Security Clearance Law Blog

Reporting Criminal Violations in the Security Clearance Process

By John V. Berry, Esq., www.berrylegal.com 

There are times when an individual is potentially facing security clearance issues related to criminal law violations.  There was a time when the reporting of potential criminal violations may have put a security clearance at risk, but generally did not expose an individual to potential criminal liability.  Absent some specific exceptions, federal agencies did not seem to significantly report such issues to law enforcement.  

Today, however, it seems that federal agencies are giving more consideration to disclosing criminal violations to law enforcement authroities when they come across these issues in the security clearance process.  When such a situation arises, it is important to have the guidance of counsel as early in the security clearance process as possible to determine the best course of action.  Typically, criminal law disclosures occurr during the interview process or during a polygraph examination.  

More Common Criminal Disclosures 

Some of the more common situations that we have come across with respect to the reporting of criminal issues involve individuals reporting prior drug use, minor theft (e.g. shoplifting) and other relatively minor criminal violations.  These more common situations are generally not reported to law enforcement authorities by security clearance authorities.  

However, reporting serious crimes during a security clearance interview and/or polygraph examination has now become a significant issue which requires additional though prior to responding.  Serious crimes that may be reported can potentially include crimes or abuse involving children, major theft and the distribution of narcotics.

Subtle Changes in How Criminal Issues are Reported

There have been some subtle changes in how federal agencies deal with criminal issues disclosed during the security clearance process.  In the past, some intelligence agencies took the position that there was no legal obligation to report most federal criminal law violations to the Department of Justice.  However, these agencies have now also taken the view that nothing prevents them from disclosing such information to law enforcement either.  In other words, this leaves a fair amount of discretion to these agencies in what they decide to report.  

Intelligence agencies have been focused mostly on the reporting of federal criminal violations, as opposed to those involving state criminal law violations.  Some federal agencies have implemented new policies to determine whether state law violations should be reported.  One agency has indicated that they will report state criminal issues where the crime involves an imminent threat or serious bodily injury to another human being.  

The move to report additional criminal activities to law enforcement seems to have only increased with media reporting of security clearance related criminal activities, such as the Navy Yard shooting and the Edward Snowden disclosure issues.  These high profile security clearance related matters have made clearance investigators somewhat more likely to report serious crimes disclosed during the clearance process which have not previously been reviewed by law enforcement authorities.  There have also been some recent congressional investigations into the failure of some federal agencies to report serious crimes disclosed during the clearance process.  

However, given the high volume of reported minor criminal issues (i.e. past drug use) that occurs during the security clearance process the likelihood is that federal agencies are unlikely to refer more than the most serious crimes uncovered in the security clearance process.  

The Best Course of Action - Obtain Legal Advice

When evaluating one’s risks in reporting security clearance issues  involving possible criminal conduct, it is important to obtain legal advice as early as possible.  An attorney familiar with this area of law can help advise you as to whether it is appropriate to continue in the security clearance process and potential risks with respect to criminal issues which are disclosed to security clearance investigators, polygraphers, etc.  

Conclusion

When an individual is facing security clearance issues in the context of potential reportable criminal behavior, it is important to obtain legal advice and potential representation.  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 http://facebook.com/BerryBerryPllc

Psychological Conditions and Security Clearances

By John V. Berry, Esq., www.berrylegal.com 

When an individual is facing issues related to a particular psychological condition, either during the application process for a security clearance or after they obtain a security clearance, it is important for them to obtain legal advice and possible representation in order to provide the best opportunity to maintain access to classified information.  There are a number of security concerns relating to psychological conditions that can be potentially mitigated iif the right evidence is presented.  

Guideline I - Psychological Concerns

Guideline I of the Adjudicative Guidelines (contained within DOD Directive 5220.6) governs security clearance issues involving psychological conditions.  Guideline I provides the following security concerns about individuals with psychological conditions:

The Concern. Certain emotional, mental, and personality conditions can impair judgment, reliability, or trustworthiness. A formal diagnosis of a disorder is not required for there to be a concern under this guideline. A duly qualified mental health professional (e.g., clinical psychologist or psychiatrist) employed by, or acceptable to and approved by the U.S. Government, should be consulted when evaluating potentially disqualifying and mitigating information under this guideline. No negative inference concerning the standards in this Guideline may be raised solely on the basis of seeking mental health counseling.

