PSH-16-0007

*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: January 14, 2016 )
) Case No.: PSH-16-0007
__________________________________________)
Issued : June 21, 2016
__________________________
Administrative Judge Decision
__________________________
Wade M. Boswell, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (hereinafter referred to as
“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 fully discussed below, after carefully considering the record before me in
light of the relevant regulations and Adjudicative Guidelines, I have determined that the
individual’s access authorization should not be restored.
I. Background
The individual is employed by the DOE in a position that requires her to hold DOE access
authorization. In January 2015, one of her co-workers, who was also a holder of DOE
access authorization, was arrested. Local police sent an e-mail to their liaison for the DOE
site reporting information on the arrest. This e-mail and the co-worker’s official arrest
report were subsequently transmitted to multiple locations within the DOE complex using
a digital scanner; the scanner did not identify the sender of the information and the
transmitted information (which included, inter alia, the co-worker’s arrest information and
his date of birth) was not encrypted. These transmissions triggered an internal DOE
investigation, which identified the individual as the person that originated these
transmissions. See Exhibit 5. The individual acknowledges having done so.
1 Access authorization is defined as “an administrative determination that an individual is eligible for access
to classified matter or is eligible for access to, or control over, special nuclear material.” 10 C.F.R. § 710.5(a).
Such authorization will be referred to variously in this Decision as access authorization or security clearance.
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The individual was interviewed as part of the internal investigation and, at the
commencement of the interview, she signed an agreement not to disclose the content of the
investigation. Immediately after leaving the interview, the individual telephoned another
DOE employee and discussed the investigation. See Exhibit 5.
Due to concerns about the individual’s conduct which was documented during the internal
investigation, the Local Security Office (LSO) conducted a personnel security interview
(PSI) with the individual in August 2015. See Exhibit 6. Since the PSI did not resolve these
concerns, the LSO informed the individual in a letter dated November 23, 2015
(Notification Letter), that it possessed reliable information that created substantial doubt
regarding her eligibility to hold a security clearance. In an attachment to the Notification
Letter, the LSO explained that the derogatory information fell within the purview of one
potentially disqualifying criterion set forth in the security regulations at 10 C.F.R. § 710.8,
subsection (l) (hereinafter referred to as Criterion L).2 See Exhibit 1.
Upon her receipt of the Notification Letter, the individual exercised her right under the Part
710 regulations by requesting an administrative review hearing. See Exhibit 2. The Director
of the Office of Hearings and Appeals (OHA) appointed me the Administrative Judge in
the case and, subsequently, I conducted an administrative hearing in the matter. At the
hearing, the LSO introduced eight numbered exhibits into the record and presented the
testimony of one witness, a DOE personnel security specialist. The individual introduced
28 lettered exhibits (Exhibits A – CC)3 into the record and presented the testimony of four
witnesses, including that of herself. The exhibits will be cited in this Decision as “Ex.”
followed by the appropriate numeric or alphabetic designation. The hearing transcript in
the case will be cited as “Tr.” followed by the relevant page number.4
II. Regulatory Standard
A. Individual’s Burden
A DOE administrative review proceeding under Part 710 is not a criminal matter, where
the government has the burden of proving the defendant guilty beyond a reasonable doubt.
Rather, the standard in this proceeding places the burden on the individual because it is
designed to protect national security interests. This is not an easy burden for the individual
to sustain. The regulatory standard implies that there is a presumption against granting or
restoring a security clearance. See Department of Navy v. Egan, 484 U.S. 518, 531 (1988)
2 See Section III below.
3 At the request of the individual, a document initially presented by the individual and labelled as Exhibit R
was stricken from the record. The individual’s subsequent submissions were not re-lettered; therefore, the
record contains no Exhibit R. Transcript at 9.
4 OHA decisions are available on the OHA website at www.energy.gov/oha/office-hearings-and-appeals. A
decision may be accessed by entering the case number in the search engine at www.energy.gov/oha/security-
cases.
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(“clearly consistent with the national interest” standard for granting security clearances
indicates “that security determinations should err, if they must, on the side of denials”);
Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th Cir. 1990), cert. denied, 499 U.S. 905 (1991)
(strong presumption against the issuance of a security clearance).
