter or telephone call, using subpar. 3b of the attachment as a basis.  If an actual complaint regarding the action is received, coordinate with NRPC/NRPM in seeking advice through the NARA General Counsel (NGC).

(d) Depositions.  If the U. S. Government has no interest in the litigation involved, legal demands for NPRC representatives to testify in deposition form at this Center (or any other U. S. Government property) are not honored.  Records or copies are not taken to any other location for use by NPRC personnel in testifying in deposition form.  If NPRC's response is protested, or if the deposition is requested for use in litigation in which the U. S. Government has an interest, coordinate with NRPC/NRPM in requesting advice from the NARA General Counsel (NGC).

     a. Certifying information.  There are instances when it is better to provide a brief, authenticated statement of record facts than it is to furnish copies of the records under seal.  In some cases the legal demand calls for such a statement.  If the policies outlined in this part permit release, furnish a certificate of the desired information on formal letterhead (see fig. 6).  Forward certificate to the court, using either a NA Form 13122, or a letter of transmittal.

     b. Attesting to absence of information (excluding NRPMR).  When a legal demand calls for information which, if it existed, should be in the files at NPRC but which cannot be found, furnish a certificate attesting to the fact that, after diligent search, no record or entry of the nature specified is found to exist in the records at NPRC.

NOTE:  NRPCR personnel should also include a statement notifying the lawyer or court to contact the current or last employing office of the individual concerned.  Use the completed sample (see fig. 7) as a guide.  Forward certificate to the court, using either an NA Form 13122, or a formal letter.

     c. Attesting to absence of information (NRPMR).  If a legal demand calls for information which, if it existed, would have been on the sixth floor prior to July 12, 1973, furnish a certificate indicating that extensive efforts to locate the record have been unsuccessful.  Use the samples (figs. 8 and 9) as guides.  Forward certificate to the court using NA Form 13122.

     d. Combined certificate of record facts and absence of other record facts.  There are instances when it is necessary to both certify given record facts and at the same time attest to the absence of other data.  When this happens, combine the two certificates on formal letterhead stationery.  Example:
 

8. Certifying copies of records AND attesting to the record facts or absence thereof.  There are cases which require both a certification of copies of records and an attestation to record facts contained in other records (or absence of such record facts).  Prepare authentication certificate for the former (see figs. 2 and 3) and a certificate on formal letterhead stationery for the latter (see figs. 6 and 7).

9. Selecting and arranging records to be photocopied and furnished.

     a. Information not releasable because of subject matter.  Records of a discharge review board are excluded when photocopies are made or information is furnished from a military record.  If proceedings are specifically requested, forward the legal demand and pertinent records to the  appropriate office of the armed force or agency concerned.  If questions arise as to whether a particular document or paper (e.g., pay records, prison records) is considered to be a part of the personnel or medical record, consult the "categories of records in the system" description in the appropriate system of records.  These may be obtained by contacting the management analyst in the Office of the Director (NRP) who serves as the liaison to the NARA General Counsel.

     b. Selecting and assembling records comprising a complete medical history of an individual.  When a complete medical history of an individual is sought and the subject of the court order is a veteran, the record is reviewed for any medical records and for any indication that the service member was a patient in a military hospital.  Documents in the record which can reveal patient status include clinical cover sheets in the outpatient medical records and assignment history extracts such as the DA Form 20, Enlisted Qualification Record; AF Form 7, Airman's Military Record; AF Form 11, Officer's Military Record, and pages 5, 12, or 13 in Navy/Marine Corps records.  If NPRC has responded to any requests from the Department of Veterans Affairs, the request/response form, VA Form 07-3101, Request for Information, may also be a source of the patient status of the veteran.  If the veteran served in the military subsequent to 1964, use the on-line computer to search the Patient Retrieval System (PRS) in addition to reviewing the record.  The PRS is checked to determine if there are entries in the system which would indicate that the individual had been hospitalized.  If the PRS inquiry results in a screen display of an entry or entries, a clinical record may exist in NPRC holdings and a search for that clinical record should be initiated.