How to Mitigate (Resolve) Psychological Concern Issues

We often represent and advise individuals regarding mental health concerns that arise in the course and scope of holding or seeking to obtain a security clearance.  Typically, mitigation will require the assistance of an individual’s medical professionals in order to demonstrate that the psychological condition does not remain a significant security concern.  The following are some of the types of mitigation arguments that can be made in security clearance cases (in any given case, some will apply, and others will not):

1. Evidence which shows that the psychological condition is under control with treatment;

2. Evidence which demonstrates that the individual has demonstrated ongoing compliance with medical treatment (and consistency);

3. Evidence that the individual has entered a counseling or other treatment program by qualified medical professionals;

4. Medical opinions by qualified mental health professionals which show that the psychological condition is under control; 

5. Evidence that the psychological condition at issue was temporary in nature and/or no longer remains a current problem; and/or

6. Evidence from family and friends which demonstrates that an individual has recovered from psychological conditions.

Sample Cases

The following are summaries of sample cases involving Guideline I cases before the Defense Office of Hearings and Appeals (DOHA) involving psychological conditions:

1. ISCR Case Number: 07-10169 (May 2010) (Applicant was diagnosed with major depression, recurrent, moderate, without psychosis; dysthymic disorder history; panic disorder without agoraphobia; and generalized anxiety disorder.  Clearance was granted because DOHA found that Applicant’s psychological conditions were under control and managed properly by Applicant’s physicians). 

2. ISCR Case Number:  09-02257 (Aug. 2010) (Applicant was diagnosed with major depressive disorder, but DOHA granted clearance finding that Applicant’s medications were being properly managed and that the Applicant’s mental health had improved to the point where he was in remission).

3. ISCR Case Number: 12-00322.h1 (Jan. 2014) (Applicant's diagnosed psychological condition, bi-polar disorder, was not mitigated (and clearance was denied) due to the absence of current evidence from a mental health professional to corroborate his claim that he no longer needed medication or consultation);

4. ISCR Case Number: 09-00318.h1 (June. 2012) (Applicant’s history of non-compliance with medical treatment for diagnosed bi-polar disorder, resulting in judgment difficulties and behavioral problems causing hospitalization was not mitigated and clearance was denied);

5. ISCR Case Number. 10-01525 (March 2012) (Applicant mitigated the psychological conditions concern under Guideline I, as depression was in remission and no current problems existed.  Applicant had previously suffered from episodes of depression in 2003, 2006, and 2009, but quickly overcame these bouts on his own (two being clearly related to outside stressors, including a divorce after 14 years of marriage).  

Conclusion

When an individual is seeking advice regarding a psychological condition as it impacts a security clearance, it is important to obtain legal representation.  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.

 

7 Recommendations for the Security Clearance Process When Problems Arise

By John V Berry, www.berrylegal.com 

The following are 7 recommendations for federal employees and government contractors (also referred to as “applicants” when they are applying or re-applying for a security clearance) to consider when they discover that they could have problems in their security clearance application. 

Usually, an applicant first discovers a potential problem area when they contemplate completing their security clearance application (e-QIP / SF-86). Concern is usually first raised when an applicant reviews the questions in the application package and finds a question that cannot be answered with a clear "no." (example: In the last seven (7) years, have you illegally used any drugs or controlled substances?).  When this occurs, an applicant should consult with legal counsel early to determine the best strategy for avoiding the potential loss of an existing security clearance for a clearance holder or an initial denial for a new applicant.  

General Recommendations

The following are some general tips to consider when facing security clearance issues: 

1. Obtain Legal Advice Early: An applicant has the best chance of resolving security concerns when they recognize a potential issue and seek counsel early.  Doing so at the beginning of the clearance process usually maximizes the ability of an applicant to mitigate the security concerns. It is often the case that we see applicants that are seeking to appeal an adverse clearance determination, after the initial stages have been adjudicated. In many stages of the clearance appeal process, if evidence is not presented at the early determinations, an appeal may not permit additional evidence to be submitted following the denial (example: an adverse decision issued following a DOHA hearing to a government contractor).  Appeals can be difficult so obtaining counsel at the early stages of the clearance process is critical.  