The individual must come forward with evidence to convince the DOE that granting or
restoring his or her 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 individual is afforded a full opportunity to present evidence supporting his or her
eligibility for an access authorization. The Part 710 regulations are drafted so as to permit
the introduction of a very broad range of evidence at personnel security hearings. Even
appropriate hearsay evidence may be admitted. 10 C.F.R. § 710.26(h). Thus, an individual
is afforded the utmost latitude in the presentation of evidence to mitigate the security
concerns at issue.
B. Basis for the Administrative Judge’s Decision
In personnel security cases arising under Part 710, it is my role as the Administrative Judge
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all the relevant evidence, favorable and unfavorable, as to whether the
granting or continuation of a person’s access authorization will not endanger the common
defense and security and is clearly consistent with the national interest. 10 C.F.R.
§ 710.7(a). I am instructed by the regulations to resolve any doubt as to a person’s access
authorization eligibility in favor of the national security. Id.
III. The Notification Letter and the Security Concerns at Issue
As previously noted, the LSO cited one criterion as the basis for suspending the
individual’s security clearance: Criterion L. Criterion L concerns information that an
individual has engaged in conduct “which tends to show that the individual is not honest,
reliable, or trustworthy….” 10 C.F.R. § 710.8(l). Conduct reflecting questionable
judgment, lack of candor, dishonesty, or unwillingness to comply with rules and
regulations raises questions about an “individual’s reliability, trustworthiness and ability
to protect classified information.” See Guideline E of the 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). With respect to Criterion L, the LSO alleges, inter alia, that:
(1) the individual removed an e-mail about her co-worker’s arrest from her supervisor’s
office, without his permission, and transmitted copies of the e-mail, unencrypted, to both
her government and personal e-mail accounts using a government digital scanner; (2) the
individual requested a DOE contractor employee to provide her with the fax number of the
local Rotary Club and, thereafter, attempted to transmit her co-worker’s arrest information
to the Rotary Club using government equipment, while on duty; (3) the individual, while
using a government computer and while on duty, entered the arrested co-worker’s name
and date of birth on a website in order to ascertain any crimes with which he may have
been charged and any fines he may have paid; (4) the individual transmitted copies,
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unencrypted, of the official police report of her co-worker’s arrest to two DOE offices and
several DOE employees who did not have a “need to know” about the arrest; and (5) the
individual breached a non-disclosure agreement she signed as part of an internal DOE
investigation by discussing the investigation with another co-worker. Ex. 1 at 1-2.
In light of the information available to the LSO, the LSO properly invoked Criterion L.
IV. Findings of Fact and Analysis
I have thoroughly considered the record of this proceeding, including the submissions
tendered in this case and the testimony of the witnesses presented at the hearing. In
resolving the question of the individual’s eligibility for access authorization, I have been
guided by the applicable factors prescribed in 10 C.F.R. § 710.7(c)5 and the Adjudicative
Guidelines. After due deliberation, I have determined that the individual’s access
authorization should not be restored. I cannot find that restoring the individual’s DOE
security clearance will not endanger the common defense and security and is clearly
consistent with the national interest. 10 C.F.R. § 710.27(a). The specific findings that I
make in support of this decision are discussed below.
A. Mitigating Evidence
At the hearing, the individual’s testimony was candid and direct. In mitigation of the
security concerns described in the Notification Letter, the individual presented much detail
on certain factual matters where she believed the LSO had erred, as well as arguments
against certain conclusions that the LSO had reached. However, many of the distinctions
argued are, ultimately, not dispositive of the security concerns before me. For example, the
Notification Letter refers to the individual having instructed a DOE contractor to “perform
an internet search” (Ex. 1 at 1) to obtain certain information and, while the DOE contractor
may or may not have performed an internet search to get the information, the individual
argues that she did not request that an internet search be conducted. Tr. at 178, 199.
Consistent with the individual’s contention is an e-mail from the individual to the DOE
contractor instructing the contractor to “call” (Ex. 5 at 80) to get certain information.
Whichever facts are correct (and, in this case, I believe those advocated by the individual
are correct), the underlying security concern is unaffected: Did the individual use
government time and resources (whether it was a telephone or a computer)6 for non-
governmental purposes in such a manner as to evidence doubt about her reliability,
trustworthiness, honesty or judgment?
