When the Defense Counterintelligence and Security Agency (DCSA) finishes investigating a defense contractor employee’s background but still needs more information before deciding on their security clearance, it sends the applicant a formal set of questions called an Interrogatory. The cover letter to a DCSA Interrogatory includes this bolded admonishment:
You may refuse to answer these Interrogatories on constitutional or other grounds. However, if you decide to exercise that right or fail to provide the requested information, we will be unable to resolve this issue of making a determination concerning your security clearance eligibility. Also, any security clearance you may now have will be suspended, further processing of your case will be discontinued, and any pending clearance requested will be denied.
If DCSA issues an Interrogatory, it’s always sent before DCSA decides whether to issue a “Statement of Reasons” (SOR). Historically, this admonishment hasn’t caused much trouble, because an Interrogatory is actually a chance for applicants to favorably resolve security concerns early and avoid the more serious SOR stage. Applicants have always been obligated—and it’s in their own best interest—to respond completely to all requests for information in an Interrogatory.
A Troubling Additional Requirement
Recently, an applicant received an Interrogatory directing them to send a DCSA letter and a signed “Specific Release” form (OFI 16-A) for medical records to each of the applicant’s mental health treatment providers. The Interrogatory stated:
Your treatment provider will return a copy of your records directly to our office. Please note, due to non-compliance rates from providers, you must also obtain and provide DCSA TD(A) with a copy of your records.
It also included this additional admonishment:
Failure to provide records as requested will result in a default decision and cessation of your security clearance processing. You will not be able to reapply for a security clearance until one year from the date of any default decision.
DCSA Admonishments Go Beyond Its Authority
The problem is that DCSA doesn’t actually have the authority to deny or discontinue a contractor clearance request on its own, despite what the admonishments claim.
Two Executive Orders set out the rules that govern security clearance decisions:
- Executive Order 12968 (Section 5.2), which covers most clearance applicants
- Executive Order 10865, (Section 3), which specifically covers contractors
Both executive orders make it clear that a security clearance cannot be denied or revoked before an SOR is issued. Furthermore, Section 10.2 of DoD Manual 5200.02, Procedures for the DoD Personnel Security Program (PSP), and Enclosure 3 of DoD Directive 5220.6, Defense Industrial Personnel Security Clearance Review Program, say the same thing.
Across these four documents, there is only one exception that allows a clearance to be revoked and a case discontinued by default before an SOR is issued. It appears in paragraph 6.2 of DoD Directive 5220.6:
6.2. An applicant is required to give, and to authorize others to give, full, frank, and truthful answers to relevant and material questions needed by the DOHA to reach a clearance decision and to otherwise comply with the procedures authorized by this Directive. The applicant may elect on constitutional or other grounds not to comply; but refusal or failure to furnish or authorize the providing of relevant and material information or otherwise cooperate at, any stage in the investigation or adjudicative process may prevent the DOHA from making a clearance decision. If an applicant fails or refuses to:
6.2.1. Provide relevant and material information or to authorize others to provide such information; . . .
then the Director, DOHA, or designee, may revoke any security clearance held by the applicant and discontinue case processing. [emphasis added]
Only the Defense Office of Hearings and Appeals (DOHA) has this authority in contractor cases before an SOR is issued—DCSA does not. DCSA can only refer these cases to DOHA. And even DOHA won’t automatically make a default revocation or cease clearance processing just because an applicant couldn’t get records from a third party, as long as the applicant made a documented, reasonable effort to obtain them.
DOHA also issues Interrogatories in the small percentage of contractor employee cases it receives from DCSA, and its Interrogatory cover letters contain a similar admonishment:
You may refuse to answer these Interrogatories. However, if you do so, your application will be denied. Any current security clearance or eligibility to hold a position of trust you may now have will be revoked. Your employer will be notified of this action, which could affect your current employment and your future employability requiring access to classified information or a position of trust.
This admonishment is grounded in authority given to DOHA by paragraph 6.2. of DoDD 5220.6 as a procedural default rather than a substantive clearance determination. However, there is legal textual tension between paragraphs 6.2 and E3.1.3 of the Directive, as well as Section 3 of EO 10865. DoDD 5220.6 is supposed to implement EO 10865, but that executive order does not distinguish between revoking a clearance on its merits versus revoking it as a procedural default. So, it’s a fair question whether paragraph 6.2 is a permissible implementation of the executive order or whether it goes further than the order actually allows.
Why DCSA’s Admonishments Matter
It is fundamentally unfair for DCSA to make applicants believe it can do something it doesn’t actually have authority to do. The DCSA admonishments can discourage people from continuing to pursue their clearance because they’ve been led to believe their “clearance request will be denied” if they “fail to provide the requested information” despite their genuine efforts. The admonishment in the DCSA Interrogatory cover letter should be changed to read:
You may refuse to answer these Interrogatories. However, if you refuse or fail to answer these Interrogatories, it may result in a preliminary decision to deny/revoke security clearance eligibility or in a referral to the Defense Office of Hearings and Appeals for case discontinuance under DoD Directive 5220.6.
And for Interrogatories involving third-party medical records, the instructions should read:
Your treatment provider will return a copy of your records directly to our office. Please note, due to non-compliance rates from providers, you must also try to obtain and provide DCSA TD(A) a copy of your records or documentation of your unsuccessful efforts.
Failure to provide either the records as requested or failure to provide documentation of your unsuccessful efforts to obtain the records may result in a preliminary decision to deny/revoke security clearance eligibility or in a referral to the Defense Office of Hearings and Appeals for case discontinuance under DoDD 5220.6.
DCSA is Shifting Investigative Responsibility to the Applicant
In the case described above, the applicant listed all relevant information on the Questionnaire for National Security Positions (Standard Form 86) and was interviewed by a DCSA investigator—but was never asked to sign an OFI 16-A release form during the interview. Without signed releases, the investigator had no authority to request the applicant’s medical records directly from treatment providers. In other words, it appears DCSA never even tried to get the records itself before demanding that the applicant do it.
There’s a reasonable version of this request: if an investigator gets a signed release from the applicant and then tries and fails to obtain the records, it would make sense to ask the applicant to try as well, or to document their own efforts. But when DCSA makes no effort to get the records in the first place, shifting that burden onto the applicant is neither reasonable nor appropriate.
What Applicants Should Actually Do
Regardless of how an Interrogatory or its cover letter is worded, here’s the practical bottom line:
- Answer every question as completely and accurately as you can—including anything that helps mitigate the government’s concerns.
- Make a genuine effort to get any requested records. If you can’t obtain them, document exactly what you tried. This documentation can matter a great deal to your case.
- Understand the difference between refusing to respond and being unable to fully respond. Simply refusing, or not responding at all, will likely lead to denial or discontinuance of your case. But making and documenting real efforts—even if you come up short—puts you in a very different position.
- Ask for an extension if you need one—for example, if you want professional help answering the Interrogatory, or if you need more time to obtain third-party records.
- Be especially careful if you’re asked to review and certify the Subject Interview portion of your investigative report when it’s attached to the Interrogatory.
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