PSH-14-0104

*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: December 4, 2014 ) Case No.: PSH-14-0104
)
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Issued: March 13, 2015
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Decision and Order
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Robert B. Palmer, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXX (hereinafter referred to as “the
individual”) for access authorization under the regulations set forth at 10 C.F.R. Part 710,
entitled "Criteria and Procedures for Determining Eligibility for Access to Classified Matter or
Special Nuclear Material.” 1 For the reasons set forth below, I conclude that the individual’s
security clearance should not be restored at this time. 2
I. BACKGROUND
The individual is employed by a Department of Energy (DOE) contractor, and was granted a
security clearance in connection with that employment. In July 2014, the local security office
(LSO) received an incident report from the individual’s employer. That report indicated that she
had received a verbal reprimand and had been removed from her position for accessing and
1An access authorization is an administrative determination that an individual is eligible for
access to classified matter or special nuclear material. 10 C.F.R. § 710.5. Such authorization will
also be referred to in this Decision as a security clearance.
2 Decisions issued by the Office of Hearings and Appeals (OHA) 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.oha.doe.gov/search.htm.
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viewing other employees’ personnel records without a business need, in violation of the
employer’s policies. DOE Exhibit (DOE Ex.) 5. Because this information raised security
concerns, the LSO summoned the individual for an interview with a personnel security specialist.
After this Personnel Security Interview (PSI) failed to adequately address these concerns, the
LSO determined that derogatory information existed that cast into doubt the individual’s
eligibility for access authorization. The LSO informed the individual of this determination in a
letter that set forth the DOE’s security concerns and the reasons for those concerns. I will
hereinafter refer to this letter as the Notification Letter. The Notification Letter also informed the
individual that she was entitled to a hearing before an Administrative Judge in order to resolve
the substantial doubt concerning her eligibility for access authorization.
The individual requested a hearing on this matter. The LSO forwarded this request to the Office
of Hearings and Appeals, and I was appointed the Administrative Judge. The DOE introduced
seven exhibits into the record of this proceeding. The individual introduced three exhibits and
presented the testimony of three witnesses, in addition to testifying herself.
II. THE NOTIFICATION LETTER AND THE DOE’S SECURITY CONCERNS
As indicated above, the Notification Letter included a statement of derogatory information that
created a substantial doubt as to the individual’s eligibility to hold a clearance. This information
pertains to paragraph (l) of the criteria for eligibility for access to classified matter or special
nuclear material set forth at 10 C.F.R. § 710.8.
Criterion (l) defines as derogatory information indicating that an individual has engaged in
unusual conduct or is subject to circumstances which tend to show that he is not honest, reliable
or trustworthy; or which furnishes reason to believe that he may be subject to pressure, coercion,
exploitation or duress which may cause him to act contrary to the best interests of national
security. As support for its invocation of this criterion, the Letter alleges during her September
2014 PSI, the individual admitted that:
 From May 2013 to August 2014, she misused her Human Resources (HR) Queries access
by viewing 10 to 15 of her co-workers’ wage and employment classification information
without a business need; 3
 In 2013, she misused her HR Queries access by viewing a student intern’s degree
program and employment classification and sharing the information with a colleague;
 She misused her HR Queries access by viewing between 10 and 20 pictures of other
employees without a business need; and
 Prior to obtaining HR Queries access, she received training and signed a form which
indicated that it was a violation of company policy to access the information for anything
3 The August 2014 ending date alleged in the Notification Letter for the individual’s misuse of
her HR Queries access is incorrect. The record indicates that she was reprimanded and removed
from her position effective June 2, 2014, and the individual testified that her access ended in
“approximately March 2014.” See DOE Ex. 5; Hearing Transcript (Tr.) at 14.
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other than a business need. Despite this, she knowingly violated the policy on numerous
occasions.
The individual generally does not dispute these allegations, and they adequately justify the
DOE’s invocation of criterion (l). They also raise serious security concerns. Deliberate or
negligent failure to comply with rules and regulations pertaining to information technology
systems or to the protection of classified or other sensitive information raises doubt about an
individual's trustworthiness, judgment, reliability, or willingness and ability to safeguard such
information. See Revised Adjudicative Guidelines for Determining Eligibility for Access to
Classified Information, The White House (December 19, 2005), Guidelines E, K and M.