5 Those factors include the following: the nature, extent, and seriousness of the conduct, the circumstances
surrounding the conduct, to include knowledgeable participation, the frequency and recency of the conduct,
the age and maturity at the time of the conduct, the voluntariness of his participation, the absence or presence
of rehabilitation or reformation and other pertinent behavioral changes, the motivation for the conduct, the
potential for pressure, coercion, exploitation, or duress, the likelihood of continuation or recurrence, and
other relevant and material factors.
6 Government resources in this instance also includes the individual seeking the assistance of a DOE
contractor employee. See DOE Order 203.1 at ¶ 4.f(2).
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In those instances where the individual has contested the LSO’s facts or conclusions, I have
carefully considered the totality of the individual’s testimony, the entirety of the record,
and the arguments presented by both the individual and the LSO in my evaluation and in
reaching the findings of facts set forth below.
B. Administrative Judge Evaluation of the Evidence and Findings of Fact:
Criterion L Security Concerns
Most of the facts cited in the Notification Letter are not contested and, as noted above,
many of those facts that are contested relate to distinctions that are, ultimately, not
significant to the adjudication of the security concerns at issue. Similarly, the individual
and the LSO focused much attention on the nature and scope of personally identifiable
information (PII) and the duties of DOE personnel with respect to PII, and, while those
issues are important and thought provoking,7 they obscure the fundamental national
security concerns presented in this case.
The Notification Letter sets forth four factual bases for the Criterion L security concerns,
each of which will be analyzed separately.
E-mail from Local Police Department. A DOE employee was arrested by local police and,
during the arrest, he identified himself as a DOE employee who had a security clearance.
A police sergeant forwarded information about the arrest (including the name of the
arrested employee, the details of the arrest and alleged criminal behavior, and the
employee’s birthdate) in an e-mail to the chief of the local police department; the police
chief, in turn, forwarded that e-mail with a cover note (collectively, Police E-mail) to his
federal liaison (Liaison or Federal Liaison). Ex. 5 at 42-43. The Federal Liaison contacted
a manager of the local DOE site and advised him of the arrest. The following day, the DOE
7 DOE Order 206.1 refers to the directives of the Office of Management and Budget in defining PII and the
responsibilities of DOE personnel with respect to PII. PII includes a person’s criminal history and the date
of birth. DOE Order 206.1 at ¶ 4.a(1). In this case, the arrested co-worker’s arrest information and date of
birth were both included in the documents that the individual disseminated. The individual’s argument that
information of a single arrest does not constitute a “criminal history” under DOE Order 206.1 is without legal
merit and ignores the clear meaning and intent of the DOE Order. Her arguments that only information
marked as protected or included in a “systems of record” noticed in the Federal Register is entitled to
protection under DOE Order 206.1 evidences a fundamental misreading of the DOE Order and the
distinctions contained therein with respect to PII covered by the Privacy Act and PII not covered by the
Privacy Act. Her arguments that, since arrest records are releasable under her state’s Freedom of Information
Act and are deemed public information by her state, arrest records and information originating in her state
are not subject to protection under DOE Order 206.1 ignores (1) the primacy of a DOE Order with respect to
the protection by DOE of information in its possession and (2) the duty of care required by the DOE Order
with respect to certain personal information notwithstanding that that information may be publicly available
elsewhere (e.g., a person’s date of birth or mother’s maiden name). However, even if I had accepted all of
the individual’s arguments with respect to PII or had found that she mitigated all of the security concerns
with respect to her mishandling of PII, she would have failed to have resolved the security concerns which
are analyzed in this section of the Decision under the subheadings of: E-mail from Local Police Department;
Interaction with DOE Contractor Employee; Dissemination of Official Police Record; and Breach of Non-
Disclosure Agreement.
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manager went to the Liaison’s office and received a printed copy of the Police E-mail.
Tr. at 140-141.
The DOE manager showed the individual, who he supervised, the Police E-mail. The
individual and the arrested employee had an adverse relationship and, based upon
information submitted by the individual into the record, the arrested employee had been
named by the individual in complaints8 that she had filed with the DOE Inspector General
(IG). Ex. U at 1, 4, 6, 8; Tr. at 10-11. The individual testified that she believed that DOE
management had been “covering up” behavior by the arrested employee “for years” and
that she believed management would not take appropriate actions with respect to his arrest.
