Completing a security clearance application is a tedious affair, no matter how vanilla one’s background. But for some applicants, the process also creates serious anxiety – and not just over questions of outcome.
For these applicants, equally frightful is the question of who sees the highly personal, embarrassing, and/or potentially compromising information they’re reporting about themselves to the government.
Obvious recipients of the information include the background investigator(s) assigned to the applicant’s case, along with adjudicator(s) reviewing the case file post-investigation to render a decision of whether to grant or deny the clearance. But beyond that, the answer to this question can be murky. The applicant’s relationship with the government also plays a surprising role in the matter.
Military Service Members
Members of the Armed Forces arguably have the most to lose by reporting problematic information about their background or activities on their security clearance application. This isn’t a reason to be untruthful – far from it – but it is reason to first consult legal counsel if truthfully completing a security clearance application means answering questions that could subject the applicant to court martial or non-judicial punishment (including a potentially career-ending General Officer Letter of Reprimand, or “GOMOR”). That’s because the information a service member reports on security forms is seen not just by the unit security officer, but also potentially by the applicant’s chain-of-command. When criminal or counter-intelligence concerns are raised a command can share the information with the military branch’s criminal investigative division. The Uniform Code of Military Justice criminalizes issues like adultery, refusal to obey a lawful order, and fraudulent enlistment that are not crimes for civilians. Therefore, the potential for legal exposure is broader than in other types of background investigation cases.
Civilian Federal Employees
All civilian federal employees fall under the purview of a responsible security office. Upon submission of completed forms, the cognizant security office(r) reviews the paperwork for completeness prior to releasing it to background investigators, who may belong to a different federal agency since not every agency handles their own investigations. This information may be shared with the federal agency’s Office of General Counsel, Office of Inspector General, and/or Human Resources Office if violations of agency policy or law are evident. Significantly less common, but not unheard of, an employee’s security forms can also be shared with law enforcement if criminal or counter-intelligence concerns are raised. Unlike in the military, however, my experience is that supervisors in the employee’s chain of command typically are not privy to the information reported by an employee on security forms.
Federal Government Contractors
Federal government contractors should expect that their employer’s own security office will review completed security forms for completeness prior to releasing them to the government. This prospect – especially without the civil service protections afforded most federal employees – gives some contractor employees heartburn. The concern may be well-founded; after all, precious little prevents a contractor from firing an employee over information disclosed on security forms, especially in at-will employment states where no justification is required for termination. Unfortunately, contractors are required by the National Industrial Security Policy Operating Manual (NISPOM) to perform an in-house review. The information is supposed to be protected by the Privacy Act of 1974, but the practical effect of that protection is debatable. In rare cases, information can also be shared with federal law enforcement and/or agency Inspectors General.
For all categories of security clearance applicants, other, less common, situations also allow for disclosure of information submitted on security forms. Authorized recipients include, but are not limited to: state or local law enforcement; the Equal Employment Opportunity Commission; the Merit Systems Protection Board and U.S. Office of Special Counsel; and parties in litigation pursuant to a subpoena. For a more comprehensive list, see the “Office of Personnel Management (OPM) Routine Uses” section of the instructions for federal security forms.
This article is intended as general information only and should not be construed as legal advice. Although the information is believed to be accurate as of the publication date, no guarantee or warranty is offered or implied. Laws and government policies are subject to change, and the information provided herein may not provide a complete or current analysis of the topic or other pertinent considerations. Consult an attorney regarding your specific situation.
