PSH-23-0062

*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: March 1, 2023 ) Case No.: PSH-23-0062
)
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Issued: July 17, 2023
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Administrative Judge Decision
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Phillip Harmonick, Administrative Judge:
This Decision concerns the eligibility of XXXXXXXXXXXXX (the Individual) to hold an access
authorization under the United States Department of Energy’s (DOE) regulations, set forth at 10
C.F.R. Part 710, “Procedures for Determining Eligibility for Access to Classified Matter and
Special Nuclear Material.”1 As discussed below, after carefully considering the record before me
in light of the relevant regulations and the National Security Adjudicative Guidelines for
Determining Eligibility for Access to Classified Information or Eligibility to Hold a Sensitive
Position (June 8, 2017) (Adjudicative Guidelines), I conclude that the Individual should not be
granted access authorization.
I. BACKGROUND
DOE first granted the Individual access authorization in 2005 in connection with his work for a
DOE contractor (First Contractor). Exhibit (Ex.) 12 at 48–49, 67–68.2 The Individual was
employed by the First Contractor from 2005 until April 2022. Ex. 11 at 16–17. On April 4, 2022,
the local security office (LSO) received documentation from the First Contractor indicating that
the Individual had resigned in lieu of termination after the First Contractor determined that he had
“surreptitiously videotap[ed] an individual in a state of undress in the [] men’s chang[ing]
room . . . .” Ex. 7. The First Contractor provided supplemental documentation to the LSO
concerning the cause for the Individual’s resignation, including a signed statement in which the
Individual admitted to having recorded men in a locker room without their knowledge on previous
occasions. Ex. 6 at 9.
1 The regulations define access authorization 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). This
Decision will refer to such authorization as access authorization or security clearance.
2 The internal pagination of numerous exhibits offered by the local security office does not correspond to the number
of pages included in the exhibits. For example, the pagination of Ex. 12 does not correspond to the total number of
pages due to an unnumbered first page. This Decision cites to pages in the order in which they appear in exhibits
without regard for their internal pagination.
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In September 2022, a DOE contractor (Second Contractor) hired the Individual. Ex. 11 at 13. The
Individual submitted a Questionnaire for National Security Positions (QNSP) in connection with
seeking access authorization. Id. at 39–40. The LSO subsequently issued the Individual a letter of
interrogatory (LOI) concerning the circumstances that led to his separation from his employment
with the First Contractor. Ex. 8. The information that the Individual provided in response to the
LOI did not resolve the LSO’s concerns related to the matter. See Ex. 4 (summarizing the LSO’s
2022 review of the Individual’s eligibility for access authorization).
On November 22, 2022, the Individual met with a DOE-contracted psychologist (DOE
Psychologist) for a psychological assessment. Ex. 9 at 2. On December 5, 2022, the DOE
Psychologist issued the results of the psychological assessment (Report) in which she opined that
the Individual met sufficient criteria for a diagnosis of Voyeuristic Disorder under the Diagnostic
and Statistical Manual of Mental Disorders – Fifth Edition (DSM-5), and that this condition could
impair the Individual’s judgment, stability, reliability, or trustworthiness. Id. at 10–11.
The LSO issued the Individual a letter notifying him that it possessed reliable information that
created substantial doubt regarding his eligibility for access authorization. In a Summary of
Security Concerns (SSC) attached to the letter, the LSO explained that the derogatory information
raised security concerns under Guideline E (Personal Conduct) and Guideline I (Psychological
Conditions) of the Adjudicative Guidelines. Ex. 1.
