Legal Insider: Security clearance holders have a duty to report

This is a sponsored column by attorneys John Berry and Kimberly Berry of Berry & Berry, PLLC, an employment and labor law firm located in Northern Virginia that specializes in federal employee, security clearance, retirement and private sector employee matters.

By John V. Berry, Esq.

Security clearance holders are expected to self-report security issues or incidents that may impact their ability to hold a security clearance.

Security Executive Agent Directive (SEAD) 4 is the applicable guide for clearance holders to determine whether a new incident or development touches upon a security concern which triggers a duty to self-report. Self-reporting is required and not doing so can cause harm to a security clearance holder. Furthermore, it is generally much better to be proactive in disclosing reportable events than for them to be discovered later.

Disclosing security incidents prior to them being discovered by clearance investigators can be considered a potential mitigating factor. Of course, there is also often many concerns in reporting security incidents by clearance holders which should be answered by an attorney experienced in security clearance law. Following legal advice, the usual first step in disclosing a new security concern involves contacting the individual’s security officer.

For example, if an individual is arrested for driving under the influence, it would be important to reach out to the security officer for guidance and first steps. The security officer may ask the individual to complete a form known as the SF-86C or other documentation to document the concern.

Timing is important. Self-reporting security incidents should be done, in many cases, as soon as possible. There are several examples of types of incidents that should be reported.  The following are just a few examples which may trigger the duty to report a new security issue:

• Financial Issues — Reporting negative financial circumstances such as bankruptcy, state or federal tax liens or unusual adverse financial debt issues.
• Arrests — Reporting any arrest, even if charges were not ultimately filed.
• Marriage — Reporting marriages, other new serious relationships or changes in co-habitation.
• Psychological or Substance Abuse Counseling — Reporting certain mental health and substance abuse issues impacting judgment or reliability.
• Illegal drug use — Reporting the use of marijuana and other drugs still considered illegal on a federal level.
• The Loss or Classified Information or Technology — Reporting inadvertent or accidental loss or compromise of classified or other sensitive information.
• Foreign Contacts — Reporting unusual or substantial foreign contacts, especially those where classified or sensitive information is sought by the foreign contact.
• Foreign Travel — Reporting travel outside the United States (other than for official business).

There are countless of other types of incidents that may need to be reported to a security officer, so if an individual has any questions it is often advisable to get legal advice as soon as possible. The Defense Counterintelligence and Security Agency (DCSA) has issued a notice which helps outline the self-reporting obligations of security clearance holders.

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