2. Be Honest Throughout the Clearance Process: This tip may seem obvious, but it cannot be overstated.  Applicants should be honest in the clearance process. When an applicant is not honest during the clearance process it not only can bar the individual from receiving a security clearance (often forever), but can raise a host of other legal issues for not being honest on the application itself.  It is a lot easier for a security clearance attorney to mitigate security clearance concerns involving prior drug or alcohol usage, than it is to defend against an allegation that an applicant was not honest in their clearance application or interview about these issues.  The applicant, before any such disclosures, should consult with a clearance lawyer for legal advice.  

3. Proofread the SF-86 / e-QIP Carefully: There are often applicants that receive clearance denials where they did not adequately read the questions or proofread their responses on the SF-86 / e-QIP prior to submission.  This is very important to understand.  In some cases, if an applicant does not take the time to read the question and answers "no" when they should have answered "yes" to a particular question, a clearance investigator might conclude that the applicant was attempting to be untruthful.  It is very important to carefully complete the security clearance application before it is submitted. 

4. Gather Relevant Documents Prior to Completing Clearance Forms:  Take the time to gather relevant documents, in advance, related to any potential security clearance problem areas.  Doing so will help an applicant in 2 ways: (1) it will help an applicant remember all of the details of the potential security concern (examples: an arrest or bankruptcy filing that occurred 5 years ago) in preparation for answering questions; and (2) the documentation may help to mitigate the security concerns if it is later needed.  Note: this should be discussed with an attorney prior to an investigative interview or prior to providing documents. 

5. Prepare for the Investigative Interview: If an applicant knows that there is a good chance that problem areas exist in a security clearance application, he or she should expect to be asked about the areas in advance by the investigator that is assigned. These interviews can vary from 1 hour to several hours depending on whether significant security concerns exist. Preparation (and practice) for the interview can help iron out any problem areas in advance.  Doing so can also provide confidence to the applicant when the time comes to meet with the investigator and to explain their responses to any security concerns.  

6.  Don’t React Defensively to Security Clearance Questions:  When asked about problem areas in a security clearance application by an investigator, do not react defensively.  It is important to be calm and positive about the issues when speaking to an investigator.  This is why we generally recommendation preparing with counsel for a security clearance interview if there are significant security issues that may be raised.  In addition, arguing with an investigator will never benefit an applicant in a security clearance investigation.  

7.  Understand the Timeline for the Security Clearance Process:  When security clearance issues develop, it is important to understand that the process can either be resolved quickly (few weeks) to a number of months depending on a number of factors including: (a) whether the applicant is a federal employee or government contractor; (b) the number or significance of the security concerns; (c) delays in obtaining responses from federal agencies in seeking an investigative file; (d) the general investigative backlog; and (e) the specific employer involved.  There are a multitude of other considerations that can also delay adjudication.  

Conclusion

When security clearance issues arise for an applicant, it is important to obtain the advice of an attorney and potential representation.  It is important to do so as early in the clearance process as possible. Our law firm advises individuals in the security clearance process, in addition to representing them as they proceed through the investigations process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

Security Clearance Interviews

By John V. Berry, Esq., www.berrylegal.com

When individuals have difficulties in the security clearance process or anticipate future difficulties, we advise and represent them the investigation process.  Typically, the best opportunity to avoid future security clearance difficulties is when government contractors or federal employees obtain legal advice early in the process, before they meet with a security clearance investigator.  This article discusses some of the issues associated with preparing for and meeting with a security clearance investigator in the beginning of the security clearance process. 

Interview Preparation

One of the most important considerations in meeting with a security clearance investigator for the first time is to be prepared in advance for the meeting, especially where there may be potential disqualifying issues or areas of concern.  We find that most government contractors and federal employees have a general sense of potential clearance problems when they are completing their e-QIP / SF-86 application.  Usually, a person is alerted to potential problems when they find that they may have to answer "yes" to a particular question where a disclosure is required. 