III. REGULATORY STANDARDS
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710
dictate that in these proceedings, an Administrative Judge must undertake a careful review of all
of the relevant facts and circumstances, and make a “common-sense judgment . . . after
consideration of all relevant information.” 10 C.F.R. § 710.7(a). See also Adjudicative
Guidelines, ¶ 2(c). I must therefore consider all information, favorable or unfavorable, that has a
bearing on the question of whether granting or restoring a security clearance would compromise
national security concerns. Specifically, the regulations compel me to consider the nature, extent,
and seriousness of the individual’s conduct; the circumstances surrounding the conduct; the
frequency and recency of the conduct; the age and maturity of the individual at the time of the
conduct; the absence or presence of rehabilitation or reformation and other pertinent behavioral
changes; the likelihood of continuation or recurrence of the conduct; and any other relevant and
material factors. 10 C.F.R. § 710.7(c); Adjudicative Guidelines, ¶ 2(a).
A DOE administrative proceeding under 10 C.F.R. Part 710 is “for the purpose of affording the
individual an opportunity of supporting his eligibility for access authorization.”
10 C.F.R. § 710.21(b)(6). Once the DOE has made a showing of derogatory information raising
security concerns, the burden is on the individual to produce evidence sufficient to convince the
DOE that granting or restoring access authorization “will not endanger the common defense and
security and will be clearly consistent with the national interest.” 10 C.F.R. § 710.27(d). See
Personnel Security Hearing, Case No. VSO-0013, 24 DOE ¶ 82,752 at 85,511 (1995) (affirmed
by OSA, 1996), and cases cited therein. I am also required to resolve any doubts concerning the
individual’s eligibility for access authorization in favor of the national security.
10 C.F.R. § 710.7(a); Adjudicative Guidelines, ¶ 2(b).
IV. ANALYSIS
A. Mitigating Evidence
At the hearing, the individual attempted to demonstrate, through her testimony and that of two
co-workers and her manager, that she is a trustworthy and reliable person who can be depended
upon to follow all rules regarding the safeguarding of classified or sensitive information.
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The individual testified that she has previously worked in jobs in which she was entrusted with
items of value or sensitive information without any breaches of her responsibilities. Tr. at 11-12.
At the time that she had access to her current employer’s HR database (from May 2013 to
approximately March 2014), she was a program administrator who was charged with
interviewing, hiring and monitoring the progress of apprentices. Tr. at 14. She said that she
viewed the wage and professional level information of 10 to 15 of her co-workers because she
was just finishing work on her Masters Degree and she wanted to see what kind of job she could
get with her current employer once she finished. Tr. at 21. She admitted that this was not within
the scope of her professional responsibilities, but that she did it anyway because at the time, she
was “very insecure” about her professional status, and therefore she “acted impulsively.” Tr. at
22. She added that she did not share this information with anyone and did not use it for personal
gain or personal advantage. Tr. at 23-24.
The individual also testified that she inadvertently violated her employer’s policies by viewing a
student intern’s degree program and employment classification information and sharing it with a
colleague. She explained that the colleague inquired about the intern’s information because he
wanted to ensure that the intern “had been placed appropriately in her current job position, which
he had not been made aware of previously.” Tr. at 15. Because of the colleague’s position, the
individual assumed that he had the same or similar access to the information that she did, and she
believed that providing the information was within the scope of her duties because she had
received very similar requests from other customers in the past. Tr. at 15-16. The individual
acknowledged that accessing the requested information was not within the scope of her duties as
a program administrator, and that she had learned from the experience that she needed to be
more diligent about adhering to her duties and about the people to whom she disclosed sensitive
information. Tr. at 17.
Regarding her unauthorized viewing of pictures of her fellow employees, the individual said that
a co-worker had approached her and informed her that his daughter had recently graduated from
high school and would be interested in a job as a summer intern. He gave her some information
about his daughter and asked that if the individual knew of any openings for her, to let the fellow
employee know. By the time the individual became aware of a suitable position, she had
forgotten the name of the fellow employee, and she looked at the pictures to identify the person
that had talked to her about his daughter. Tr. at 18. Although as a recruiter she believed it to be
within the scope of her duties to contact the employee, she acknowledged that the way that she
attempted to identify him, by using her HR Queries access to view photos of her co-workers, was
inappropriate. Tr. at 20. She testified, though, that she was not aware at the time that she viewed
the photos that she was violating her employer’s policies, and that she did not receive any
training to that effect previous to the incident. Tr. at 19.
The individual committed these violations of her employer’s policies despite learning during her
training that she was not permitted to access the information for anything other than a business
need, and despite signing a form to that effect. Tr. at 24-25. She explained that she acted
carelessly, and was not mindful of those policies when she accessed the information. The
individual has no objection to these policies, and is willing to comply with them and with DOE
policies in safeguarding information in the future. She referred to her actions as “stupid, careless
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mistakes” that happened during an isolated period, and that do not accurately reflect her
character. Tr. at 25-26.
