National Security and Law Enforcement Outweigh Privacy

A former Homeland Security personnel chief who resigned before the agency could revoke her clearance for making false statements to investigators landed a job with a sensitive DoD agency. When DHS alerted the new agency to the problems she sued both agencies under the Privacy Act.

The U.S. District Court for the District of Columbia has granted summary judgment to the Department of Homeland Security after concluding that the agency had not violated the Privacy Act by alerting a Department of Defense agency of Plaintiff’s national security shortcomings. (Ames v U.S. Department of Homeland Security (DCDC CA No. 13-00629 (ESH), 1/27/16) The court’s opinion spells out the following facts.

Ames was a GS-14 Chief in the Federal Emergency Management Agency’s (FEMA) Personnel Security Branch. That branch conducts suitability and security checks for numerous FEMA employees. It was Ames’ job to make decisions granting all ranges of security clearances, up to Top Secret with Sensitive Compartmented Information access.

Ames was interviewed in connection with an investigation involving her boss. The investigation ended up concluding that the boss had a conflict of interest in connection with hiring two FEMA vendors as senior investigators with the agency notwithstanding what he knew to be their criminal history.

The agent then opened an investigation on Ames. It concluded that she had violated security standards when she approved the security clearances for these two individuals. The investigation found that when interviewed about her boss, Ames in fact knew of the past criminal convictions but denied knowing it. (pp. 1-2)

The U.S. Attorney declined to prosecute in favor of administrative action. When informed that she was now being investigated for administrative violations, Ames admitted under oath to granting interim Secret clearances that violated DHS regulations. Ames gave two weeks notice following the interview. Two days after her resignation took effect, Ames began work in the position of Division Chief of Personnel Security (GS-15) at NGA (National Geospatial-Intelligence Agency), a Defense Department organization. Some four months later, the IG investigator at DHS notified his counterpart at NGA and ran through what his report contained concerning Ames. Eventually the full report was turned over to NGA at its request. NGA terminated Ames. (pp. 3-4)

The court now rules that, given the stated routine uses under the Privacy Act for law enforcement and national security disclosures, the DHS IG properly disclosed its report on Ames to her new DoD agency IG. The court stated, “…the Supreme Court and D.C. Circuit have made clear that the judiciary should exercise the utmost caution in interfering with national security agencies’ adjudication of matters related to security clearances.” (p. 13) The court went on to say that not only was the disclosure consisted with the national security routine use, it was in fact “required.” (p. 14) Ames “had sufficient notice” that this kind of information could be shared by agencies and that these agencies “enjoy wide latitude to share, question, and analyze information that is relevant to one’s fitness for positions requiring security clearance.” (p. 15)

Bottom line: the Privacy Act cannot get in the way of national security and law enforcement considerations.

Ames v. DHS (13-00629)

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.