The Individual exercised his right to request an administrative review hearing pursuant to
10 C.F.R. Part 710. Ex. 2. The Director of the Office of Hearings and Appeals (OHA) appointed
me as the Administrative Judge in this matter, and I subsequently conducted an administrative
hearing. The LSO submitted twelve exhibits (Exs. 1–12). The Individual submitted one exhibit
(Ex. A). The Individual testified on his own behalf and offered the testimony of a Licensed
Marriage and Family Therapist (LMFT). Hearing Transcript (Tr.) at 3, 11, 74. The LSO offered
the testimony of the DOE Psychologist. Id. at 3, 99
II. THE NOTIFICATION LETTER AND THE ASSOCIATED SECURITY CONCERNS
The LSO cited Guideline E of the Adjudicative Guidelines as the first basis for its substantial doubt
regarding the Individual’s eligibility for access authorization. Ex. 1. Guideline E indicates that:
Conduct involving questionable judgment, lack of candor, dishonesty, or unwillingness
to comply with rules and regulations can raise questions about an individual’s
reliability, trustworthiness, and ability to protect classified or sensitive information. Of
special interest is any failure to cooperate or provide truthful and candid answers during
national security investigative or adjudicative processes.
Adjudicative Guidelines at ¶ 15.
The SSC cited the Individual’s resignation from his employment with the First Contractor in lieu
of termination after the First Contractor determined that the Individual had surreptitiously recorded
men in a state of undress in a locker room on multiple occasions. Ex. 1. The LSO’s allegation that
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the Individual engaged in inappropriate behavior that supports a whole-person assessment of
questionable judgment, untrustworthiness, unreliability, lack of candor, or unwillingness to
comply with rules and regulations, and which creates a vulnerability to exploitation, manipulation,
or duress, justifies its invocation of Guideline E. Adjudicative Guidelines at ¶ 16(d)–(e).
The LSO cited Guideline I of the Adjudicative Guidelines as the second basis for its substantial
doubt regarding the Individual’s eligibility for access authorization. Ex. 1. “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.” Adjudicative
Guidelines at ¶ 27. The SSC cited the DOE Psychologist’s opinion that the Individual met
sufficient diagnostic criteria for a diagnosis of Voyeuristic Disorder under the DSM-5. Ex. 1. The
LSO’s citation to the opinion of the DOE Psychologist that the Individual has a psychological
condition that could impair his judgment, stability, reliability, or trustworthiness justifies the
LSO’s invocation of Guideline I. Adjudicative Guidelines at ¶ 28(b).
III. REGULATORY STANDARDS
A DOE administrative review proceeding under Part 710 requires me, as the Administrative Judge,
to issue a Decision that reflects my comprehensive, common-sense judgment, made after
consideration of all of 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). The regulatory
standard implies that there is a presumption against granting or restoring a security clearance. See
Dep’t of Navy v. Egan, 484 U.S. 518, 531 (1988) (“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) (strong
presumption against the issuance of a security clearance).
An individual must come forward at the hearing with evidence 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). An 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. Id.
at § 710.26(h). Hence, an individual is afforded the utmost latitude in the presentation of evidence
to mitigate the security concerns at issue.
IV. FINDINGS OF FACT
DOE granted the Individual access authorization in 2005 in connection with his work for the First
Contractor. Ex. 12 at 48–49, 67–68. On March 28, 2022, the Individual’s cellphone was
discovered, partially covered by a towel, recording video in the men’s locker room at the DOE
facility at which the Individual worked. Ex. 6 at 6. The First Contractor summoned law
enforcement officers who interviewed the Individual; however, he was never charged with a crime.
Id.; Tr. at 19–21.
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On March 29, 2022, the Individual submitted a statement to the First Contractor in which he
admitted to having surreptitiously recorded another man he observed in the locker room because
he “admired his physique.” Ex. 6 at 9. The Individual represented that he “did not realize [he]
would see him naked.” Id. The Individual stated that he had previously recorded men in the locker
room “probably less than 10 times.” Id. The Individual indicated that he had not recorded anyone
at a commercial gym at which he exercised outside of the DOE facility because he “didn’t think
[he] could record anyone there without them knowing.” Id.
On March 31, 2022, the First Contractor convened a panel to consider the Individual’s conduct.
Id. at 3. The panel concluded that the Individual had violated the First Contractor’s policies related
to use of electronic devices and sexual harassment. Id. at 8. On April 1, 2022, the Individual
resigned from his employment with the First Contractor in lieu of termination. Ex. 7 at 3.
