Security Clearance Concerns and Handling Protected Information

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By John V. Berry, Esq. & Todd Hull, www.berrylegal.com

Frequently, handling protected information or classified and other sensitive government information can become an issue in security clearance cases for government contractors and federal employees. This article discusses the issues involving Guideline K, Handling Protected Information, which involves security concerns associated with managing and handling protected or sensitive government materials and information that can lead one to lose (or not obtain) a security clearance.

The concerns regarding handling protected information can come up in various ways in the context of a security clearance. However, many federal employees and government contractors retain their security clearances even if they have been alleged to have mishandled protected or otherwise classified information. Notably, under review by a security clearance adjudicator, these types of issues can be mitigated in a number of ways.

Adjudicative Guideline K: Handling Protected Information

Within Security Executive Agent Directive 4 (SEAD 4), Guideline K of the Adjudicative Guidelines governs security clearance issues involving handling protected information.

Security Concern

Guideline K establishes the following security concerns about individuals who are alleged to have mishandled protected information in Paragraph 33:

33. The Concern. Deliberate or negligent failure to comply with rules and regulations for handling protected information—which includes classified and other sensitive government information, and proprietary information—raises doubt about an individual’s trustworthiness, judgment, reliability, or willingness and ability to safeguard such information, and is a serious security concern.

While there are too many examples of federal employees or government contractors mishandling protected information, a few examples include: unauthorized removal of protected information, unauthorized copying of protected information, or viewing protected information beyond one’s authority, among other issues. Regardless of the alleged misconduct, we try to advise clients with these types of issues accordingly to give them the best chance of obtaining or maintaining their security clearance.

Potential Mitigation

In our security clearance practice, we often represent and advise individuals regarding their alleged mishandling of protected information, which arise in the course and scope of holding or seeking to obtain a security clearance. Typically, if an issue is under review, mitigation can require the individual to demonstrate that the condition does not remain a significant security concern in holding a security clearance. Regardless, for cases involving these types of concerns, there are conditions that could mitigate the concerns.

As indicated, there are potential mitigating factors for violations of the rules involving the handling of protected information, which are listed in Paragraph 35 of SEAD 4:

35. Conditions that could mitigate security concerns include:

(a) so much time has elapsed since the behavior, or it has happened so infrequently or under such unusual circumstances, that it is unlikely to recur and does not cast doubt on the individual’s current reliability, trustworthiness, or good judgment;

(b) the individual responded favorably to counseling or remedial security training and now demonstrates a positive attitude toward the discharge or security responsibilities;

(c) the security violations were due to improper or inadequate training or unclear instructions; and

(d) the violation was inadvertent, it was promptly reported, there is no evidence of compromise, and it does not suggest a pattern.

The following are examples of potential mitigation arguments that can be made in security clearance cases involving allegations that a security clearance holder or applicant mishandled protected information, depending on the specific facts at issue.

1. Evidence which shows that the behavior described occurred infrequently and that they occurred some time ago;

2. Evidence that demonstrates that the individual has sought counseling for any improper behavior and has successfully completed training; or

3. Evidence that shows that the individual reported the behavior immediately after it occurred.

Common Issues

Some of the most common issues that seem to have come up as of late where Guideline K has arisen involve the following examples:

  1. Clearance holder takes classified information home without permission;
  2. Clearance holder, on the last day of work at a government contractor, takes their electronic files home, but they contain classified or sensitive information;
  3. Clearance holder takes company information home (not classified information);
  4. Clearance holder loses a thumb drive with sensitive or classified information on it and cannot locate it.

There are too many examples to list here, however, the general issue is the loss of protection of classified or even sensitive information by a security clearance holder.

Case Examples

The following are a few case summaries of security clearance matters involving Guideline K: Handling Protected Information, before the Defense Office of Hearings and Appeals (DOHA). These few examples provide a sample of the types of cases that are involved under Guideline K:

1. ISCR Case No. 17-02211 (Nov. 2018) (Applicant was involved in six security incidents from April 2014 to February 2016. Four of the six incidents resulted in a determination that he was culpable or a responsible party while two of the incidents were still pending a determination at the time of the April 2018 hearing. He has had no further security incidents since February 2016. The evidence is not sufficient to mitigate the serious security concern stemming from his involvement in the six security incidents. Eligibility denied);

2. ISCR Case No. 17-03757 (Oct. 2018) (Given his extensive work history in the defense industry, and his experience working with classified information, Applicant’s history of 6 security violations occurring between 2013 to January 2016 is misconduct that has not been mitigated by sufficient evidence of reform and rehabilitation. Clearance is denied);

3. ISCR Case No. 17-01111 (Aug. 2018) (Applicant’s security clearance violations occurred 15-30 years ago. Due to the passage of time and due to the testimonials from those who knew Applicant, they were unlikely to be repeated in the future. Clearance was granted); and

4. ISCR Case No. 17-00796 (Apr. 2018) (Applicant was found culpable by his employer of 5 separate security violations between November 2009 and November 2015, including a violation where he drafted an email containing classified information on an unclassified computer system. The administrative judge found that he had made some changes to minimize the risk of recurrence, but some doubts persisted about his ability and willingness to comply with security regulations. Clearance was denied.).

As demonstrated from these case examples, every security clearance matter involving Guideline K varies, but we have found that many cases can potentially be mitigated with the proper attention and the preparation of documentation, showing that the alleged misconduct was infrequent, does not cast doubt on the individual’s current reliability, judgment, or trustworthiness, and that the individual has completed proper training and treatment to avoid any potential future misconduct.

Conclusion

If a federal employee or a government contractor needs a security clearance lawyer for security clearance issues involving the handling of protected information, it is important to do so early in the process. Our law firm advises individuals in the security clearance process. We can be contacted at www.berrylegal.com or by telephone at (703) 668-0070. Additionally, our Facebook page is located here and our Twitter account is located here.

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