One of the most sacred tenets of American law is that certain relationships are entitled to a degree of confidentiality. Which relationships those are – and the precise context in which confidentiality applies – varies among jurisdictions. But a good general rule of thumb is that most statements made (and information gathered) within the scope of the following relationships are treated as “privileged” and thus cannot be used as evidence against the party-defendant in a criminal case unless the party-defendant waives privilege: doctor-patient; attorney-client; and clergy-penitent. Other relationships that also commonly enjoy special status under the law include therapist-patient and married couples.

Do Privileged Communications Apply to the Security Clearance Process?

In the security clearance context, however, different rules apply. True, it is the government conducting the background investigation and evidence of criminal conduct uncovered during that investigation could theoretically lead to a criminal prosecution. Yet a security clearance is considered a privilege, not a right, and the act of applying for one is entirely voluntary.

That voluntary application process requires that the individual seeking access to classified information answer questions and provide information that could otherwise legally be withheld from the government in a non-voluntary proceeding like a criminal investigation or prosecution. In some circumstances, this could include privileged information.

For example, a security clearance applicant with a mental health history may be asked to authorize his or her health provider to answer certain questions posed by investigators. But keep in mind that an authorization to release information is just that; the government cannot compel, for example, that mental health provider to actually provide the requested information, nor is there anything preventing the applicant from changing his or her mind and revoking an authorization for release of information prior to the information being released. The worst that happens under such circumstances is that the security clearance is denied or revoked – which it probably will be if an applicant refuses to authorize contact with his or her mental health professional. That’s obviously not a great outcome, but in rare cases there might be countervailing considerations that outweigh obtaining the clearance.

What about with my priest, lawyer, or rabbi?

Similarly, government background investigators can approach a security clearance applicant’s attorney (current or former) or priest/rabbi/minister to inquire about the applicant’s background, but those individuals will be precluded from discussing the applicant – and may actually be precluded in some instances from even acknowledging a professional relationship with the applicant exists or existed – absent a waiver of confidentiality by the applicant.

There is very rarely a need for background investigators to interview an attorney or member of the clergy about a security clearance applicant, but I can conceive of a few scenarios where investigators might want to do just that. One example would be where the applicant lists their attorney or priest/rabbi/minister as a reference on the SF-86 form (a bad idea that I’ve seen happen); another is where the applicant’s relationship with the attorney, doctor, or clergy member transcends both the personal and the professional, resulting in a blurring of those lines.

Ultimately, the government can always ask for a waiver of confidentiality and the security clearance applicant can always refuse. Unlike with mental health professionals, however, it is much less likely that an applicant who refuses to authorize his or her attorney or clergy member to speak with background investigators would be denied a clearance. I’ve frankly yet to see such a scenario ever play out, and if it did there would probably be a strong legal argument to be made against it. This is particularly true in the case of an attorney, no matter the context in which he or she represented the clearance applicant.  Nonetheless, the fact that a clearance is a privilege means that technically the government can condition granting one on just about anything they want. I’ve seen enough crazy hypotheticals become reality in this field that I won’t rule out such a scenario as a possibility.

So why does this all matter? In some cases, the information that a lawyer, doctor, or member of the clergy possesses about you, the applicant, may have ramifications outside the context of the security clearance adjudication or could be used by the government to deny you a security clearance where said denial might otherwise not occur. The lesson here is to think carefully before authorizing a waiver of privileged communications in any context and seek out legal advice where necessary.

 

This article is intended as general information only and should not be construed as legal advice. Consult an attorney regarding your specific situation. 

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Security Clearance Attorney Sean M. Bigley represents clients worldwide in security clearance denials and revocations. He is a former investigator for the U.S. Office of Personnel Management. For more information, please visit www.bigleylaw.com