Case No. VSO-0261, 27 DOE ¶ 82,810 (H.O. Schwartz July 6, 1999)

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* 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 XXXXXXX’s.

July 6, 1999

DEPARTMENT OF ENERGY

OFFICE OF HEARINGS AND APPEALS

Hearing Officer's Opinion

Case Name: Personnel Security Hearing

Date of Filing:February 17, 1999

Case Number: VSO-0261

This Opinion concerns the eligibility of XXXXXXXXXXXXX (hereinafter "the individual") to retain his 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." An 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.

I. Procedural Background

The individual is an employee of a contractor that performs services for the Department of Energy (DOE). In conjunction with his employment, the individual has maintained access authorization for many years. The local DOE Security office found that a single incident concerning the individual's handling of classified material raised substantial doubt regarding the individual's continued eligibility for access authorization. Accordingly, a DOE official suspended the individual's access authorization.

The letter that notified the individual of the suspension (the Notification Letter) set forth in detail DOE Security's concerns, which focus on the individual's failure to protect classified material, as described in 10 C.F.R. § 710.8(g). The Notification Letter also informed the individual that he was entitled to a hearing before a Hearing Officer to resolve the substantial doubt regarding his continued eligibility for access authorization.

The individual responded to the Notification Letter by requesting a hearing. The Director of the OHA appointed me the Hearing Officer in this matter. At the hearing, DOE Security called as its witnesses a personnel security specialist, a security investigator, the individual's supervisor, and the

individual himself. The individual presented three additional witnesses-- his team leader, a project leader, and the facility manager-- all of whom work with the individual in various capacities.

II. Statement of Derogatory Information

The Notification Letter contained a statement of the derogatory information that created a substantial doubt as to the individual's continued eligibility to hold access authorization. It stated that during a personnel security interview (PSI), the individual acknowledged that he knowingly processed classified information on an unclassified computer. He spent a few hours on the computer, then printed the document on which he was working on an unclassified printer connected to a local area network. He then went on travel for five days, having neglected to store the unlabeled disk that contained the classified information, which he had left on his desk, in a secure area. The individual also acknowledged during his PSI that, about one year before this incident, he had inserted a classified disk into an unclassified computer to print a title page from a classified document. On the basis of that derogatory information, the DOE official believed that the individual "has failed to protect classified matter, or safeguard special nuclear material; or violated or disregarded security or safeguards regulations to a degree which would be inconsistent with the national security; or disclosed classified information to a person unauthorized to receive such information." See 10 C.F.R. § 710.8(g) (Criterion G).

III. Analysis

The criteria for determining eligibility for access authorization set forth in Part 710 dictate that a hearing officer must undertake a careful review of all of the relevant facts and circumstances and make a "common-sense judgment . . . after consideration of all the relevant information." 10 C.F.R. § 710.7(a). I must consider all information, favorable or unfavorable, that has a bearing on the question of whether restoring the individual's access authorization would compromise national security concerns. Id. Specifically, the regulations compel me to consider the nature, extent, and seriousness of the individual's conduct; the circumstances surrounding his conduct; the frequency and recency of the conduct; the age and maturity of the individual at the time of the conduct; the voluntariness of participation; the absence or presence of rehabilitation or reformation and other pertinent behavioral changes; the motivation for the conduct; the individual's potential for being susceptible to pressure, coercion, exploitation, or duress; the likelihood of continuation or recurrence of the conduct; and any other relevant and material factors. 10 C.F.R. § 710.7(c). Although it is impossible to predict with absolute certainty an individual's future behavior, as the Hearing Officer, I am directed to make a predictive assessment as to whether restoring his access authorization "would not endanger the common defense and security and would be clearly consistent with the national interest." 10 C.F.R. § 710.7(a). After careful consideration of these factors and all the evidence in the record in this proceeding, I recommend that the DOE restore the individual's access authorization.

The facts that surround the incident, as described in the Notification Letter, are uncontroverted. At the hearing, the personnel security specialist testified that DOE Security's concern is based entirely on this incident and the self-reported incident of the previous year. Transcript of Hearing (Tr.) at 22. DOE Security does not allege that the individual disclosed information to an unauthorized person. Tr. at 21. Moreover, aside from mentioning the existence of an earlier incident, Tr. at 17, and the fact that it was self-reported, Tr. at 22, DOE Security assigns little weight to its occurrence. For that reason, I will likewise focus on the more recent incident.

The individual does not dispute the Notification Letter's summary of the facts surrounding the incidents, and instead focused his efforts at the hearing on demonstrating the circumstances that mitigate his actions: his forthright and cooperative attitude, the isolated nature of the incidents, his lack of training in security, and the stress he was suffering at home as well as at work. Tr. at 8-9.