Id. at 155-156, 165, 193.
On the same day that the DOE manager showed the Police E-mail to the individual, the
individual entered the manager’s office while he was at lunch and retrieved the Police
E-Mail. Id. at 164, 175, 192-193. Before returning it, she scanned the Police E-mail on a
digital sender and e-mailed it to herself at both her government and personal e-mail
accounts (as well e-mailing it to other locations). Id. at 175, 192-193. She acknowledges
that she did not have her supervisor’s permission to access or send the Police E-mail,
although she also states that she does not believe she needed his permission to do so. Id. at
175-176, 195. She justifies her actions based upon her needing the Police E-mail in order
to report her co-worker’s arrest to the DOE and upon the fact that arrest records are public
information in their jurisdiction. Id. at 135, 175, 193.
While the individual is correct that arrest records are public documents in their jurisdiction,
the Police E-mail is not an arrest record. It is an e-mail from the chief of the local police
department to his Federal Liaison, which was provided to the DOE manager for official
government purposes.9 Ex. 5 at 42-43; Tr. at 138-140. The Police E-mail, once in the
possession of the DOE manager, was a federal government document. The individual had
no authority to take possession of the document or to convert the document to one that she
could use personally, which she accomplished by e-mailing it her own e-mail accounts.
Such conduct, on its face, demonstrates unreliability and untrustworthiness and falls clearly
within the security concerns described by Criterion L. See 10 C.F.R. § 710.8(l).
The individual attempts to justify her behavior by pointing to the obligations of those
holding access authorization to report certain events, whether those events relate to
themselves or to another holder of access authorization. In mitigation of her conduct, she
argues that, since she holds access authorization, she is required to report the arrest of
another holder of access authorization. Tr. at 156. Further, she argues that, since she had
8 Based on at least one exhibit submitted by the individual, actions of the arrested co-worker are also at issue
in a complaint filed by the individual with the U.S. Equal Opportunity Commission. See Ex. O at 3.
9 The Federal Liaison, who was the addressee of the Police E-mail, testified at the hearing at the request of
the individual. In his testimony, he noted that under the state laws of their jurisdiction the individual’s official
arrest record was publicly available (without redaction), but that the Police E-mail would not be a publicly
available document under their state laws even though it included information about an arrest. Tr. at 138-
140.
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concluded that her management had ignored past misconduct of the arrested employee, she
reasonably believed management would do so in the case of his arrest as well. Id. at 155-
156, 165, 193. Essentially, she suggests that she needed to collect evidence of the arrest.
Id. at 182. In making this argument, the individual dangerously inflates the obligations that
a holder of access authorization has to report the conduct of others. The obligation is to
report known information, not to investigate. The individual testified that she orally
reported the arrest of her co-worker to her facility’s security officer, who was an
appropriate authority for her to report the information. Id. at 205-206. Having reported the
information to an appropriate authority within her organization, she had fulfilled her
reporting obligation. Once the information is appropriately reported within the DOE
organization, the responsibility is then upon the DOE security organization, which is
staffed with properly trained personnel, to evaluate the information and, if necessary,
investigate it. If the individual is sincere in her argument that she was merely trying to
perform her own obligations as a holder of access authorization, she would have
disengaged after reporting the arrest information and allowed the DOE security
organization to perform its function. Further, the individual presented no viable explanation
as to how properly reporting her co-worker’s arrest justified her assuming ownership of a
federal government document (i.e., the Police E-mail), which she did by sending it to her
personal e-mail account. Such behavior reflects poor judgment and dishonesty and
breached her inherent fiduciary obligations as an employee of the federal government.
Cf. Adjudicative Guidelines at Guideline E, ¶ 16(d)(1).
Based on the foregoing, I find that the individual has not resolved the security concerns
associated with Criterion L arising from actions with respect to the Police E-mail.
Interaction with DOE Contractor Employee. The day after the individual learned of her
co-worker’s arrest, the individual requested a DOE contractor employee to provide her
with the fax number of the local Rotary Club; the individual then attempted to fax the
Police E-mail to the local Rotary Club using a federal government scanner. Tr. at 166-167,
199, 203. Due to a technical error, the fax failed. Id. at 199.
