Changes Coming to the Security Clearance Application Process

I am attorney Sean Bigley and I’m here with my co-host Lindy Kyzer of clearance jobs.com. We’re talking this segment about the new SF86, also called the PVQ, which, Lindy, also turns out to be the SF85-P and the SF85, right?

Yes. I love it. They’re consolidating. Why have three different numbers and forms when you can have one? I’m excited for this.

Well, I think it’s going to be interesting because you’re right. I think on the surface it does seem like it’s going to simplify things. As with anything in government, there are always caveats, and one of the big one is they’re adding some sections here, they’re making some changes. It’s not that they’re just smashing all three forms together and calling it a day. They’re doing some pretty significant updates. First off, I guess, why don’t we talk about that, Lindy? What is your sense about the focus areas for the new questions that they’re adding or the things that they’re changing?

Yeah. Well, it’s basically taking those three forms that we know and love and changing them into kind of a four part, choose your own adventure that allows us to pick segments of the form that are necessary for the level of vetting. And I think that’s good because I still have a ton of confusion about the SF85 versus S86 generates a lot of confusion from applicants as to what they’re filling out. Folks will fill out something for a position of public trust and think that they’re filling out something for a security clearance. I am one of those people who was foolish enough to do that at one point in my career, so I have a huge sympathy for the other folks who are in that bucket. I think it makes it more confusing about the reporting dates and timelines because we know there’s disparity between those three forms now in terms of what years or timeframes are asked.

I think making one vetting questionnaire with multiple parts I think is a better system. And I also get behind the things that they’re adding and taking out. I think the form was due for an upgrade. It’s not necessarily, quote unquote, shorter, but it is more streamlined. I think it does reduce some of the questions that were not necessary to the form. I hear hair color is out, which as a woman whose hair color has changed many times I feel like that’s just wise. But I do think they tried to think about what are the questions that really relate to security and what do we need to make a reasonable determination about a person? What do we need, what kind of information do we need to investigate this person? And my understanding is the only kind of main section that’s added or questions that are added are around kind of misuse of classified information, mishandling information.

And that seems to make sense if you’re looking at kind of past behavior predicting future behavior. How many people is that really going to vet out? I am not sure, but it is a reminder kind of how you are able to follow the rules of your workplace is usually pretty significant for a security clearance determination. Insider threat issues boil down to both malicious and non-malicious actors. So I think they’re kind of creating some room for that. And saying that if you have something in your employment history that’s related to kind of mishandling classified information, we’re going to look at that person a little more carefully. I mean, I don’t know, is that your understanding of the form or do you have any thoughts on, hey, the world’s your oyster, you see a lot of people with issues with the SF86, Sean, what would you change about it if you could?

I’ve got two thoughts really on this. One is directly to your point, which is this new section that’s being added. And to be clear, we haven’t seen the questions yet that they’re proposing surrounding past mishandling of classified information. I have a sneaking suspicion about how they’re going to word some of these things. Back to that in just a moment. My other area of interest to see is whether some of the needlessly complicated questions on here get simplified. And by that I mean, for example, the question about reportable foreign contacts that gives people fits all the time. It’s one of the most common questions we get, and I know we’re going to do a whole segment on that. But there are some questions on here that are just, when you really parse them out, they’re actually a little more complicated than they first look at first blush.

Same with some of the questions about associations. And we’ve talked about that, how that’s partially out of necessity from a first amendment standpoint where they can’t make it seem as though they’re going to deny you a security clearance because you’ve been associated with some disfavored political group. Unless that group is espousing, for example, overthrowing the US government by force or something like that. They’re apparently playing with some of the wording on certain questions. And I think those two areas are probably going to be included in an overhaul. And if they’re not, they probably should be.

So one thing that I’m really interested to see is how they’re updating the wording on the questionnaire to simplify it and to eliminate applicant confusion because not only do we get a lot of people who contact us with confusion about how to interpret questions, but if you look at some of the prior security clearance denial and revocation decisions that are available on the DOHA website or the Energy Department Office of Hearings and Appeals, the two places that publish their security clearance denials and revocations, you will see a persistent theme of applicants saying or claiming they didn’t understand the question, they misinterpreted it, et cetera.

And so I think that’s definitely something that needs to be looked at. Now, granted, there are, I’m sure plenty of cases where applicants are using that as an excuse, but from the government’s perspective that that may also be further reason to overhaul these questions is it eliminates the excuse if you simplify it. That’s one piece of it. The other piece back to your point is this issue of prior mishandling of classified information. And that really piqued my interest because right now when you look at the SF86 form, there’s really only two sections on it that could potentially implicate previously undiscovered criminal conduct. And that is the drug use section and the IT use section.

Interestingly, and I say interestingly, maybe this is just interesting for us lawyers, but if you look at those sections, they both include explicit disclaimers that the information you provide there will not be used by the government to prosecute you. And if this section about prior mishandling of classified information is added, I will be very curious to see if the same language is included there. Because if it isn’t, applicants who are answering these questions in the affirmative are doing so at risk of potentially being prosecuted or at least having this information used against them to open a criminal investigation. And that is something that could potentially be a real problem for people and something that would be certainly worth consulting with an experienced criminal defense attorney on before submitting the form.

