There are few security clearance topics that generate more discussion online than Joint Personnel Adjudication System (JPAS) incident reports. That’s because they impact a whole lot of cleared DoD employees and contractors – and because they vest local security officials with extraordinary discretion. 

How Do You Get an Incident Report in JPAS?

An incident report is the result of a Facility Security Officer (FSO) or Special Security Officer (SSO) placing derogatory information about a cleared individual in JPAS. It could be anything from “John Smith is generally believed to be an axe murderer” to “Jane Doe was caught drinking in her car at lunch.” The only standard for filing an incident report is that the information must be “adverse”. If you’ve ever read the National Adjudicative Guidelines, you’ll know that they leave plenty of room for subjectivity (and creativity) on the meaning of that term.

The reported information is received by DoD’s Consolidated Adjudications Facility, which is supposed to review it and act on it in one of a few ways:

  1. Close it as unfounded or insufficiently derogatory (perhaps with a warning to the subject),
  2. Request additional information, like a new SF-86 from the subject or a targeted investigation, or
  3. In rare situations, immediately issue the subject a Statement of Reasons (sometimes coupled with a security clearance suspension in particularly concerning cases). 

Where the Incident Reports Go Once They’re Submitted in JPAS

Unfortunately, the large volume of incident reports submitted means that all but the most serious often sit unacted upon for significant periods of time. If DoD ultimately acts to revoke the clearance, the subject of the report is provided an opportunity to challenge the allegations, coupled with certain administrative due process rights. The precise scope of those rights depends on whether the individual is a member of the Armed Forces, a DoD civilian, or a DoD contractor. Incredibly, members of the Armed Forces and DoD civilian employees have no right to confront their accuser(s). DoD contractors, however, are afforded the right of confrontation. Much like in a criminal case, it can be critical to the defense. Imagine the difference between trying to fight accusations written on paper versus those levied in live testimony. When placed in the hot seat, an accuser’s story sometimes falls apart or their demeanor gives off obvious indicators of falsification. 

Incident Report = Police Report per DOHA Administrative Judges

But even in contractor cases, the confrontation right is not absolute. The government frequently relies upon the “business records exception” under the Federal Rules of Evidence to claim that a JPAS incident report does not require an authenticating witness. The problem with this argument is that the business records exception is an exception to another Federal Rule of Evidence – the prohibition on use of hearsay like unsubstantiated rumors against the accused – which contains a caveat prohibiting documents prepared “in anticipation of litigation” from being characterized as business records. When DOHA Administrative Judges admit JPAS incident reports into evidence over objection under the business records exception they disregard that critical caveat, often by claiming that the employer had a “duty” to submit the report under DoD regulation and likening an incident report to a police report under yet another rule of evidence. 

Subjectivity Undercuts Credibility

Such claims fail to account for the significant subjectivity involved in determining most of the time what is or isn’t “adverse” information; a subjective determination is the antithesis of a duty. Also, there are key differences between police reports and JPAS incident reports – not the least of which that a police officer taking a report theoretically has no relationship with the subject of that report, whereas personality conflicts and other motivations can sometimes infect the employer-employee relationship. Where ulterior motives do exist, they undercut the credibility of the allegations. 

Police Report Vs. Business Records Comparison Should Clarify

Compare this to true business records, which the law has long described as documents relevant to the accused’s guilt or innocence only by happenstance, thereby entitling them to enhanced presumptions of reliability and accuracy. For example, an auto mechanic’s repair records in a case where a manslaughter defendant is accused of running over his victim. The defendant’s defense is that his brakes failed. Records that the brakes had just recently been checked and were noted to be in good working order are certainly relevant. Since the mechanic had no idea at the time he checked the brakes that the records he prepared could later become relevant in a criminal trial, they also would likely qualify for admission as evidence by the prosecution under the business records exception.

JPAS Incident Reports Prepared for a Clearance Denial or revocation

It’s all very technical and unexciting on the surface, but the right of confrontation is meaningless if one’s accuser can simply make his or her accusations in writing and suddenly become immune to cross-examination. The right of confrontation exists for a reason. It is generally inaccurate to characterize JPAS incident reports as “business records” because in most cases they aren’t prepared in the ordinary course of business subject to a duty. More often, they are prepared precisely to serve as the basis for a security clearance denial or revocation case against the subject, and therefore they are no different functionally than an accuser’s testimony. By allowing those who author them to dodge confrontation and cross-examination, the government significantly weakens the confrontation right for those to whom it would otherwise be available. 

 

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

1. There is some information clearly defined as adverse in Security Executive Agent Directive (SEAD) 3; for example, illegal drug use. JPAS Incident Reports involving these defined categories of information are rarely an issue because the underlying facts are not typically in dispute. The JPAS incident reports that are an issue are those that recount disputed allegations or subjective opinions, often as fact. 

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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