PSH-15-0073

*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: September 25, 2015 ) Case No.: PSH-15-0073
)
____________________________________)
Issued: December 21, 2015
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Administrative Judge Decision
______________________
Janet R. H. Fishman, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXX (“the Individual”) to hold an access
authorization1 under the Department of Energy’s (DOE) regulations set forth at 10 C.F.R. Part 710,
Subpart A, entitled, “General Criteria and Procedures for Determining Eligibility for Access to
Classified Matter or Special Nuclear Material.” As discussed below, after carefully considering the
record before me in light of the relevant regulations and the Adjudicative Guidelines, I have
determined that the DOE should not restore the Individual’s access authorization.
I. Background
The Individual is an employee of a DOE contractor in a position that requires that he hold a DOE
security clearance. A Local Security Office (LSO) obtained information that raised security concerns.
In order to address those concerns, the LSO summoned the Individual for an interview with a
personnel security specialist in April 2015. Because the Personnel Security Interview (PSI) did not
resolve these concerns, the LSO began the present administrative review proceeding by issuing a
Notification Letter to the Individual informing him that he was entitled to a hearing before an
Administrative Judge in order to resolve the substantial doubt regarding his eligibility for a security
clearance. See 10 C.F.R. 710.21.
On September 18, 2015, the Individual exercised his right under the Part 710 regulations to request
an administrative hearing. The LSO forwarded this request to the Office of Hearings and Appeals
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.
**This document contains information which is subject to withholding from disclosure under
5 U.S.C. § 552.**
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(OHA), and the OHA Director appointed me the Administrative Judge. At the hearing I convened
pursuant to 10 C.F.R. § 710.25 (e) and (g), the DOE introduced six exhibits (DOE Exs. 1-6) into the
record. The Individual presented the testimony of six witnesses, including his own testimony. See
Transcript of Hearing, Case No. PSH-15-0073 (Tr.).
II. Regulatory Standard
The criteria for determining eligibility for security clearances set forth at 10 C.F.R. Part 710 dictates
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). 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).
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). The regulations further
instruct me 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).
III. Notification Letter and Associated Security Concerns
The Notification Letter cited derogatory information within the purview of one potentially
disqualifying criteria set forth in the security regulations at 10 C.F.R. § 710.8, subsection (l)
(hereinafter referred to as Criterion L).2 DOE Ex. 1. In support of its Notification Letter, the LSO
cited that the Individual admitted that from March 2014 to July 2014, he accessed, viewed, and saved
inappropriate images of a sexual nature on his government computer. DOE Ex. 1 at 3. He also
admitted that he knew he was not permitted to view inappropriate websites on his government
computer. Id.
The Individual does not dispute any of these claims. I find that the allegations are valid and well
supported by the record in this case. See 10 C.F.R. § 710.27(c) (requiring Administrative Judge to
2 Criterion L refers to information indicating that the Individual has “engaged in any unusual conduct or is
subject to any circumstances which tend to show that the individual is 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. Such
conduct or circumstances include, but are not limited to, criminal behavior, a pattern of financial
irresponsibility, conflicting allegiances, or violation of any commitment or promise upon which DOE
previously relied to favorably resolve an issue of access authorization eligibility.” 10 C.F.R. § 710.8(l).
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“make specific findings based upon the record as to the validity of each of the allegations contained
in the notification letter”). I further find that this information regarding the Individual’s accessing
inappropriate images on his government computer adequately justifies the DOE’s invocation of
Criterion L, as it raises significant security concerns because noncompliance with rules, procedures,
guidelines or regulations pertaining to information technology systems may raise security concerns
about an individual's reliability and trustworthiness. See Revised Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information, The White House (December 19, 2005),
Guideline M.
IV. Findings of Fact
The facts of this case are essentially undisputed. Between March 2014 and July 2014, the Individual
accessed and saved inappropriate images on his government computer, in an attempt to find unfitting
pictures of his wife. DOE Ex. 6 at 15; Tr. at 97. These pictures of his wife were taken over 14 years
previously and were lost when the camera was stolen. Tr. at 21, 97. While he did not find pictures
of his wife, the Individual admitted that he accessed other inappropriate images of a sexual nature
and that he knew he was not permitted to use his government computer to do so. DOE Ex. 6 at 32.
