By John V. Berry, Esq., www.berrylegal.com
When trying to uncover problem areas in a security clearance investigation for an applicant, it is recommended that they seek information related to their security investigation. There are 2 statutes in the U.S. Code that are useful for obtaining information related to a security clearance matter. These are: (1) the Privacy Act of 1974, 5 U.S.C. § 552a (Privacy Act) and (2) the Freedom of Information Act (FOIA), 5 U.S.C. § 552.
Privacy Act Requests
Filing an information request in relation to a security clearance investigation through the Privacy Act can be a valuable tool for federal employees and government contractors in attempting to respond to issues that arise in the context of a security clearance review or in later rebutting allegations related to a security clearance action that has arisen.
Privacy Act requests are used to attempt to obtain information considered “personal” to the individual involved, i.e. the security clearance investigation that was conducted on the applicant. Typically, when seeking this type of information, an individual is generally requesting copies of their own security clearance investigation file in order to determine the problem areas identified in the clearance investigation process. A request for these documents is generally sent to the Office of Personnel Management (OPM) or the Defense Manpower Data Center.
FOIA requests, as opposed to Privacy Act requests, focus on information that is not directly personal to the individual requesting the information. This type of information can be sought by the public at large. Federal employees or contractors may find a FOIA request useful to obtain information related to security clearance allegations but which is not directly related to them. For instance, if the information requested is not personal in nature, such as documents containing Agency policies (e.g. manuals, forms, policies, inspection reports) a federal employee or contractor would generally use a FOIA request to attempt to obtain these items.
Generally, for federal employees, one can use the information to respond to allegations contained in a Statement of Reasons (SOR) against them. For current or former employees of government contractors, the information is usually sought following an initial denial of a security clearance in order to obtain information about the derogatory information listed in the prior investigation.
Retaining an attorney familiar with the issues involved in preparing Privacy Act / FOIA requests for security clearance cases is highly recommended. It is very important to do so early in the process in order to respond effectively in security clearance cases. Doing so can often make the difference between obtaining or being denied your security clearance. Our law firm represents federal employees and government contractors in these types of security clearance matters and can be contacted at www.berrylegal.com.