While the DOE argues that the individual's disregard for proper procedures for handling classified information was willful, e.g., Tr. at 76, the individual contends that it was not intentional and was the result of human error. Tr. at 43. He stated at the hearing that he was under such stress to complete the work that involved the classified information, that "it didn't even cross [his] mind" that he was committing a security violation at the time. Tr. at 40. He acknowledges with hindsight that he acted improperly. See, e.g., Tr. at 44. But at the time, he chose to process the classified information on the unclassified computer in his office rather than use the classified computer nominally available to him. He enumerated the reasons for making this choice. Among them were deadline pressure placed on him to complete certain work on a project before he left for a weeklong business trip, Tr. at 38; the fact that the classified computer had recently been relocated to an office occupied by another employee with no knowledge or need for knowledge of the project, Tr. at 39; and the fact that the classified computer was malfunctioning. Tr. at 38. Although the evidence in the record demonstrates that the individual may have justified to himself why he handled the classified information in the manner he did, I nevertheless believe that he willfully failed to protect classified material. The question that remains, therefore, is whether the individual has successfully mitigated the DOE's Criterion G security concerns that his behavior has raised.

All the evidence in this record demonstrates that he is a truthful and straightforward individual, and has behaved in that manner throughout this process. Both the security investigator and the personnel security specialist testified that the individual was extremely open, honest and cooperative with the various investigations and interviews that followed the incident. Tr. at 16, 82. The personnel security specialist further stated that the individual voluntarily informed her during an interview that he had improperly processed classified information on an earlier occasion. Tr. at 22. Moreover, before DOE Security took any action to suspend the individual's clearance, the facility manager asked the individual, on his honor, to refrain from entering the classified sections of his work area. Tr. at 51. According to the facility manager, who also testified that the individual "has been very truthful and forthright with us since this incident began," "he very willingly obliged with my directive," left the classified area and never attempted to reenter. Tr. at 133. The degree of the facility manager's trust in the individual is, in my opinion, a strong indicator of the individual's reputation for honesty.

The individual offered testimony, through his supervisor and the facility manager, that his work environment did not provide appropriate training in the handling of classified information. His supervisor testified that "the only required training is the on-line annual security training and the computer security training, and there is also a technical surveillance countermeasures training that's been required in the past six months, I think." Tr. at 99. The supervisor further stated that it is unclear, and debated among the employees, whether classified information can find its way into personal computers through networks, and that further guidance in that area has been requested. Tr. at 99-100. The facility manager, a deputy division director who is responsible for protecting the work force and the environment from hazardous and radioactive materials on the site, testified that he is a certified safety analyst. Tr. at 136. As a safety analyst, he gave his expert opinion that training must be frequent and reinforced to affect behavior. Tr. at 141. In the individual's case, such behavior was not reinforced by practice, because the individual testified that the incident involved "really the first project that I've worked on in my life that I've really had to deal with classified material to any extent." Tr. at 53-54. Nevertheless, because the individual knew that the information he was processing was classified, his mishandling of that information was a very basic breach of security. Despite the testimony about training, the training he received was sufficient to inform him that classified information must be handled correctly under all circumstances. It is clear, however, that the training did not adequately prepare the individual to withstand the stresses placed on him at the time of the incident, which will be discussed below.

At the time of the incident, the individual was subjected to an unusually large confluence of stresses in both his personal life and his job. He testified that about a month before the incident, his wife nearly died after being hospitalized on an emergency basis with a condition that was never clearly diagnosed. Tr. at 33; Transcript of Personnel Security Interview (PSI) at 22. Immediately before the incident, his teenage daughter threatened to commit suicide. Tr. at 34. His supervisor testified that he was aware of the individual's personal strains. Tr. at 96. In addition, the individual testified that his clients' operations had been "stood down," or suspended, for eight months, and each project could resume only after the individual or another member of his team approved its startup. Tr. at 36-38. A number of the individual's clients, with whom he worked on a daily basis, testified to the job-related stresses the individual faced, stating that they were pressing him to produce the required documentation for project resumption. Tr. at 107-08, 110 (testimony of project leader); Tr. at 121 (testimony of team leader). The facility manager testified that in addition to the pressure from the projects, he placed pressure on the individual's team by personally reviewing its work, in order to avoid future standdowns for health and safety concerns. Tr. at 135. The incident occurred on the afternoon before he left for a week of business travel.

The facility manager also offered testimony regarding the effect of stress on performance. As a safety expert, the facility manager also testified that human error occurs in all human endeavor, Tr. at 137, and that although a low to moderate level of stress helps people perform at their best, "performance really diminishes . . . once the stress level becomes extremely high, . . . and that means people tend to make mistakes." Tr. at 139; Exhibit A at 4-2. The evidence in the record convinces me that the individual was subject to an unusually large burden of stresses, both personal and job- related. Accepting this expert testimony that stress can lead to mistakes, I conclude that the stress the individual was under may explain his behavior, but it does not justify it.

