10 C.F.R. Subpart C—Safeguarding Privacy and Employee Rights
Title 10 - Energy
When a polygraph examination is scheduled, DOE must notify the individual, in writing, of the date, time, and place of the polygraph examination, and the individual's right to obtain and consult with legal counsel or to secure another representative prior to the examination. DOE must provide a copy of this part to the individual. The individual must receive the notification at least ten days, excluding weekend days and holidays, before the time of the examination except when good cause is shown or when the individual waives the advance notice provision. (a) At the individual's own expense, an individual has the right to obtain and consult with legal counsel or another representative prior to the polygraph examination. The counsel or representative may not be present during the polygraph examination. No one other than the individual and the examiner may be present in the examination room during the polygraph examination. (b) At the individual's own expense, an individual has the right to obtain and consult with legal counsel or another representative at any time during an interview conducted in accordance with §709.15(c). DOE may not administer a polygraph examination unless DOE has: (a) Notified the individual of the polygraph examination in writing in accordance with §709.21; and (b) Obtained written consent from the individual. Before administering the polygraph examination, the examiner must: (a) Inform the individual of the use of audio and video recording devices and other observation devices, such as two-way mirrors and observation rooms; (b) Explain to the individual the characteristics and nature of the polygraph instrument and examination; (c) Explain the physical operation of the instrument and the procedures to be followed during the examination; (d) Review with the individual the control questions and relevant questions to be asked during the examination; (e) Advise the individual of the individual's privilege against self-incrimination; and (f) Provide the individual with a pre-addressed envelope addressed to the D/OCI in Washington, D.C., which may be used to submit comments or complaints concerning the examination. (a) DOE or its contractors may not: (1) Take an adverse personnel action against an individual solely on the basis of a polygraph examination result of “deception indicated” or “no opinion”; or (2) Use a polygraph examination that reflects “deception indicated” or “no opinion” as a substitute for any other required investigation. (b) The Secretary or the D/OCI may suspend an individual's access based upon a written determination that the individual's admission of involvement in one or more of the activities covered by the counterintelligence polygraph, when considered in the context of the individual's access to one or more of the high risk programs identified in §709.4(a)(1)–(8), poses an unacceptable risk to national security or defense. In such cases, DOE will investigate the matter immediately and make a determination of whether to revoke the individual's access. (a) DOE owns all polygraph examination records and reports. (b) Except as provided in paragraph (c) of this section, the Office of Counterintelligence maintains all polygraph examination records and reports in a system of records established under the Privacy Act of 1974, 5 U.S.C. 552a. (c) The Office of Intelligence also may maintain polygraph examination reports generated with respect to individuals identified in §709.4(a)(2) in a system of records established under the Privacy Act. (d) Polygraph examination records and reports used to make AAAP determinations or generated as a result of an exculpatory personnel security polygraph examination are maintained in a system of records established under the Privacy Act of 1974. (e) DOE must afford the full privacy protection provided by law to information regarding an employee's refusal to take a polygraph examination. (f) With the exception of the polygraph report, all other polygraph examination records are destroyed ninety days after the eligibility evaluation is completed, provided that a favorable recommendation has been made to grant or continue the access to the position. If a recommendation is made to deny or revoke access to the information or involvement in the activities that justified conducting the polygraph examination, then all the records are retained at least until the final resolution of any request for reconsideration by the individual or the completion of any ongoing investigation.
Title 10: Energy
PART 709—POLYGRAPH EXAMINATION REGULATIONS
Subpart C—Safeguarding Privacy and Employee Rights
§ 709.21 When is an individual notified that a polygraph examination is scheduled?
§ 709.22 What rights to counsel or other representation does an individual have?
§ 709.23 How does DOE obtain an individual's consent to a polygraph examination?
§ 709.24 What other information is provided to the individual prior to a polygraph examination?
§ 709.25 Are there limits on use of polygraph examination results that reflect “deception indicated” or “no opinion”?
§ 709.26 How does DOE protect the confidentiality of polygraph examination records?