For instance, suppose an individual has been arrested for driving under the influence of alcohol and has had to list “yes” under Section 22 of the SF-86 application. It can generally be assumed that the security clearance investigator will then have questions about the arrest, the disposition of the charge and whether or not the arrest demonstrates an ongoing alcohol issue.  As a result, an individual should be well prepared to discuss these issues with the investigator. It may even be helpful to outline a full response in advance to the questions that could arise. If there are multiple issues of concern of the same type (i.e. multiple traffic arrests for alcohol use) there may need to be additional advance preparation to demonstrate to the investigator that these similar issues don’t represent a pattern and are unlikely to be repeated in the future.

In short, the key to a successful security clearance interview is advance preparation and honesty. 

Gather Important Documents in Advance of Interview

Another important consideration with respect to an individual’s meeting with a security clearance investigator is to gather documents in advance that may be important to provide at the security clearance interview.  This is important if there are issues that are certain to be raised with respect to a security clearance investigation.  For instance, suppose an individual has previously declared bankruptcy and has documentation regarding their bankruptcy filing and also their efforts to resolve their financial debts. These types of documents may be important to provide early in the process to the investigator, depending on the nature of an individual case. 

In short, when an individual knows that there are likely to be issues of concern with their security clearance, it is important to gather all of the relevant documentation related to the issue and then consult with an attorney to discuss the best method to present documents to an investigator in attempting to mitigate any security concerns

Answer the Questions Asked

One of the other issues we often notice in security investigator meetings is the tendency of some individuals to provide additional information that is not sought.  We advise government contractors and federal employees to answer the questions asked by investigators, as honestly as possible, but to stick to the actual questions that are posed.  On many occasions, individuals can get sidetracked or provide information that is not relevant to the questions asked by an investigator.

The usual key to a successful interview is to be as responsive as possible to any areas of concern but to make the meeting with the clearance investigator as “to the point” as possible.  Investigators tend to have many cases to review and like to focus on their particular areas of concern.  The better an individual can address specific issues raised by an investigator efficiently, the better the potential outcome.  When issues arise, it is important to consult with counsel to obtain the best legal advice possible in presenting one’s response to difficult questions. 

Be Prepared for Follow Up

Should the investigator need additional information regarding potential areas of concern or need to interview an individual a second time, we typically advise individuals to attempt to anticipate these requests in advance to the extent possible.  For instance, if an investigator (during an initial interview) appears to have questions about one’s medical issues (example: psychological concerns), it may be helpful to attempt to obtain a letter from a medical professional which shows that the psychological concerns are not a significant issue.  Doing so, in advance, can save time and effort later should the investigator come back with additional questions or may resolve the issue early. 

Conclusion

When potential security clearance issues arise, it is important to obtain the advice of counsel where possible disqualification issues could arise.  It is important to do so as early in the process as possible. Our law firm stands ready to advise individuals in the security clearance process, in addition to represent them as they proceed through the investigations process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

The Security Clearance Appeal Process

By John V. Berry, Esq., www.berrylegal.com

The security clearance appeal process seems to be constantly changing as laws and regulations are updated in response to current events.  News events, like the Edward Snowden matter and others have caused additional scrutiny on the security clearance process itself and no doubt will be the cause of additional changes to the security clearance appeal process in the future.  Our law firm practices security clearance law and this article provides an update on the security clearance appeals process for federal employees and government contractors. 

Following a security clearance denial there are a number of appellate options for federal employee and government contractors.  The security clearance process generally unfolds as follows:

The Statement of Reasons (SOR)

The Statement of Reasons (SOR) is the centerpiece of any security clearance case.  The allegations contained within the SOR will be the start of any legal defense to the issues raised.  When we meet with potential clients who have been issued an SOR we first go over the allegations in depth, find out whether any or all of the allegations are true and whether there are any mitigating factors to the security concerns.  A high level of detail is needed at this point in order to fully respond to the SOR.  Following the SOR, the process moves to the response and appeals stage, depending on where an individual is employed.

Clearance Appeals Process for Federal Employees

For federal employees, the SOR is the start of the clearance review process.  Generally, the next step, depending on the individual federal agency involved is for the individual to respond to the SOR through the individual agency and the Department of Defense Central Adjudication Facility (DoDCAF) (other federal agencies like CIA, NGA, DOE, etc. have their own separate appeals processes). 

