By John V. Berry, www.berrylegal.com
We are often asked by federal employees and government contractors about their duty to self-report security concerns when holding a security clearance. Here are some things to consider when evaluating when and what to report. In general, federal employees and government contractors holding a security clearance have a duty to self-report serious security concerns in a timely manner. This duty to self-report tends to be pretty broad.
The Duty to Report Security Concerns
Not reporting a security concerns can lead to a loss of a security clearance. As provided in guidance from an administrative judge at the Defense Office of Hearings and Appeals (DOHA), in ISCR Case No 01-26137 (2001), the concept of self-reporting is explained:
“[I]t is the responsibility of security clearance holders to report events which negatively affect the status of the security clearance holder or the facility. As a general rule, any information under the National Industrial Program Operating Manual (NISPOM) that reflects adversely on the integrity or character of a security clearance holder, should be reported to security personnel to avoid compromising situations that make the security clearance holder vulnerable to coercion, exploitation, or duress.”
Id. at 1 (denying security clearance where clearance holder failed to self-report an arrest for driving under the influence until a year after the incident). Furthermore, Department of Defense (DoD) Directive 5200.2-R, C9.1.4 (page 81) further spells out the responsibility of individuals holding security clearances to self-report security concerns. DoD 5200.2-R, C9.1.4 provides that “individuals having access to classified information must report promptly to their security office . . . Any information of the type referred to in paragraph C2.2.1. or Appendix 8). Appendix 8 contains the Adjudicative Guidelines. The Adjudicative Guidelines are just the potential security concerns that can trigger a duty to report (e.g. foreign influence, psychological conditions, financial considerations, personal conduct). In sum, the duty to report is pretty broad.
What is a Security Concern?
A security concern is an incident or potential incident that occurs which bears on one of these Adjudicative Guidelines for holding a security clearance. These apply to both government contractors and federal employees. Four (of many possible) examples follow of security concerns that should potentially trigger the duty to report.
Ex. 1 - A clearance holder is arrested for theft by the police. Criminal conduct falls under the Adjudicative Guidelines. Once the individual is arrested, he or she should report the incident as soon as possible to his or her security officer or supervisor. Alleged criminal conduct should be reported as early as possible. One common mistake is to wait until the trial occurs to self-report.
Ex. 2 - A clearance holder files for bankruptcy. Because filing for bankruptcy bears on financial considerations under the Adjudicative Guidelines, the individual should report the filing as soon as possible to his or her security officer or supervisor.
Ex. 3 - A clearance holder marries a foreign citizen. Because marrying a foreign citizen can bear on foreign influence and many other types of issues in the Adjudicative Guidelines, he or she should report the marriage as soon as possible to his or her security officer of supervisor.
Ex. 4 - A clearance holder has become addicted to pain medications. He or she has subsequently checked into a treatment facility for this addiction. Because this bears on psychological fitness in the Adjudicative Guidelines, he or she should report the medical concern to his or her security officer or supervisor.
Each federal agency has similar but slightly different rules for self-reporting security concerns. Some federal agencies do not provide specific guidance. When in doubt it is usually advised that the federal employee or government contractor report the security concern given the significant risks of losing their security clearance for not doing so. We have seen a number of cases where individuals have been proposed for the loss of their security clearance for not promptly reporting security concerns.
When to Report a Security Concern?
When a federal employee or government contractor who holds a security clearance determines that a security concern requires self-reporting, it is important to do so as soon as possible. The typical procedure for doing so is to notify one’s supervisor and/or their security manager of the security concern. Even if details of a security concern are not yet fully complete, i.e. an arrest for possession of drugs, assault, DUI, etc. has occurred, but there has not yet been a trial, it is critical to report even the allegation as soon as possible. Waiting until a trial has occurred to see if guilt is established, prior to reporting, can still be viewed as a security violation for delayed reporting.
Additionally, the fact that a clearance holder has self-reported a security concern promptly can later often be used as a mitigating factor should the agency pursue a proposal to revoke one's security clearance.
What to Report?
Each type of security concern is different and there may be concerns over what to report. The individual might also feel embarrassed to self-report. If a federal employee or government contractor have questions about what should be reported, they should seek counsel for legal advice. These employees may also speak to their security manager or supervisor. For federal employees we often find that many supervisors are unaware of how security concerns should be reported and have to seek advice from within their agency (usually through security or human resources). Enough information should be reported by the employee so that the security concern is fully explained. For example, if an arrest has occurred, it may be important to provide a copy of the arrest, citation or other documentation. The agency will then expect the individual to provide updates as the matter is resolved.
Further, the employee that self-reports a security concern should be as honest and straightforward as possible in providing the information. Reporting a security concern inaccurately can lead to an allegation of dishonest conduct which can cause even more significant security concerns than the failure to self-report.
When an individual is seeking advice about reporting a potential security concern to their security officer or manager, it is important to obtain legal advice. Doing so can provide needed guidance that can be very helpful at the early stages of a security clearance inquiry. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Our Facebook page is located at https://www.facebook.com/BerryBerryPllc.