V. Administrative Judge’s Analysis
The Adjudicative Guidelines state that “noncompliance with rules, procedures, guidelines or
regulations pertaining to information technology systems may raise security concerns about an
individual's reliability and trustworthiness, calling into question the willingness or ability to properly
protect sensitive systems, networks, and information.” Adjudicative Guideline M at ¶ 39. In all his
statements to DOE officials, the Individual repeated the same explanation, that he had been searching
for 14-year-old pictures of his wife, that a friend had informed him were on the Internet at least two
years prior to 2014.
Under the Adjudicative Guidelines, mitigation of the security concern could occur if:
(a) so much time has elapsed since the behavior happened, or it happened under such
unusual circumstances, that it is unlikely to recur or does not cast doubt on the
individual's reliability, trustworthiness, or good judgment;
(b) the misuse was minor and done only in the interest of organizational efficiency and
effectiveness, such as letting another person use one's password or computer when no
other timely alternative was readily available;
(c) the conduct was unintentional or inadvertent and was followed by a prompt, good-
faith effort to correct the situation and by notification of supervisor.
Adjudicative Guidelines M at ¶ 41. The Individual and his wife testified that at the time he accessed
the pictures, he was under extreme stress. Tr. at 21, 85-87, 91. The Individual was performing major
repairs on their home after their son flooded it; in addition, the Individual was taking difficult college
courses, including Matrix Algebra; and he was working full-time. Tr. at 21, 85-87.
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The Employee Assistance Program Counselor testified on the Individual’s behalf. She stated that the
Individual’s extreme stress level could have led to his behavior of searching for inappropriate pictures
on his government computer. Tr. at 66-67. She also opined that he has learned a valuable lesson and
he has the tools to avoid such behavior in the future. Tr. at 69. She concluded that his risk of engaging
in such behavior again is low. Tr. at 70.
In reviewing all the exhibits in this matter, along with the hearing testimony, it is apparent to me that
the Individual’s account of why he was inappropriately using his government computer has not
wavered. DOE Ex. 5; Tr. at 22, 52. However, I find that his explanation is unbelievable. He
explained that he was searching for 14-year-old pictures that he had been told two years previous to
his search were on the Internet. Tr. at 97: DOE Ex. 4 at 2; DOE Ex. 5 at 15; DOE Ex. 6 at 12.
Although he located no pictures of his wife, he continued to visit prohibited websites on his
government computer over a four-month period. Also making his claim unbelievable were that some
of the over 200 pictures found on his computer were of sexual acts between adults. DOE Ex. 5 at 15.
The Individual has not shown that any of the factors that could mitigate the concern have been met.
His behavior occurred in 2014, only 14 months prior to the Notification Letter’s issuance. The misuse
was not minor and occurred over the space of several months. Finally, the conduct was not
unintentional or inadvertent; nor can I be persuaded that the damage to his home and the difficulty of
his college courses significantly justify his misconduct. Also, the Individual did not make an effort
to correct the situation, nor notify his supervisor, prior to the violation being found by the computer
experts.
Accordingly, I find that the Individual has not resolved the security concerns set forth in the
Notification Letter regarding his accessing inappropriate pictures on his government computer.
Conclusion
For the reasons set forth above, I find that the Individual has not resolved the security concerns under
Criterion L. After considering all the relevant information, favorable and unfavorable, in a
comprehensive common-sense manner, including weighing all the testimony and other evidence
presented at the hearing, I have found that the Individual has not brought forth sufficient evidence to
resolve all of the security concerns at issue. I therefore cannot find that restoring the Individual access
authorization will not endanger the common defense and would be consistent with the national
interest. Accordingly, I have determined that the Individual‘s access authorization should not be
restored at this time. The parties may seek review of this Decision by an Appeal Panel under the
regulations set forth at 10 C.F.R. § 710.28.
Janet R. H. Fishman
Administrative Judge
Office of Hearings and Appeals
Date: December 21, 2015