If the subject of the court order is a dependent or a retiree, the PRS must be probed to determine if there are any entries to indicate that a clinical record may be in the NPRC holdings.  The outpatient treatment records of a dependent or the post retirement outpatient treatment records of a military retiree can be searched only if the requester provides the last date and place of treatment.  The PRS is of no value in searching for these outpatient records.

Please see the latest version of NPRC 1865.103, par. 1-9, for procedures used to request searches for clinical records.

     c. Selecting and assembling medical records.

(1) Separate records to be photocopied, temporarily setting aside duplicates and such nonmedical papers as letters, orders, etc.

(2) Do not attempt to assemble the selected records in chronological order.

(3) Replace the records assembled for copying and the miscellaneous material temporarily set aside in (1), above, in the records folder/jacket.

     e. Mental health records.  Mental health records may be released as directed by the court.  Be sure to alert the court to these records by checking the appropriate block of the NA Form 13122.

     f. Selecting and assembling records, other than complete sets of medical records.  Remove duplicates, routing slips, notes, etc., and arrange papers to be copied in no particular order.  Assemble the copies for authentication.  Replace the originals in the record in same order as the photocopies.

10. Forwarding completed replies for authentication and dispatch.  Route completed reply to appropriate official for signature.  See latest revision of NPRC 1804.1, Signature authority, Center correspondence, for proper signature authority.  After authentication, dispatch to NRPMO-M or NRPCO-M, as appropriate.

11. Action when health records are not at NPRC.

NOTE: Even if conditions described in paragraphs 11a or 11b below exist, a probe of the Patient Retrieval System must still be made and any appropriate searches are to be conducted.

    a. Pertinent medical records loaned to Department of Veterans Affairs (VA).  If a VA 3101 or other document in file indicates that the health record was loaned/sent to the VA, inform the requester and provide the VA toll free number and Claim Number for assistance in locating the requested records.   If a part of the record is on loan to the VA, certify the records on file at this Center.  DO NOT check BIRLS for the claim folder location, check mark the appropriate block on the NA Form 13122 to inform the court that the records have been loaned to the VA; provide the VA Claim Number and VA toll free number.

     b. Pertinent medical records retired to Department of Veterans Affairs (VA), Records Management Center (RMC).  The military service departments, except the Coast Guard now retire the military health record to the RMC.  (See the latest revision of NPRC1865.103, Requests involving health records of former military members, par. 1-13.)  Use the NA Form 13122, check mark the appropriate block to inform the court that the requested record was not retired to this Center, and provide the VA Claim Number and VA toll free number.

     c. Records divided between Page and Winnebago.  When it is discovered that a portion of the records are at Page and a portion at Winnebago, the technician at the building who initially receives the request should prepare the record to be photocopied and authenticated.  The technician's supervisor or section chief should then telephone the other building to request photocopies of the remaining records.  The supervisor or section chief who places the telephone call should remind the supervisor or section chief who receives the call that the request is first priority.  Inform the court or attorney concerned, as appropriate, of the delay.  The case is suspended and when the records arrive from the other building, one certification and response, signed by the Director, is made.

NOTE:  When x-rays located at Winnebago are specifically requested as part of a court order
received at Page, a copy of the court order is forwarded to Winnebago for separate reply.  This is done because x-rays are not duplicated, authenticated, or normally forwarded to the court.

     d. Records divided between NPRC and another depository (except the Department of Veterans Affairs, see subpars 11a and 11b above).  Reply to the part pertaining to NPRC and refer the request to the other depository for completion of action.  Inform the court or the attorney concerned, as appropriate, of this referral.  Use the telephone if urgent.

     e. Misaddressed legal demands.  Contact the court or attorney and inform them that records are not located at NPRC.  Ask if the court order should be forwarded to the proper custodian or sent back to originator.

12. Fees.  Fees may be charged for authenticated copies of records provided in response to subpoenas and court orders issued at the request of an adverse attorney.  Records copy services are not charged unless the request for records is from the adverse attorney.  This is true, however, only in civil actions in which the United States is not a party.  See the latest revisions of NPRC 1852.1 and NPRC 1852.2 for information and instructions regarding applicable fees for litigation cases.