Other than a general comment that she thought people needed to know about her co-
worker’s arrest and felt that it was appropriate to disseminate information about the arrest
since it was public information, the individual did not provide (nor could she) any viable
justification for her actions.10 Id. at 200. But for a technical error, she would have
disseminated the Police E-mail to a non-government entity. She had no authority to possess
the Police E-mail, as noted above, and, therefore, had no authority to disseminate it. There
is no possible argument that the individual had a duty as a holder of access authorization
to report information about other holders of access authorization to non-federal entities.
Federal employees are required to use government time and resources11 for federal
10 At the hearing, the individual acknowledged that this had been a bad choice and that, in retrospect, she
was glad that the transmission had failed. Tr. at 200-201.
11 Federal resources, in this case, include both the time of the federal contractor and the government-owned
equipment. Cf. DOE Order 203.1 (inappropriate uses of government resources include seeking help from
Government employees or contractor personnel in pursuit of personal projects).
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purposes; there was no federal purpose in reporting the arrest of a DOE employee to the
local Rotary Club. See DOE Order 203.1. This behavior is more akin to vigilantism than
to the prudence expected of federal workers while on duty, on government premises and
using federal equipment, and demonstrates poor judgment, unreliability and
untrustworthiness. See 10 C.F.R. § 710.8(l).
Although the individual acknowledged that it was a lapse of judgment for her to attempt to
disseminate information about her co-worker’s arrest to the local Rotary Club, she attempts
to deflect the responsibility for this behavior by stating that the idea to disseminate the
arrest information to the local Rotary Club originated with the contractor. Tr. at 166.
However, faxing a non-public document containing a co-worker’s arrest information
outside of the federal government (whether or not the transmission was successful) on
government time, using government equipment, was a monumental lapse in judgment by
a mature professional with over three decades of experience and any suggestion by the
individual that she could have been influenced into committing such inappropriate behavior
further demonstrates unreliability and untrustworthiness. See 10 C.F.R. § 710.8(l). The
presentation by the individual of this argument in mitigation of the Criterion L security
concerns does not mitigate the concerns, but reinforces them.
In a second interaction with the contractor, the individual admitted to instructing the
contractor to access a website to look-up the co-worker’s arrest record. Tr. at 202.
Subsequently, the individual entered the co-worker’s name, date of birth and arrest report
number on a website provided to her by the contractor in order to ascertain whether there
were any criminal charges filed against their co-worker and whether any fines had been
paid by their co-worker. Id. at 202-203. This was also done while on government time and
using a government computer. Id. at 203. The individual justifies this behavior based on
her needing to know the details and status of her co-worker’s arrest because she thought
that those factors would influence what, if any, actions her management might take with
respect to the individual’s arrest. Ex. 6 at 65; Tr. at 202-203. However, as noted above,
investigating information about one’s co-workers (even if it may be related to security
concerns) is the jurisdiction of management and personnel security, not self-assigned co-
workers. Cf. Adjudicative Guidelines at Guideline E, ¶ 16(d)(4).
At times, the individual had functioned as her facility’s security representative; however,
she acknowledged that, even in that capacity, her obligation would have been limited to
reporting the information she received to higher management, not independently
investigating it. Tr. at 204-206. While information that she and the contractor sought to
discover in their internet search may have been of some personal interest to them, it was
not in fulfillment of the individual’s government responsibilities and, therefore, was an
inappropriate use of government time and resources and reflected poor judgment,
unreliability and untrustworthiness. Cf. Adjudicative Guidelines at Guideline E, ¶ 16(d)(4).
Based on the foregoing, I find that the individual has not resolved the security concerns
associated with Criterion L arising from her interactions with a DOE contractor employee
with respect to their arrested co-worker.
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Dissemination of Official Police Report. Approximately four days after first learning of
her co-worker’s arrest, the individual drove to the local police department and obtained the
official police report of her co-worker’s arrest. Tr. at 176, 196. The individual credibly
established that the report was available to any citizen of their state requesting it and, under
state law, information such as an arrestee’s name, address and birthdate is not redacted. Id.
at 115-119, 124-126. Local law enforcement officers corroborated this practice. Id. at 125.
Therefore, the individual had the right to obtain and possess the police report for her own
personal use; however, the individual conflates her personal right to possess the police
report with her right to distribute it within DOE using government-owned equipment and
while on government time.
