RICHMOND (CN) - A Democratic congressional candidate in Virginia is threatening legal action against a conservative PAC that shared an unredacted copy of her federal security clearance application with the press.
The document in question is an SF86 form filled out by Abigail Spanberger, the Democratic candidate for Virginia’s 7th District.
The survey is a massive, highly personal and mandatory form for those seeking federal jobs that require security clearance. They are used to conduct background investigations, reinvestigations, and continuous evaluations of persons under consideration for, or retention of, national security positions.
Lying on the form can lead to a five-year prison sentence.
The document, unredacted and containing Spanberger's social security number, home addresses and phone numbers, was acquired and shared with the press by the Congressional Leadership Fund, a political action committee “dedicated to protecting and strengthening the Republican Majority in the House of Representatives.”
The group said the document was legally obtained via FOIA request from the Official Personnel Folder for Spanberger from the US Post Office. Spanberger said she filled out the document when she was seeking a job as a federal postal inspector for the USPS.
Spanberger has since released a statement condemning the PAC for distributing the document as well as the federal agencies for allowing the information inside to be released to the public without her consent.
She also linked Speaker Paul Ryan, who heads the PAC, to the document’s release.
"I am not aware of any legal way the CLF could have this document,” she said in a statement before threatening legal action against the group if her request to destroy the document was not met by 5 p.m. Wednesday.
But according to Victoria Baranetsky, general counsel for the Center for Investigative Reporting, Spanberger’s chance of success in a legal challenge is in “murky territory.”
“An agency can mistakenly release documents … and a publication can publish that information, but there are consequences for that,” she said, offering two common outcomes.
In once scenario, the agency tells the FOIA receiver it was given the document, or unredacted parts of the document, by mistake. They can then tell the receiver to stop publishing it and ask a court to issue prior restraint order stopping it from being published or shared further.
“[That’s] incredibly rare and not usually the case,” Baranetsky said.
But there’s another scenario, also backed up with case law, that says once the agency has disclosed the record they’ve waved any FOIA exemption privileges.
“Sometimes an agency, just by mistaken release, has waived [that FOIA exemption],” she said.
While Baranetsky said she hadn’t heard any of her reporters filing for SF86 documents, she had seen plenty of requests for personnel files and while they are sometimes granted, there’s also a specific part of FOIA law that allows the agency to deny such a request.
“Under FOIA, there is an exemptions for personnel records, but the question is ‘is there any portions that can be published while others parts are redacted,’” she said, noting things like phone numbers, addresses and, in particular social security numbers, would often be among the information that is denied or redacted prior to release.
Still, as a media attorney, Baranetsky said it's important to promote transparency and access to public documents.
“That’s an integral tenent to the practice,” she said. “However there’s also the importance of respecting certain privacy concerns and that type of balancing is imported into FOIA practice as well as pre-publication review.”
In a statement, CLF spokesperson Courtney Alexander said the group “follows the letter of the law in examining any candidate’s background and Ms. Spanberger was no different.”
“That she’s threatening legal action, however, should raise serious questions for voters about what else she is trying to hide,” she said.
The Fund used the document to trace Spanberger’s work history to a less-than-a-year long stint working at a Saudi-funded Islamic school from late 2002 to early 2003. In 2005 the school came under fire when one of its graduates was convicted of providing information in a terrorist plot to assassinate then-president George W. Bush. Senate Minority Leader Chuck Schumer, at the time, accused the school of being a training ground for radical Islamic theology.
The Fund has since used Spanberger's time there, and her attempt to destroy the document, as a campaign attack saying the candidate’s actions show she “would want to hide from voters that she worked at a school that produced some of the world’s most dangerous terrorists.”
A newcomer to politics, Spanberger is challenging incumbent Republican and Tea Party member Dave Brat in the upcoming 2018 midterm election. The Cook Political Report has put the race as a “toss up” as the district, made up of Richmond’s suburbs and large swaths of rural land, shifts more blue, however the district has been GOP controlled since 1971.
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