13. Loan of x-rays to the court.  X-rays may be loaned to a physician appointed by the court upon/after receipt of a proper court order.  The x-ray should not be sent to the clerk of the court.  In these cases, the following statement may be added to the NA Form 13017, Reply to Medical Records/X-Ray Requests:

 

X-rays cannot be loaned to the court.  However, they may be loaned to a physician appointed by the court, who will testify to the reading of the x-rays.

     a. Negative BIRLS and VA index.  If the computer index does not indicate that a record or auxiliary record source is available, the BIRLS index and VA tapes are checked.  If the latter sources also prove to be negative, telephone the attorney and offer to send a certificate attesting to the loss of the record.

     b. Auxiliary record(s) at NPRC.  If the computer index does not indicate the presence of a military record, but does indicate that an auxiliary record is present at NPRC, assemble the available auxiliary record information prior to telephoning the attorney.  To avoid misunderstandings, the attorney should be informed that verification of service and character of separation is all that can be furnished.

     c. Requested records recovered after the fire.  If the records necessary to answer the request were recovered after the fire, explain the condition of the records.  This courtesy helps to avoid any misunderstandings when the records are received in court.  If documents recovered from the fire provide proof that the medical records were loaned to the VA, furnish the VA Claims Number and suggest the requester call the VA toll free number for assistance in locating the claims folder.  Include a statement in the cover letter indicating that the records were in the area which suffered the most damage in the fire here on July 12, 1973.

     d. Medical records not on file.  If the court order seeks medical records and if BIRLS is positive, furnish the VA Claims Number and suggest the requester contact the VA toll free number for assistance in locating the claims folder to see if medical records may have been loaned to the VA prior to the fire.

15. Personnel identifiers in authenticated copies of military records.  The Privacy Act has established that pursuant to an order of a court of competent jurisdiction, a record may be disclosed without the written consent of the individual involved.  In addition, it requires that the agency make reasonable efforts to serve notice on an individual when any record on that individual is made available through legal process.  However, NPRC employees should make no deletions of personal identifiers prior to disclosing records in response to a court of competent jurisdiction.  NPRC is not obligated to notify individuals (other than the subject of the record) that information has been made available through compulsory legal process.  WHEN A RECORD IS FOUND TO CONTAIN NAMES AND PERSONAL IDENTIFIERS OTHER THAN THOSE OF THE SUBJECT OF THE RECORD, NPRC employees should include the following statement in the transmittal letter to the court, or check the appropriate block on NA Form 13122:
 

1. If challenged regarding the legal custody of records stored at NPRC, the following references may be of help:

  36 CFR 1252.2
 

 36 CFR 1254.32  FRC records (see the following paragraph)
 

 36 CFR 1252.2  Federal records centers
 

2. If challenged regarding the authority for NPRC to honor legal demands:

NPRC is authorized to honor legal demands pertaining to records on file at this Center if no restrictions have been imposed by the agency that transferred the records (to this Center).  If restrictions have been imposed by the transferring agency, the authority issuing the legal demand is so notified and asked to take up the matter with the transferring agency.  Reference 36 CFR Section 1254.8 here quoted in part:
 
 

3. Only the "Director" may be served with a court order:

The "Director" is the only person at NPRC who may be served a court order.  Reference 36 CFR 1254.8(b), here quoted in part:
 

36 CFR 1252.2 "Director" means the head of a Presidential library, the head of an office of the National Archives division, branch, or unit responsible for servicing records, or the head of a Federal center.

IMPORTANT

NOTE:  For employees at 111 Winnebago, the court order may be sent to the Director, NPRC, NARA, 111 Winnebago, as outlined on NA Form 13027, Court Order Requirements.

4. If challenged regarding NPRC authority to authenticate copies of records and admissibility in evidence of copies so authenticated, the following paragraph will be helpful:

The official seal of the National Archives of the United States is affixed to these certificates.  The admissibility in evidence of certificates affixed with this seal and certified by the Archivist is established by 44 U.S.C. 2116(b), here quoted:
 

NOTE:  NPRC uses the National Archives and Records Administration, 1985, Seal to authenticate copies of records.