In September 2022, the Second Contractor hired the Individual. Ex. 11 at 13. The Individual
submitted a QNSP in connection with seeking access authorization. Id. at 39–40. On October 20,
2022, the LSO issued the Individual the LOI. Ex. 8. In his response to the LOI, the Individual
represented that he had recorded the man in the locker room in March 2022 because he “admired
his physique” and “wanted to have a memory to reflect on for inspiration” while pursuing his
fitness goals. Id. at 7. The Individual denied any sexual motivation for his conduct and denied that
he knew that his conduct violated any rules, regulations, or policies. Id. at 2, 4; but see Tr. at 55–
56 (admitting at the hearing that he knew that secretly recording men in the locker room violated
a law, rule, or policy when he engaged in the conduct).
On November 22, 2022, the Individual met with the DOE Psychologist for a psychological
assessment. Ex. 9 at 2. During the clinical interview, the Individual admitted to first having secretly
recorded a man in the locker room at the DOE site in 2018, and to having done so “four or five
times . . .” in total. Id. at 6. The Individual denied any sexual motivation for his conduct. Id. The
Individual indicated that he recorded men in the locker room at the DOE facility and not the
commercial gym that he attended because the commercial gym had “surveillance cameras so he
thought he would be caught.” Id.
On December 5, 2022, the DOE Psychologist issued her Report in which she concluded that the
Individual met sufficient criteria for a diagnosis of Voyeuristic Disorder under the DSM-5, and
that this condition impaired the Individual’s judgment, reliability, and trustworthiness. Id. at 10–
11. The DOE Psychologist recommended that the Individual enter into treatment with a licensed
mental health professional with appropriate knowledge concerning treatment of Voyeuristic
Disorder. Id. at 10.
In February 2023, the Individual enrolled in counseling with the LMFT. Tr. at 40. The Individual
has met with the LMFT on an at least monthly basis since that time. Id. The LMFT has treated the
Individual using a strategic family therapy model in which she and the Individual discuss how his
values and family history influence his day-to-day life, how he has sought to satisfy “unmet needs”
through inappropriate behaviors, and how he can make more appropriate choices by recognizing
his unmet needs and the beliefs that interfere with meeting them. Id. at 81. According to the LMFT,
the Individual has been an active participant in therapy who has “made great progress” and is
“more accepting of himself.” Id. at 78, 80, 83.
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The Individual testified at the hearing that he is a bisexual man and that his sexuality had been a
secret that he had “always guarded very [] closely.” Id. at 17. The Individual indicated that he had
been “raised in a very strict and very religious household,” and that his parents had not been
receptive to his “gay brother” expressing his sexual orientation. Id. at 11, 25. The Individual
indicated that he had resisted acknowledging his sexual orientation because it did not conform to
the stereotype of masculinity that he had developed through his upbringing and because he was
“scared” of how his family would respond. Id. at 25–26.
The Individual claimed that “everything that [he] answered was truthful” in connection with the
First Contractor’s investigation of his March 2022 conduct, but admitted that he had intentionally
“omit[ted] [] facts” during the investigation because his sexual orientation “was something that
[he] didn’t want in the public and [] wasn’t ready to face.” Id. at 20. The Individual claimed that
he told his wife, members of his immediate family, and some of his friends about his sexual
orientation. Id. at 21, 29, 34, 59. However, the Individual provided contradictory testimony
concerning when he purportedly made this disclosure to his wife. Compare id. at 21 (indicating
that after meeting with the First Contractor and law enforcement in March 2022 concerning his
misconduct he “went home, had the hardest discussion I’ve ever had to have with anybody[] with
my wife . . . and that’s when I disclosed to her that I was bisexual”) with id. at 33–34 (stating that
he had not told anyone about his bisexuality prior to the clinical interview with the DOE
Psychologist in December 2022 and answering “no” in response to a question as to whether he had
disclosed his bisexuality to his wife prior to the clinical interview).