Generally, a federal employee will respond to a Letter of Intent to Deny a Security Clearance (LOI), which is attached to the SOR.  The federal employee then has the opportunity to rebut the allegations in the SOR to a security clearance adjudicator in writing.  If the adjudicator agrees with the federal employee’s written response the matter is then resolved and the person is granted their security clearance.  If not, the next stage is for the federal employee to appeal the adverse decision.

A federal employee’s appeal of an adverse decision by DoDCAF is completed either by requesting a decision from their agency’s personnel security appeals board (PSAB) or by requesting the appointment of an administrative judge (and a hearing) from the Defense Office of Hearings and Appeals (DOHA).  As we recommend for government contractors, we also generally recommend that a federal employee appeal an adverse clearance decision from DoDCAF to DOHA first.  The DOHA administrative judge will then hold a hearing, permit an individual to present evidence and examine witnesses and will then issue a recommended decision which will then go to the PSAB for consideration.  The PSAB, generally consisting of 3 members, will then vote on whether or not to grant the security clearance.  Generally, it is better to have a full record before the PSAB in order to provide the best chance of success. 

Clearance Appeals Process for Government Contractors

For government contractors, the process of rebutting an SOR is a bit different.  A government contractor will generally have the option of responding to the SOR in writing or through a personal appearance before an administrative judge at the DOHA.  We generally advise government contractors that the best approach to such appeals is to request a hearing before an administrative judge.  We have found in many cases that live testimony can potentially make the difference between obtaining or not obtaining a positive result regarding their security clearance.

If a written appeal (no hearing) is made, then DoDCAF will send the applicant a File of Relevant Material (FORM) which will contain the evidence against them in obtaining a clearance and they will then have the opportunity to respond in writing to the FORM.  However, if one elects an administrative judge and hearing, there will be the opportunity to present all of an individual’s evidence in support of maintaining or obtaining one’s clearance and to fully examine witnesses to attempt to mitigate existing security concerns.  If the hearing goes forward, the administrative judge will then review the evidence presented and will then issue a decision.  If no response is elected or made, the contractor’s security clearance will be denied. 

If an adverse clearance decision is made, either in response to the written record or by an administrative judge, then the individual will have the opportunity to appeal the decision to the DOHA Appeal Board.  Following the ruling by DOHA or the DOHA Appeal Board, the decision is generally final and not subject to further appeal.  Following the DOHA decision, the contractor’s employer is notified of the decision about the security clearance and the procedures for later attempting to obtain a security clearance are provided.   

Conclusion

When facing a security clearance appeal it is important to obtain legal representation in order to provide the best opportunity to maintain or obtain an individual’s security clearance.  Our law firm stands ready to represent and advise individuals on appeals issues in the security clearance process.  We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

Bankruptcy for Security Clearance Holders in 2013

By John V. Berry, Esq., www.berrylegal.com

A number of issues can arise in the context of bankruptcy proceedings for federal employees or government contractors holding security clearances.  We have a number of clients that consult with our Firm regarding the effect of filing for bankruptcy in the context of holding a security clearance.  Given the current government shutdown, there is the possibility that some clearance holders who have had previous financial difficulties (or may have been on the edge of financial difficulties before the shutdown) may be pushed into bankruptcy proceedings. The most important legal advice that we can offer these clients is that they should consult with legal counsel early, prior to engaging in the bankruptcy process, in order to develop a strategy for responding to security clearance issues that will arise.  

Strategies for Dealing with Bankruptcy for the Clearance Holder

Typically, filing for bankruptcy would raise 2 possible concerns under the Adjudicative Guidelines which govern security clearances.  The first and most obvious is Guideline F, Financial Considerations.  To a lesser extent, there is the possibility that a bankruptcy could raise issues under Guideline E, Personal Conduct.  This, however, is less likely. 

First of all, it is important that any bankruptcy be reported to one’s security officer promptly.  Not doing so could cause the clearance holder to run into more significant issues later on relating to the failure to report these issues.  Second, it is critically important that the individual establish a detailed (and written) record of responsibly dealing with the financial issues related to their pending or concluded bankruptcy (e.g. credit counseling, financial advisor assistance). 

