PSH-12-0124

* The original of this document contains information which is subject to withholding from disclosure
under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXX’s.
United States Department of Energy
Office of Hearings and Appeals
In the Matter of: Personnel Security Hearing )
)
Filing Date: October 18, 2012 )
) Case No.: PSH-12-0124
__________________________________________)
Issued: January 14, 2013
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Hearing Officer Decision
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Richard A. Cronin, Jr., Hearing Officer:
This Decision concerns the eligibility of XXXXXXXXXXXXX (“the Individual”) to possess a
Department of Energy (DOE) access authorization.1 For the reasons detailed below, I find that
the Individual’s suspended access authorization should not be restored.
I. BACKGROUND
The Individual is a contractor employee at a DOE facility and held a security clearance. Exhibit
(Ex.) 3 at 1. The Individual was selected to undergo a polygraph examination in April 2012. Ex.
3 at 1. In response to a polygraph question regarding whether he had ever mishandled classified
materials, the Individual revealed that he had been involved in several incidents where security
rules had been broken. Consequently, the local security office (LSO) conducted a personnel
security interview (2012 PSI) with the Individual in August 2012 (2012 PSI). Ex. 8.
Because the 2012 PSI failed to resolve the concerns raised by the security incidents, the LSO
informed the Individual, in a September 2012 notification letter (Notification Letter), that
derogatory information existed under 10 C.F.R. §§ 710.8 (g) and (l) (Criterion G and L,
respectively) that created a substantial doubt as to his eligibility to retain a security clearance.
Ex. 1. The Notification Letter also informed the Individual that his security clearance was
1 Access authorization, also known as a security clearance, is an administrative determination that an individual is
eligible for access to classified matter or special nuclear material. 10 C.F.R. § 710.5.
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suspended and he was entitled to a hearing before a Hearing Officer in order to resolve the
security concerns. Id.
The Individual requested a hearing on this matter. At the hearing, the DOE counsel introduced
five exhibits into the record (Exs. 1-5). The Individual presented his own testimony, as well as
the testimony of his direct supervisor (Supervisor) and a co-worker (Co-Worker). See Transcript
of Hearing, Case No. PSH-12-0124 (hereinafter cited as “Tr”).
II. REGULATORY STANDARD
The regulations governing the Individual’s eligibility for access authorization are set forth at
10 C.F.R. Part 710, “Criteria and Procedures for Determining Eligibility for Access to Classified
Matter or Special Nuclear Material.” The regulations identify certain types of derogatory
information that may raise a question concerning an individual’s access authorization eligibility.
10 C.F.R. § 710.10(a). Once a security concern is raised, the individual has the burden of
bringing forward sufficient evidence to resolve the concern.
In determining whether an individual has resolved a security concern, the Hearing Officer
considers relevant factors, including the nature of the conduct at issue, the frequency or recency
of the conduct, the absence or presence of reformation or rehabilitation, and the impact of the
foregoing on the relevant security concerns. 10 C.F.R. § 710.7(c). In considering these factors,
the Hearing Officer also consults adjudicative guidelines that set forth a more comprehensive
listing of relevant factors. See Revised Adjudicative Guidelines for Determining Eligibility for
Access to Classified Information (issued on December 29, 2005 by the Assistant to the President
for National Security Affairs, The White House) (Adjudicative Guidelines).
Ultimately, the decision concerning eligibility is a comprehensive, common-sense judgment
based on a consideration of all relevant information, favorable and unfavorable. 10 C.F.R.
§ 710.7(a). In order to reach a favorable decision, the Hearing Officer must find that “the grant or
restoration of access authorization to the individual would not endanger the common defense and
security and would be clearly consistent with the national interest.” 10 C.F.R. § 710.27(a). “Any
doubt as to an individual’s access authorization eligibility shall be resolved in favor of the
national security.” Id; see generally Dep’t of the Navy v. Egan, 484 U.S. 518, 531 (1988) (Egan)
(the “clearly consistent with the interests of national security” test indicates that “security
clearance determinations should err, if they must, on the side of denials”).
III. FINDINGS OF FACT AND ANALYSIS
A. Factual Findings
The underlying facts are not disputed. During the April 2012 polygraph examination, the
Individual revealed that, in 2011, he had written a coded version of a combination to a secured
area safe2 on a post-it note (2011 Password Incident) and had taken it home with him. Ex. 5 at 9;
Tr. at 38. Later, after trying to remember if he had been involved in other security incidents, the
Individual informed officials that, in 2002 and 2005, he had written a coded combination to a
2 Referred to herein as a classified repository or classified safe.
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classified safe in his day planner and had taken the planner home with him (2002 and 2005
Password Incidents). Ex. 5 at 7, 17; Ex. 4 at 1.
During the 2012 PSI, the Individual recounted the 2002, 2005, and 2011 Password Incidents. Ex.
5 at 5, 7, 17. Further, the Individual admitted that, with regard to each of these incidents, he was
aware of the facility’s security rules regarding the storage of combinations and his duty to report
these incidents to the LSO. Ex. 5 at 17-21, 22-24, 27-28. The Individual admitted that he did not
report any of these incidents to responsible security officials because he was afraid of the
consequence to his career that would result from the incidents.