The Individual testified that he and his wife separated in February 2023 after he revealed his
bisexuality to her and amicably divorced sometime after. Id. at 42–43, 61. The Individual denied
having recorded anyone without their knowledge since March 2022. Id. at 38. The Individual
claimed that, through his treatment with the LMFT, he had accepted himself and had been “able
to move forward and make sure [his mistakes would not] happen again.” Id. at 41–42. The
Individual represented that, although he previously feared the disclosure of his sexual orientation,
he was no longer at risk of blackmail or coercion because “[t]he secret’s out . . . .” Id. at 69–70.
The DOE Psychologist opined that, based on the Individual’s self-described acceptance of his
sexual orientation and her belief that the Individual’s voyeurism was a means of satisfying his
repressed sexuality rather than his “primary sexual object,” she no longer believed that the
Individual met the diagnostic criteria for Voyeuristic Disorder. Id. at 102–03, 105, 108. She further
opined that his risk of repeating voyeuristic behavior was “low to very low” and that his prognosis
is “good.” Id. at 103.
V. ANALYSIS
A. Guideline E
Conditions that could mitigate security concerns under Guideline E include:
(a) the individual made prompt, good-faith efforts to correct the omission,
concealment, or falsification before being confronted with the facts;
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(b) the refusal or failure to cooperate, omission, or concealment was caused or
significantly contributed to by advice of legal counsel or of a person with
professional responsibilities for advising or instructing the individual specifically
concerning security processes. Upon being made aware of the requirement to
cooperate or provide the information, the individual cooperated fully and truthfully;
(c) the offense is so minor, or so much time has passed, or the behavior is so infrequent,
or it happened under such unique circumstances that it is unlikely to recur and does
not cast doubt on the individual’s reliability, trustworthiness, or good judgment;
(d) the individual has acknowledged the behavior and obtained counseling to change
the behavior or taken other positive steps to alleviate the stressors, circumstances,
or factors that contributed to untrustworthy, unreliable, or other inappropriate
behavior, and such behavior is unlikely to recur;
(e) the individual has taken positive steps to reduce or eliminate vulnerability to
exploitation, manipulation, or duress;
(f) the information was unsubstantiated or from a source of questionable reliability;
and,
(g) association with persons involved in criminal activities was unwitting, has ceased,
or occurs under circumstances that do not cast doubt upon the individual’s
reliability, trustworthiness, judgment, or willingness to comply with rules and
regulations.
Adjudicative Guidelines at ¶ 17.
The Individual secretly recorded men in states of undress at the DOE facility from 2018 to 2022,
only stopping when the First Contractor discovered his conduct and the Individual resigned his
employment. As the Individual did not come forward before being discovered, and even then
denied the true motivations for his conduct and that he knew that he was violating laws, rules, or
procedures, I find that the Individual did not make prompt, good faith efforts to correct his
concealment and that the first mitigating condition is inapplicable. Id. at ¶ 17(a).
The Individual has not asserted that his conduct was influenced by the advice of legal counsel, and
thus the second mitigating condition is inapplicable. Id. at ¶ 17(b).
The Individual has acknowledged that he acted wrongly in secretly recording men in the locker
room and has obtained counseling related to the behavior. He has also asserted that the conduct
occurred under unique circumstances because of his repressed sexuality and is unlikely to recur
now that he has accepted his bisexual identity. While I accept that the Individual is unlikely to
attempt to record men in states of undress in a DOE facility again, I am not convinced that he will
refrain from other forms of inappropriate self-gratifying behavior in the future if he believes that
he can do so without detection.
In reaching the aforementioned conclusion, I have been guided by the factors concerning the
application of the Adjudicative Guidelines listed in 10 C.F.R. § 710.7(c). Specifically, the
Individual committed the misconduct repeatedly over about four years, the Individual’s
misconduct showed serious disregard for laws, rules, and regulations, the Individual was a mature
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adult who had possessed access authorization for 13 years when he first began secretly recording
men in the locker room, the Individual chose to record men in the locker room at the DOE site
rather than at the commercial gym he attended because he believed that he was at a lower risk of
being caught, and the Individual insisted at the hearing that he merely omitted facts concerning his
misconduct and did not acknowledge his untruthfulness in connection with the investigation of his
misconduct. The Individual’s calculated decision to engage in misconduct at a DOE site due to
lower risk of detection, prioritization of his desires over compliance with rules and regulations
despite being a mature adult with over a decade of experience as a clearance holder, the extent and
seriousness of his misconduct, and his current denial of his untruthfulness even after having
received counseling lead me to believe that the Individual will not act responsibly in the future and
that he will likely prioritize personal gratification and avoiding discipline over his obligations as a
clearance holder. For these reasons, I find the third and fourth mitigating conditions inapplicable.
