By John V. Berry, www.berrylegal.com
We are often asked by federal employees and government contractors about the use of exhibits in security clearance proceedings. Because each federal agency generally has their own internal security clearance process, the use and availability of exhibits is not standard in all federal agencies. That said, the use of exhibits in security clearance proceedings is generally similar throughout the different federal agencies. The use of exhibits to support a security clearance appeal is highly recommended in most cases.
Reasons to Present Exhibits During Clearance Hearing
A security clearance hearing or personal appearance centers on specific security concerns. The record that has already been established has been reviewed and without any additional information will likely result in a clearance denial. As a result, it is very important to present documents as exhibits which refute or explain the security concerns at issue and for mitigation purposes. For instance, if the security concern at issue involves an arrest, then a copy of full arrest records would potentially be important to obtain and introduce. Or, if mitigation is needed, then it might be important to obtain letters, declarations or affidavits in support of the individual’s character.
There are many reasons why exhibits are important in a security clearance case. The prehearing guidance typically given regarding the use of exhibits before the Defense Office of Hearings and Appeals (DOHA), is as follows:
"The parties have a wide degree of discretion in deciding what order to present the evidence in their respective cases. The Federal Rules of Evidence are used as a guide. The parties should not mark any proposed exhibits. At the hearing, the Administrative Judge will mark the exhibits. Exhibits offered as evidence, but not admitted as such, will be retained by the Administrative Judge. As a general rule, photocopies of documents may be offered in lieu of the original, provided that the copies are legible. In the case of public records or business records, it is not required that the copies being offered be certified copies. However, nothing in this paragraph relieves a party from the responsibility of laying a proper foundation for a document when necessary. It is generally good practice to make sufficient photocopies of each proposed exhibit so that separate complete copies can be offered to the Administrative Judge and the opposing party. Preparation of such additional copies should take place before the scheduled hearing date, because there may not be any photocopying facilities available at the hearing location."
DOHA Prehearing Guidance Memorandum. Most federal agencies have a less formal exhibit admission process than DOHA.
Examples of Exhibits for Security Clearance Hearings
There are many different types of exhibits that can be used in a security clearance hearing or personal appearance which can go towards the merits of a security concern or towards mitigation. Just a few examples of potential exhibits can include:
1. Financial Considerations cases: Documents showing how any debt in question has been resolved, records of assets, salary, improving or good credit and other means showing that the individual is not subject to potential coercion based on finances.
2. Personal Conduct cases: Documents showing that an individual’s behavior has changed, declarations from individuals that demonstrate that the individual has good character, honesty or a good work record.
3. Illegal Drug use cases: Documents showing that the individual no longer uses drugs, medical documentation showing any recovery from addiction issues or underlying reasons for the illegal drug use, statements or declarations from other individuals showing that the individual has changed their lifestyle.
4. Psychological Concern cases: Documents of mental health treatment, records or expert reports on the stability and diagnosis of any mental health concerns.
5. Foreign Influence cases: Statements and records showing an individual’s loyalty to the United States and lack of association to a foreign country.
How Exhibits are Presented
Depending on the type of security clearance proceeding and federal agency involved exhibits are presented differently. For instance, if the individual’s matter is before DOHA or the Department of Energy then normally the exhibits are provided to the government attorney ahead of time and admitted or not admitted during the start of the proceedings by an administrative judge. If a security clearance matter is before a different federal agency, then they generally have a more informal procedure where you either provide exhibits ahead of time or during a personal appearance. Generally, in such proceedings, there are no significant objections to exhibits.
When an individual is engaged in the security clearance hearing or personal appearance process, it is important to have legal representation. Our law firm represents 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.