The Individual also revealed in the 2012 PSI that he had been involved in an incident where a
secured door had not been properly latched (2012 Door Incident). Ex. 5 at 45-46. The Individual
was conducting an assessment of a secured facility. Another employee signed out the key for
various doors at the facility and escorted the Individual. The next day, one of the secured doors
was found not to be properly latched. Ex. 5 at 47. The door was later found to have a mechanical
fault that prevented it from properly latching despite the employee’s and the Individual’s belief
that they had, in fact, latched the door. Tr. at 15. The Individual was not assigned any
responsibility for this incident. Ex. 5 at 49.
B. Security Concerns
Criterion G pertains to information indicating that an individual has “[f]ailed to protect classified
matter, or safeguard special nuclear material; or violated or disregarded security or safeguards
regulations to a degree which would be inconsistent with the national security; or disclosed
classified information to a person unauthorized to receive such information; or violated or
disregarded regulations, procedures, or guidelines pertaining to classified or sensitive
information technology systems.” 10 C.F.R. § 710.8(g). The Notification Letter cited the 2002,
2005, and 2011 Password Incidents and the 2012 Door Incident as Criterion G derogatory
information. Also cited as Criterion G derogatory information were the Individual’s failures to
notify the LSO of the Password Incidents.
Deliberate or negligent failure to comply with rules and regulations for protecting sensitive
systems, networks, and information raises doubt about an individual’s trustworthiness, judgment,
reliability, or willingness and ability to safeguard such information, and is a serious security
concern. See Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information (issued on December 29, 2005 by the Assistant to the President for
National Security Affairs, The White House) (the Adjudicative Guidelines), Guideline M, ¶ 39;
see also, e.g., Personnel Security Hearing, Case No. PSH-12-0081 (2012).3 In light of the
Individual’s admissions that he violated procedures for securing classified information, the LSO
had sufficient grounds to invoke Criterion G in this matter.
3 Decisions issued by the Office of Hearings and Appeals (OHA) after November 19, 1996, are available on the
OHA website located at http://www.oha.doe.gov. The text of a cited decision may be accessed by entering the case
number of the decision in the search engine located at http://www.energy.gov/oha/office-hearings-and-appeals.
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Criterion L concerns conduct tending to show that the Individual was “not honest, reliable, or
trustworthy, or which furnishes reason to believe that the individual may be subject to pressure,
coercion, exploitation, or duress which may cause the individual to act contrary to the best
interests of the national security.” 10 C.F.R. § 710.8(l). The Notification Letter cited the 2002,
2005, and 2011 Password Incidents and his admission that he failed to report these incidents as
Criterion L derogatory information.
Noncompliance with rules, procedures, guidelines or regulations pertaining to classified
information or information technology systems may raise security concerns about an individual's
reliability and trustworthiness, calling into question the willingness or ability to protect classified
information or sensitive systems and networks. See e.g., Personnel Security Decision, Case No.
TSO-0658 (2008). See Adjudicative Guidelines, Guideline E, ¶ 15; see also, e.g., Personnel
Security Hearing, Case No. PSH-12-0081 (2012). In light of the Individual’s admissions
regarding his failure to comply with classified information rules and procedures, I find that the
LSO properly invoked Criteria L.
C. Mitigation of Security Concerns
At the hearing, the Individual did not dispute any of the derogatory information listed in the
Notification Letter. Tr. at 47. He presented his own testimony along with his Supervisor’s and
the Co-Worker’s testimony to mitigate the concerns raised by the derogatory information in the
Notification Letter
1. The Supervisor’s and Co-Worker’s Testimony
The Individual’s Supervisor has supervised the Individual for almost 21 years. Tr. at 10. He
testified that with regard to the 2012 Door Incident, the facility determined that the issue was not
a failure to close the door but a mechanical problem with the door itself. Tr. at 13. As a result no
security infraction was issued in reference to that incident. Tr. at 13. The Supervisor believes that
given the mechanical failure, the Individual’s alleged security failure should not be considered
significant. Tr. at 15.
In reference to the other incidents listed in the Notification Letter, the Supervisor believes that
each incident reflects a serious security infraction. Tr. at 13-14. The Individual had received
training that should have directed him not to write down and take home even a coded
combination. Tr. at 16. The Supervisor testified that their organization has had a repository for
almost the entire time he has been working. Tr. at 17. The Supervisor usually found the
Individual to be conscious of and serious about security rules and regulations. Tr. at 17, 21.
Consequently, he was surprised to learn that the Individual wrote a coded password in his day
planner. Tr. at 17.
The Supervisor also thought it was a serious matter that the Individual did not self-report any of
the incidents to the LSO. Tr. at 20. In this regard, the Supervisor testified that his employees are
instructed to self-report security incidents. Tr. at 20. The Supervisor believes that over the past
several years employees have become less fearful of self-reporting security infractions. Tr. at 25.