In these types of cases, it is important to show that the individual has continued to work with creditors (even if the creditor is non-responsive).  For this purpose, it is important to keep copies of letters that one drafts to creditors attempting to resolve any outstanding debts.  It is also important to point out any ways in which the bankruptcy was caused by unique circumstances that are unlikely to be repeated.  Most important, in the security clearance context, it is important to show that the clearance holder has established a sound game plan so that the financial issues involved in a bankruptcy are unlikely to be repeated. 

Recent (2013) DOHA Cases Involving Bankruptcy Issues and Mitigation

A few recent 2013 cases from the Defense Office of Hearings and Appeals (DOHA) illustrate some important considerations in dealing with bankruptcy in the context of holding a security clearance. 

ISCR Case No. 11-14680 (Aug. 20, 2013) was a security clearance appeal in which the clearance holder was granted a security clearance.  The clearance holder had no financial difficulties until 2007 when his home went into foreclosure and he filed for bankruptcy. DOHA concluded that the clearance holder acted responsibly in attempting to resolve his financial difficulties, specifically, that he attempted to work with the bank holding his mortgage, had worked 2 jobs to meet expenses, engaged in credit counseling and showed evidence of reducing his living expenses. 

ISCR Case No. 11-09731 (Sept. 9, 2013) involved a security clearance holder that was shown to have a history of overdue debts, due to periods of medical leave without compensation, and a split from her significant other.  The clearance holder was also found to have been involved in gambling, which was not resolved. Her debts were not resolved in a Chapter 7 bankruptcy but DOHA found that mitigation had not been shown and denied the security clearance. 

ISCR Case No. 11-13879 (Sept. 17, 2013) involved a security clearance holder that filed for bankruptcy principally relating to owning 2 rental properties which became financially difficult to maintain in light of the financial downturn in the economy and in real estate values between 2007-2011. The clearance holder argued, and DOHA agreed, that the downturn in the economy was profound and warranted the application of mitigation.  The security clearance in this case was granted. 

Conclusion

When holding a security clearance it is important to obtain the advice of counsel where bankruptcy proceedings are anticipated. Our law firm stands ready to advise individuals regarding their security clearance in light of these difficult financial issues. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070 to schedule a consultation or meeting to discuss these issues.  

Seeking Information About JPAS Security Incident Reports

By John V. Berry, Esq., www.berrylegal.com

It is often our experience that government contractors (and federal employees) can have difficulty in resolving JPAS Incident Reports placed on their government security clearance record by a current employer, former employer or other entity.  There are a variety of reasons why these issues arise, but the reality is that government contractors and federal employees need to take action when they become aware of an existing Incident Report in the Joint Personnel Adjudication System (JPAS).  As most individuals that hold a security clearance are aware, JPAS is a computerized database maintained by the Department of Defense (DOD) which processes and evaluates eligibility for security clearance and access.  JPAS maintains Incident Reports which contain alleged security concerns that must be resolved for continued access to classified information.    

Seeking Information from OPM / DOD

It is often the case that an individual first becomes aware of an Incident Report when they apply for a government contractor position (they also find out in a number of other ways). They are told of an issue by their new employer, which must be resolved for them to transfer their security clearance and keep the new position.   Most of the time, an individual, however, does not have information specifying the specific security concern that is the problem.  As a result, the first step that is recommended for contractors and federal employees is to request a copy of all documents related to the security clearance process from the government in order to determine the extent of the existing security concern. 

By doing so, an individual may uncover errors in the information that is maintained in JPAS or the security concerns at issue that are listed in the Incident Report.  Typically, to obtain this information, we may file a joint Privacy Act and Freedom of Information Act (FOIA) request on behalf of our individual clients.  In these requests, we typically seek copies of an employee’s prior background investigations, investigator summaries, and existing incident reports in addition to other information.  The requests have to be formatted properly before the Office of Personnel Management (OPM), on behalf of the DOD, will respond.

What Type of Information is Generally Provided by OPM / DOD

The amount and type of information provided in response to a Privacy Act or FOIA request will vary depending on how it is written.  Typically, the information provided within a JPAS Incident Report can be very helpful to understanding the nature of existing security concerns.  A JPAS Incident Report summary will provide the incident date, the receiving CAF and the CAF date of receipt, in addition to the incident criteria (the general security concern categories, e.g. personal conduct, foreign influence). 