Adjudicative Guidelines at ¶ 17(c)–(d).
The Individual claimed that he has eliminated any risk of manipulation that his conduct might have
presented by disclosing his bisexuality to his family and close friends. However, the Individual
failed to present testimony or evidence from persons to whom he allegedly shared his workplace
misconduct or sexual orientation who could have corroborated his testimony. Moreover, the
Individual’s testimony concerning when he allegedly shared his bisexuality with his wife was
contradictory and reflected negatively on his credibility. In light of the Individual’s contradictory
testimony and the lack of corroborating evidence from members of his family as to his having
disclosed his sexual orientation or workplace misconduct to them, I cannot conclude that the
Individual has fully shared this information with members of his family and friends to whom he is
close who might disapprove. Thus, I cannot conclude that he has resolved his susceptibility to
manipulation from disclosure of his recordings of men in the locker room at the DOE site.
Therefore, the Individual has not demonstrated the applicability of the fifth mitigating condition.
Id. at ¶ 17(e).
The sixth mitigating condition is inapplicable because the Individual does not deny that he
committed the misconduct, and the LSO did not rely on sources of questionable reliability. Id. at
¶ 17(f). The final mitigating condition is inapplicable because the LSO did not allege that the
Individual associated with persons engaged in criminal activity. Id at ¶ 17(g).
Having concluded that none of the mitigating conditions are applicable, I find that the Individual
has not resolved the security concerns asserted by the LSO under Guideline E.
B. Guideline I
Conditions that could mitigate security concerns under Guideline I include:
(a) the identified condition is readily controllable with treatment, and the individual
has demonstrated ongoing and consistent compliance with the treatment plan;
(b) the individual has voluntarily entered a counseling or treatment program for a
condition that is amenable to treatment, and the individual is currently receiving
counseling or treatment with a favorable prognosis by a duly qualified mental
health professional;
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(c) [a] recent opinion by a duly qualified mental health professional employed by, or
acceptable to and approved by, the U.S. Government [indicates] that an individual’s
previous condition is under control or in remission, and has a low probability of
recurrence or exacerbation;
(d) the past psychological/psychiatric condition was temporary, the situation has been
resolved, and the individual no longer shows indications of emotional instability;
and,
(e) there is no indication of a current problem.
Id. at ¶ 29.
The Individual voluntarily entered treatment for Voyeuristic Disorder, the condition is controllable
with treatment which the Individual is receiving, and, according to the LMFT, he is compliant with
the treatment program. The DOE Psychologist opined at the hearing that the Individual no longer
meets sufficient diagnostic criteria for a diagnosis of Voyeuristic Disorder and that he is at low
risk of engaging in voyeuristic behavior in the future. Accordingly, the Individual has established
the applicability of the first four mitigating conditions under Guideline I. Id. at ¶ 29(a)–(d).
For the aforementioned reasons, I find that the Individual has resolved the security concerns
asserted by the LSO under Guideline I.
VI. CONCLUSION
In the above analysis, I found that there was sufficient derogatory information in the possession of
DOE to raise security concerns under Guideline E and Guideline I of the Adjudicative Guidelines.
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 find that the Individual has brought forth sufficient evidence to resolve the security
concerns set forth in the Summary of Security Concerns under Guideline I. However, the
Individual has not brought forth sufficient evidence to the resolve the security concerns set forth
in the Summary of Security Concerns concerning Guideline E. Accordingly, I have determined
that the Individual’s should not be granted access authorization. This Decision may be appealed in
accordance with the procedures set forth at 10 C.F.R. § 710.28.
Phillip Harmonick
Administrative Judge
Office of Hearings and Appeals