Subsequent to receiving a copy of the official police report on her co-worker’s arrest, the
individual transmitted it, unencrypted, by use of a government scanner to at least four of
her co-workers. Id. at 197. She disagrees with the LSO’s judgment that those co-workers
did not have a “need to know” about the arrest of one of their colleagues. She argues that
“need to know” is relevant to classified documents and that the arrest record is not
classified or labeled in any way to prohibit its distribution. Id. at 197-198. She also argues
that the recipients of her transmission needed to know about the behavior of the co-worker
which led to his arrest and to know the “kind of person that he was.” Id. at 177, 198-199.
However, the individual makes no viable arguments to connect her judgment that certain
co-workers should know about their co-worker’s arrest with the performance of her duties
as a federal government employee. She attempts to connect her actions to her obligation as
an access authorization holder’s obligation to report certain security events relating to other
holders of access authorization. Id. at 156. However, this ignores that the reporting
obligation is a narrow obligation and that she fulfilled it several days earlier when she
notified her facility’s security representative of the arrest; any concern that her initial
reporting had been insufficient or would be “covered-up” should have been resolved when
she transmitted the official police report (contemporaneously with the transmission to her
four co-workers) to a DOE personnel security office and the arrested employee’s upper
level manager. Id. at 176, 196. The individual introduced no viable information into the
record that substantiated any official need of her co-workers to know of the arrest of their
other co-worker.12 Taking it upon herself to personally decide who within the DOE
complex should be informed about her co-worker’s arrest usurps authority that properly
belonged to DOE security and DOE management. Cf. Adjudicative Guidelines at Guideline
E, ¶ 16(d)(2) (disruptive or other inappropriate behavior in the workplace).
As noted above, I find no connection between the individual’s transmission of the police
report to co-workers with the performance of her official duties. Use of government
resources (e.g., the government scanner used to transmit the police report) is limited to the
12 The individual testified that some of her co-workers to whom she transmitted the information were
witnesses to the events described in her complaint to the IG and, therefore, needed to know about the arrest.
Tr. at 160. This argument ignores that the co-worker’s arrest was not related to the substance of her IG
complaint (other than in the broadest sense that both related to the co-worker’s “ethics”) and that the
individual had made the IG aware of the co-worker’s arrest by transmitting to the IG both the Police E-Mail
and the official police report (on separate occasions). Id. at 176.
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performance of official government functions. As such, use of government equipment by
the individual to transmit her co-worker’s police report to other co-workers demonstrates
poor judgment and lack of reliability.
The individual argues that government employees are permitted de minimis personal use
of government owned equipment (Ex. 2 at 2; Ex. BB at 10); however, de minimis personal
use does not permit inappropriate use of government equipment. The co-worker’s name,
arrest information,13 and date of birth, which constitutes PII under DOE orders, were in the
documents transmitted by the individual. Ex. 5 at 41-49. See DOE Order 206.1 at ¶ 4.a(1).
A DOE employee in the performance of their government duties could not have digitally
transmitted such documents to people of their own choosing nor could he or she have
transmitted such documents (even in the course of legitimate federal activates) without
encryption or other proper protection. See DOE Order 206.1. A DOE employee cannot
engage in such activities as a personal matter while using government time and equipment
and then claim protection of the workplace rules that permit de minimis personal use of
government equipment. See DOE Order 203.1.
Based on the foregoing, I find that the individual has not resolved the security concerns
associated with Criterion L arising from actions with respect to dissemination of the official
police report of her co-worker’s arrest.
Breach of Non-Disclosure Agreement. As noted above, the individual distributed, without
encryption, the official police report of her co-worker’s arrest within the DOE complex via
a digital scanner. This scanner did not identify the sender of the report, so the report
appeared to those receiving it as being sent anonymously. This triggered an internal DOE
investigation. See Ex. 5 at 2. The individual interprets the internal investigation as unfairly
targeting her and as further evidence that management sought to protect her arrested co-
worker, ignoring the fundamental role she played by “anonymously” sending one or both
of the Police E-mail and the official police report (each containing information about a
DOE employee’s criminal arrest and other personal information, such as his date of birth)
to at least seven locations in the DOE complex. Failure to anticipate the reaction to her
“anonymous” distribution of her co-worker’s arrest information and other PII demonstrates
poor judgment. Cf. Adjudicative Guidelines at Guideline E, ¶ 16(d)(2) (disruptive or other
inappropriate behavior in the workplace).