The Incident Report will also provide an unclassified description of the security issue and basis for the action.  Generally, the description will include a synopsis of the security issue and is usually the most important piece of information that can be provided.  In addition to the Incident Report, other information may be provided in response to the Privacy Act request, to include a Person, Investigative and Adjudicative Summary report.   Contained in this type of information request response will also likely be a Message History report which itemizes the actions taken regarding the adjudication of the individual’s security clearance by the government. These documents and information can be helpful to determine progress regarding a security investigation and when issues have been raised and adjudicated.  

Conclusion

When facing an existing Incident Report it is important to obtain the advice of counsel in evaluating your legal options. There are a number of steps that need to be taken in order to begin the process of attempting to uncover the basis for an Incident Report and to attempt to begin to resolve the issues raised. Our law firm stands ready to advise individuals on these types of security clearance issues. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. 

The Importance of Properly Completing Security Clearance Forms

By John V. Berry, Esq., www.berrylegal.com

When applying or re-applying for a security clearance, it is very important that one
spends enough time on their application in order to properly complete their security
clearance paperwork.  Often times, there can be many mistakes which result from not spending enough time in reviewing and completing the SF-86 / Electronic Questionnaires for Investigations Processing (e-QIP) submission paperwork.  These
mistakes can significantly delay or seriously affect an individual’s ability to obtain
or maintain a security clearance. 

The e-QIP is the electronic means in which to complete the forms for an individual’s security clearance (i.e. the SF-86).  In the past, this was completed directly
on the paper form itself.  The e-QIP process, through OPM, has changed this from a paper based application to a web-based system.  The e-QIP system allows the
individual to complete their background investigations online over a secure
Internet connection. 

Tips in Completing the SF-86 / e-QIP

One of the most frequent pieces of advice that we provide to security clearance clients is that it is important for them to be truthful in the completion of their security clearance paperwork. Often times, issues that arise that seem major are far less significant than the problems that arise when an individual is less than honest in their security clearance application paperwork.  It can be very difficult to overturn an adverse finding on truthfulness or honesty.

In addition, when the SF-86 / e-QIP is completed too quickly or without adequate preparation it is often the case that mistakes can be made.  When a mistake is made, even if not intentional, security clearance authorities (DoDCAF, CIA, NSA, etc.) can view the omission as intentional in nature which can also raise an issue of truthfulness or lack of full disclosure even if the mistake was not intentional. 

Therefore, before the SF-86 / e-QIP is completed, if there are potential issues, they should be fully reviewed with the assistance of counsel familiar with the security clearance process.  Often times, the questions asked can have more than one meaning in the context of an individual issue.  Other tips for the proper completion of the SF-86 / e-QIP include obtaining information from prior employers, contact information for friends and relatives, in addition to any documents related to information that must be disclosed (e.g. an existing tax lien or arrest record that must be disclosed). 

What to do when Issues Arise in Completing the SF-86 / e-QIP

When issues arise for an individual in the security clearance application process, it is important to obtain the advice of counsel in completing one’s security clearance paperwork.  For example, if an individual is facing their 5-year re-investigation and have had a driving under the influence charge in the interim, it is important to prepare to respond to the allegation, in advance of submitting one’s SF-86 / e-QIP given that this will be an important part of the new investigation. 

Conclusion

When security clearance issues arise it is important to obtain the advice of counsel where potential issues might arise. An individual will want to obtain legal advice if there is reason for concern regarding their completion of this security clearance paperwork. Our law firm stands ready to advise individuals on the issues involving the proper completion of security clearance forms and associated disclosures. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070.

Security Clearance Processing Times

By John V. Berry, www.berrylegal.com

 

In an interesting recent article, the Director of National Intelligence listed the various federal agency processing times for security clearance adjudications.  The report details the different ranges of time needed to adjudicate a security clearance based on the agency involved. The report findings show how the times varied based on the agency.  The article is recommended reading.  DNI Security Clearance Processing Times

Filing Information Requests in Security Clearance Cases

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

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.

Closing Thoughts

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.