The individual also attempted to demonstrate that recurrence of the incident would be highly unlikely. At the personal level, he had determined that he could benefit from counseling in stress management, Tr. at 62, and asked for and obtained his supervisor's commitment to permit him to participate in a stress management program. Tr. at 100-01. Participation in a stress management program might well provide the individual with some tools for coping better with stress, so that it does not cause future lapses in judgment. At the institutional level, the individual established that new procedures for handling classified information on his team have been developed, Tr. at 122-24, and a heightened awareness of security issues has pervaded the work environment. See, e.g., Tr. at 80-81, 112, 142. It is not clear to me that new procedures for identifying and safeguarding classified material would reduce the likelihood that the individual would repeat his behavior, because he knew the information was classified and knew he was mishandling it. In the individual's favor, however, I concede that a work atmosphere that now emphasizes the importance of security might possibly increase the individual's sense of vigilance in this regard. This concept was stressed in a one-day standdown of operations at the individual's building held after the incident at issue, specifically to address security awareness. Tr. at 142. At the very least, increased security awareness will remind the individual and his clients that proper handling of classified material may not be sacrificed to production pressures.

I find that the individual is unlikely to engage in the same activity that brought him to this juncture. Above and beyond his honesty, his commitment to stress management, and a new atmosphere of increased security awareness, what convinces me of this is the testimony of the witnesses at the hearing. With the exception of the personnel security specialist, every witness was asked whether he believed that the individual was likely to repeat his mishandling of classified information. My observation is that the longer each witness had worked with the individual, the more adamant was his declaration that this behavior would not occur again. Even the security investigator, who had had no interaction with the individual before his investigation of the incident, stated that he did not think that the individual would repeat his behavior, despite his knowledge that the individual had reported a similar, earlier breach. Tr. at 90. His supervisor of two years emphasized the long time the individual had been working and characterized the mishandling as "an isolated incident," because "people make mistakes occasionally." Tr. at 96. When the individual asked the project leader whether he felt the individual was likely to "do anything like this again," he responded, "I know you wouldn't, and I know a lot of other people have profited from your mistake." Tr. at 111. The facility manager, who has worked with the individual for 12 years, testified that, "having been put through this, [he]'d be ultra-sensitive to any matters of security involving potentially classified information." Tr. at 145. Finally, the individual's team leader responded to the same question posed by the individual:

Oh, I have no doubt that you would not repeat this. I know how painful this has been for you to be drawn off your work, you've had to move to a remote location, and I know it's been . . . tough, and I do not believe that you would ever, ever have that problem again.

Tr. at 125.

My common-sense evaluation of the evidence presented in this proceeding leads me to believe that restoring the individual's access authorization would not endanger the common defense and security and would be clearly consistent with the national interest. The factors most critical to my assessment are as follows. The nature of the incident is serious: regardless of the motivation, any failure to handle classified information properly can have serious, direct consequences to the national security. Because the individual has dealt with DOE security representatives in an honest, straightforward manner, and bears that same reputation, the potential for coercion, exploitation or duress is minimal. The potential for pressure, while recognized, has been addressed. An inordinate quantity of stress contributed to the individual following an unwise course of action in two isolated incidents. However, nothing about the nature of this incident leads me to believe that improper pressure might lead the individual to willfully divulge classified information to unauthorized individuals.

Moreover, based on the entire record, I believe that the individual is extremely unlikely to engage in this behavior again. First, although the individual will, no doubt, face stress in the future, he will in all likelihood not encounter the unique combination of stresses-- both personal and job-related-- that contribute to the incident. Second, the individual is seeking assistance to manage stress and will be adequately prepared to handle stress in the future. Third, there is uncontroverted testimony from the individual's supervisor, from his clients, and even from the DOE professing the belief that the individual will not repeat his behavior. Finally, my personal observation is that the individual has learned a great deal, about protecting classified information and the harms to the national security of failing to do so, from passing through the ordeal of this process. I believe he is now, despite his past behavior, of extremely low risk to the national security from this type of breach of the security rules. Accordingly, I recommend that DOE Security restore the individual's access authorization.

On June 18, 1999, the Secretary of Energy issued a statement establishing a policy of "zero tolerance" for violations of security requirements that, among other things, compromise classified information. His policy provides that where the DOE reasonably believes that an individual has endangered the national security by violating established security requirements through recklessness or willful disregard for those requirements will have his or her access authorization immediately suspended until the allegation has been resolved under Part 710. Though the process in this case began before this policy was issued, it has been conducted in a manner consistent with the policy. I have taken full account of the statement and policy, and this opinion presents my recommendation as to resolution of the DOE's concerns.

The regulations set forth at 10 C.F.R. § 710.28(a) provide that the Office of Security Affairs or the individual may file a request for review of the Hearing Officer’s Opinion within 30 calendar days of receipt of the Opinion. A party must file this request with the Director, Office of Hearings and Appeals, 1000 Independence Ave., S.W., Washington, D.C. 20585-0107, and serve the other party. If either party elects to seek review of the Opinion, that party must file a statement identifying the issues on which it wishes the OHA Director to focus. The party seeking review must file this statement within 15 calendar days after it files its request for review. The party seeking review must also serve a copy of its statement on the other party, who may file a response within 20 days of receipt of the statement. 10 C.F.R. § 710.28(b).

William M. Schwartz

Hearing Officer

Office of Hearings and Appeals

Date: July 6, 1999