Yeah, I do think the form is definitely more intuitive. It definitely has more question branching. For instance, simple things that I know somebody who’s young and who has used a modern form is going to be like, “What?” But I think the old SF86 was just not a super easy form to fill out. I think they’re trying to simplify and make things within the form, even within, they spliced out drug use and cannabis. So marijuana and cannabis derivatives have a separate section. Like everything else, pros and cons. So I think there’s a lot of positives to doing that. I do think you’re not going to have any issues with going out of business, Sean. The new form will still prompt as many questions from candidates as it always has. Both of us are going to be fine, our inboxes are going to remain full.

You’re still going to have to pay very close attention when you fill out this PVQ. You’re still going to really want to accurately provide information and answer the explicit questions that are asked. So all of the advice that we give around the SF85, SF86 are going to be the same, but I do think it tries to create more clarity around a lot of those topics that you did bring up. That does not necessarily make it, quote unquote, easier to fill out. But I do think applicants who do their homework and do it well, it should be a little bit more clear what you need to answer and what you need to provide and what information is really applicable to the form versus there was just enough ambiguity in some of the questions, as you mentioned in the old SF86, that I do think the new form reduces some of that. We can hope.

Yeah, I agree. But I mean truly, I think anybody who’s going to be filling one of these out, mark my words or make a mental note, if you have previously mishandled classified information, and especially, and I hope this isn’t the case, but I know that it happens more than we would like to think. If you have classified information at your house, for example, or in your car or somewhere else it’s not supposed to be, you know, really, really want to think carefully and consult with criminal defense counsel before you answer questions about prior mishandling of classified information.

So be on the lookout for whether that similar disclaimer language is included in that section or not. That’s something that I think is really going to be important for people. And then also, Lindy, to your point about breaking out the cannabis and the other drug use, I think that also I’m interested to see whether there are questions that they add there about CBD use, for example, also another super hot topic that continues to come up, especially for people in the military who are barred under the UCMJ from using CBD products, even those that are federally legal.

So that also potentially can raise an issue for people. I guess there are definitely a lot of people, myself included, who would say that the form is overdue for an update, and I think it’s just going to be interesting to see where they go with it. And frankly, the extent to which these updates implicate some of the emerging trends that we’re seeing with the CBD, for example, with the classified information mishandling, with the cryptocurrencies and some of the other things that really generate a lot of reader interest on clearance jobs. Clearly information is getting back to security officials about what people are concerned about and topics that are coming up and presenting kind of emerging security risks that maybe didn’t exist 5, 10, 20 years ago. And so it’s interesting and will be interesting to see the extent to which they tailor the evolving form to those things.

Yeah. I think it’s still going to be super complicated. What they have listed for, have you had contact with the foreign national in the past five years with whom you had feelings of affection, shared common interests, were influenced by their opinions or suggestions, had a romantic relationship, were bound by social moral or legal obligations, shared information about yourself that if known could be used to influence you to act against the interest of the US government. That’s how it’s phrased on the new PVQ. That seems as confusing as the current form. True or not true?

Yeah, I haven’t seen that language. So that’s the first time I’m hearing it. And that’s actually really interesting because it sort of melds one of the divergent aspects of SEAD 3, Security Executive Agent Directive 3. There has been a difference in who constitutes a reportable contact under SEAD three versus on the SF86. And again, I know we’re getting real wonky here, but it does incorporate that, so that’s very interesting. And just to be clear, so have you seen then the questions surrounding mishandling of classified information?

I have, but I can’t remember what they are off the top of my head, Sean, but yeah. But it does ask, it asks more specifically about misuse of IT systems, and have you ever violated computer rules or violated company or agency policy around handling protected information.

A lot of the clarity in the forum is around how the questions branch out, but I think the issues around especially foreign contacts are going to be as confusing. Just because for me, I mean, we’ve had that question a ton. What does sharing personal information constitute? If you’re a part of the same internet club or online forum and you share your dog photos, is that sharing personal information? And it’s still going to trip up folks, I think, who are trying to respond to that question on the form.

It’s definitely complicated. And I mean, not to really self-promote here, but I do think this is a real example of when it pays to get competent legal advice. Because if you don’t, and you answer these questions incorrectly, depending on the circumstances, you may be accused of falsification if you do get competent legal advice and then the government comes back to you and says, “Well, why did you answer the question this way?” As long as that advice was reasonable and a reasonable person wouldn’t have listened to that advice and said, “This makes absolutely no sense.” Generally you’re going to be protected and you can rely on advice of counsel as a defense. These questions trip up a lot of people, and if you’re looking at them and your eyes are glazing over, you’re not alone.

Well, welcome to the PVQ people. I was really excited at the beginning of this call, Sean. Now we’ve just gone back down the ‘government forms are really sad’ rabbit hole. But yeah, PVQ coming. Good news. We have a year to get used to it and the comment period just ended. So what we see today may not be what’s implemented a year down the road. So we will wait and see, and we’ll just do another episode of this and let you know what’s actually on the form.