Those conducting the internal investigation, interviewed the individual and, at the
commencement of that interview, the individual signed a non-disclosure form agreeing that
she would not disclose the content of the investigation to anyone. Ex. 5 at 100. According
to the individual, the investigators were keen to discover certain details about the
dissemination of information about the co-worker’s arrest and she was uncertain about
whether she had sent the Police E-mail to a certain person. Tr. at 184. When the individual
left the interview, she went to her car and, within fifteen to twenty minutes of the
13 DOE Order 206.1 describes PII as including information about an individual’s “criminal history.” The
individual argues that information about a single arrest does not constitute a “criminal history.” Tr. at 187-
191. This argument ignores the plain intent and language of DOE Order 206.1 and is without legal merit.
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conclusion of the interview, called the other person and discussed the investigation. Id. at
185. The individual argues that she did so only in order to obtain information sought by
the investigators and to further the investigation and that she had not discussed the “details”
of the investigation. Id. At the hearing, she focused upon telephone records which
evidenced that her conversation with this other person had been a four-minute
conversation. Id.
Understanding confidentiality requirements and maintaining confidentiality are paramount
to the protection of national security. In this instance, the individual beached confidentiality
within minutes of exiting an interview during which she had agreed, in writing, to maintain
confidentiality. Similar to her arguments discussed above in which she posited her
obligation to investigate the arrest of her co-worker, the individual argues with respect to
the internal investigation that she needed to speak to this other person in order to obtain
information sought by the investigators. Id. at 184. Again, she is attempting to conduct her
own investigation, as opposed to providing the information known to her and allowing
those tasked with the investigation to perform their responsibilities. Failure to maintain
confidentiality could endanger the success of an investigation.
While I accept her argument that she was, in good faith, trying to assist the investigators
by gathering information that she did not remember, that she would do so demonstrates a
basic misunderstanding of fundamental security protocols. Not only did she breach
confidentiality, but she seemed not to have recognized that she had done so until six months
later when she was questioned about it by the LSO during the PSI. Ex. 6 at 94-97. While
she does not deny discussing the internal investigation in the telephone call she had with
the other person immediately after leaving the interview, she attempts to minimize the
magnitude of her breached by focusing on the call being only four minutes in length. Tr. at
185. Her written non-disclosure agreement was to not disclose the content of the
investigation; it was not to limit her disclosures to what could be relayed in four minutes.
To argue that a security concern arising from her breach of a non-disclosure agreement is
mitigated by the brevity of her breaching communication demonstrates a fundamental lack
of understanding of security requirements and, making such an argument, exacerbates
security concerns about the individual’s judgement and reliability. See 10 C.F.R.
§ 710.8(l).
Based on the foregoing, I find that the individual has not resolved the security concerns
associated with Criterion L arising from her breach of the non-disclosure agreement that
she signed in conjunction with the internal DOE investigation.
Whole-Person Concept. The individual argues that the actions cited in the Notification
Letter occurred over the course of a brief period of time, which followed an extreme period
of distress for her in the workplace which she seems to attribute to her arrested co-worker.
In light of her otherwise unblemished career of over thirty years, she argues her behavior
is mitigated by reference to the “whole-person” concept incorporated in Part 710 and the
Adjudicative Guidelines. Ex. BB; Tr. at 217.
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While I agree that the events noted in the Notification Letter all occurred within a period
of a couple weeks, the egregiousness of the individual’s behavior in the context in which
it occurred supports a whole-person assessment of questionable judgment and an inability
to properly safeguard information on the part of the individual. See Adjudicative
Guidelines at Guideline E at 16 ¶ d(1), (2) and (3).
For the reasons discussed above, I find the individual has not resolved the security concerns
associated with Criterion L.
V. Conclusion
In the above analysis, I have found that there was sufficient derogatory information in the
possession of the DOE that raises serious 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 the security concerns associated with Criterion L. Accordingly, I have determined
that the individual’s access authorization should not be restored. The parties may seek
review of this Decision by an Appeal Panel under the regulations set forth at 10 C.F.R.
§ 710.28.
Wade M. Boswell
Administrative Judge
Office of Hearings and Appeals
Date: June 21, 2016