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The emphasis of their training is to avoid security incidents, but if you do make a mistake, do not
compound the error by not reporting the incident or lying about it. Tr. at 25.
The Supervisor has discussed these Password Incidents, in general, with the Individual and he
believes that the Individual now has a sincere appreciation for his mistakes with the
combinations and would not expect the Individual to make a similar mistake in the future. Tr. at
22. The Supervisor has a high level of confidence regarding the Individual’s willingness to self-
report in the future. Tr. at 23. The Supervisor has not had any reason to question the Individual’s
judgment, reliability, or trustworthiness, outside of the incidents described in the Notification
Letter and considers the Individual “above average” in his job performance. Tr. at 23-24.
Overall, the Supervisor believes that the incidents described in the Notification Letter are not
serious enough to merit revocation of the Individual’s clearance. Tr. at 16.
The Co-Worker testified that he has known the Individual for approximately 11 years. Tr. at 29.
Observing the Individual at work leads him to believe that the Individual pays great attention to
security issues. Further, he never observed the Individual leave classified materials unattended
on his desk. Tr. at 32. The Co-Worker believed that the Individual was trustworthy and reliable.
Tr. at 33.
2. The Individual’s Testimony
The Individual testified that he has worked at the facility since 1991. Tr. at 35. During his
polygraph examination, he answered “yes” to a question regarding whether he had ever
mishandled classified information and discussed the 2011 Password Incident with the examiner.
Tr. at 37. After the polygraph, he was able to recall the 2002 and 2005 Password Incidents and
reported those incidents to the LSO. Tr. at 39.
With regard to the 2002 and 2005 Password Incidents, where he had coded the passwords into
his day planner, the Individual testified that he had always had problems memorizing the
characters that made up the combination to the secured safe. Tr. at 40. This was especially so
since he did not have to access the safe very often. Tr. at 40. The Individual’s problem in
memorizing the combination was complicated by the fact that, if one wrote down the
combination, the document would itself become a classified document. Tr. at 41. The Individual
believes that he is not the only person who has written down a combination in violation of the
security rules. Tr. at 43.
As to why he did not self-report his security incidents, the Individual testified that he believed
that he would get into serious trouble at work, especially with regard to the older incidents,
specifically the 2002 and 2005 Password incidents. Tr. at 43. With regard to classified safe
combinations, the Individual now would not write the combination down. If the Individual did
write the combination down and did not follow the security rules associated with such a
document, he would immediately report the violation to the LSO. Tr. at 44, 46. This is especially
so given the difficulties he has experienced as a result of going through the administrative review
and security hearing process. Tr. at 50.
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D. Analysis
Since the derogatory information that comprise the Criterion G and L concerns are essentially the
same, I will consider them together for the purpose of determining whether sufficient mitigation
exists to justify the restoration of the Individual’s security clearance.
As an initial matter, I find that the Individual has resolved the security concern raised by the
2011 Door Incident. The Supervisor’s testimony indicates that the incident was most likely
caused by a mechanical failure of the door. Further, the Supervisor testified that the LSO has not
issued anyone a formal security infraction regarding this incident. I must conclude, based upon
the evidence before me, that the Individual did not violate any security rule or regulation with
regard to this incident.
With regard to the 2002, 2005, and 2011 Password Incidents, I do not believe that the Individual
has provided sufficient evidence to resolve the security concerns raised by these incidents. While
two of the incidents occurred some time ago, a similar security incident concerning a
combination has occurred recently. Given this, it is apparent that the Individual has a pattern of
laxity regarding security rules for secured safe combinations. The evidence in the record also
indicates that the incidents have not been caused by a lack of training or other unique
circumstance. See Personnel Security Hearing, Case No. PSH-12-0083 (2012). Further, there is
no significant evidence that the Individual has undergone any type of remedial security training.
See Adjudicative Guidelines, Criterion K, ¶ 35(b). While I commend the Individual’s new
attitude regarding his intention to be diligent and self-report future incidents, there is not
sufficient evidence of this changed mindset to find that the Criterion G and L security concerns
have been resolved. In sum, there is insufficient evidence before me that establishes that the
concerns raised by the derogatory information contained in the Notification Letter have been
resolved. See Personnel Security Hearing, TSO-0949 (2010) (individual’s clearance not restored
based upon similar facts to present case).
IV. CONCLUSION
Upon consideration of the entire record in this case, I find that there was sufficient evidence to
raise doubts regarding the Individual’s eligibility for a security clearance under Criterion G and
L of the Part 710 regulations. Further, I find that the Individual has not presented sufficient
evidence to resolve the concerns raised by the Criterion G and L derogatory information.
Therefore, I cannot conclude that restoring the Individual’s access authorization “would not
endanger the common defense and security and would be clearly consistent with the national
interest.” 10 C.F.R. § 710.7(a). Accordingly, I find that the DOE should not restore the
Individual’s access authorization.
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The parties may seek review of this Decision by an Appeal Panel, under the regulation set forth
at 10 C.F.R. § 710.28.
Richard A. Cronin, Jr.
Hearing Officer
Office of Hearings and Appeals
Date: January 14, 2012