These mistakes are unlikely to recur, she added, because she has completed her Masters’ Degree
and is no longer insecure about her professional status, and because she is receiving counseling
so that she can more readily recognize her insecurities and tendencies to act impulsively and
more readily control them. Tr. at 27. In her counseling, she has “been able to identify different
areas, actions, meditation, cognitive thinking, physical exercise, and just different ways to be
able to hone in on [her] stressors, to be able to think more proactively versus reactively, to be
able to . . . analyze the situation and the environment and my own personal feelings before
reacting to possibly a negative environment.” Tr. at 32.
One of the individual’s co-workers was an investigator who conducted an inquiry into the
individual’s actions. This co-worker testified that the individual was very honest and
forthcoming during the investigation, and expressed remorse for her actions. Tr. at 61-68. When
asked about the individual’s character, her manager said that “she’s been fitting in very well with
our organization,” and that she has been “very forthcoming with information . . . about this
process.” Tr. at 77. Another co-worker said that he “never had a problem with [the individual’s]
integrity,” and that he “never questioned her reliability or judgment.” Tr. at 85.
The individual also submitted letters from her counselor, her psychologist, and a third co-worker.
The individual’s counselor wrote that she has “successfully established and completed a lifestyle
plan” during their coaching sessions, and that the individual “was proactive in identifying areas
of lifestyle improvement in her health to strengthen and taking the time and initiative to improve
her overall health and wellbeing.” Individual’s Exhibit (Ind. Ex.) C. Her psychologist wrote that
the individual has “been addressing her stress management skills and self-understanding and has
been making excellent progress in these areas.” Ind. Ex. A. According to the co-worker, who
worked closely with the individual in 2010-2011, the individual was “always very careful to
appropriately mark, store and protect” confidential, proprietary, or “Official Use Only”
information or documents, and to follow company rules and procedures. Ind. Ex. B.
B. Administrative Judge’s Determination
Despite this mitigating evidence, I continue to harbor doubt about the individual’s judgment and
reliability. These doubts are based on the frequency and recency of her violations of her
employer’s policies, and on the nature of the transgressions themselves.
The individual has admitted to knowingly and deliberately violating her employer’s policies on
10 to 15 occasions over a 10-month period by accessing sensitive, personal information of her
co-workers without a business need. She also inadvertently violated those policies on multiple
additional occasions during that period by accessing the personal information of a co-worker and
then communicating that information to another co-worker who was not authorized to receive it,
and by viewing the photographs of 10 to 20 other co-workers. This was therefore not a single,
isolated incident, but a pattern of misbehavior occurring over a period of almost a year.
Moreover, the investigator testified that the incidents of improper access occurred throughout the
10 months that the individual had HR Queries access, Tr. at 69, and that access ended in March
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of 2014, less than one year before the hearing. The passage of time is not a mitigating factor in
this case. See Adjudicative Guidelines, ¶¶ 17(c), 35(a) and 41(a).
The protection of classified and sensitive information lies at the very core of the DOE’s
personnel security program. Although the information that she improperly accessed was not
classified, the individual has demonstrated a willingness to disregard policies and procedures
designed to protect information from unauthorized disclosure. Her actions with regard to her co-
workers’ records have resulted in a serious violation of their privacy. Similar actions with regard
to classified information could have catastrophic results.
The mitigating evidence presented by the individual does not adequately address these concerns.
Although the individual has been receiving counseling, the record indicates that this began
before the individual’s improper HR Queries access was discovered, with the purpose of
addressing an alleged negative work environment, and not specifically to address the individual’s
rules violations. Tr. at 37-38; Ind. Ex. A. I also attribute little weight to the statement of the
individual’s co-worker set forth in Ind. Ex. B about the individual’s handling of sensitive
information in 2010-2011, given the more recent misconduct described above.
V. CONCLUSION
For the reasons set forth above, I find that the individual has not adequately addressed the DOE’s
concerns under criterion (l). Consequently, she has failed to convince me that restoring her
access authorization would not endanger the common defense and would be clearly consistent
with the national interest. Accordingly, I find that the DOE should not restore the individual’s
security clearance at this time. Review of this decision by an Appeal Panel is available under the
procedures set forth at 10 C.F.R. § 710.28.
Robert B. Palmer
Administrative Judge
Office of Hearings and Appeals
Date: March 13, 2015