June 14, 2001

Mr. Micheal J. Waguespack, Director
Office of Counterintelligence
Department of Energy
Washington, DC 20586

RE: Revision to Polygraph Notification Letter (DOE Memo dated 5/31/01)

Dear Mr. Waguespack:

I have reviewed your memo referenced above, which purports to address and clarify the DOE Policy on requiring medical information (including lists of current medications and medical conditions) from National Laboratory employees subject to the Counterintelligence polygraph program. As you correctly state in your memo, questions of privacy and relevance have constituted the basis for Laboratory employee protest of "medical consent". I was cautiously hopeful when I read that, as a matter of policy "the medical consent form has been eliminated". However, you go on to write:

"While OCI is no longer requesting a medical consent, there may be situations where submission to an examination would be inappropriate on the basis of a current medical of psychological condition. It is in such circumstances where a waiver may be appropriate.

It is incumbent on applicants and incumbents to the high-risk programs to raise any medically related concerns (emphasis added). Although the pertinent language in the attachment addresses a waiver potential, it also provides that the candidate should take the initiative in seeking such a waiver."

The attachment entitled "Polygraph Examination Notification Letter" goes on to state:

"Pursuant to section 3135c of the NDAA for Fiscal Year 2001 (Public Law 106-398) the Secretary of Energy may waive the polygraph requirement if he or she determines, after consultation with the covered person and appropriate medical personnel, that the treatment of a medical of psychological condition of the covered person should preclude the administration of the polygraph examination. In addition, 10 CFR section 709.4(b)(2) provides that the DOE Test Center may grant a waiver to any individual who is being treated for a medical or psychological condition or is taking medication which, based upon consultation with the individual, is determined to preclude that individual from being tested. You may wish to consult your appropriate medical personnel to determine whether, based on these criteria, there is any indication that you should be precluded from being tested." (emphasis added)

I have several fundamental concerns about the content of the memo.

First, OCI appears to have created a duty on the part of Laboratory employees to identify "medically related concerns". As the technical staff at the Labs pointed out repeatedly during the October 1999 DOE Polygraph Hearings and subsequently to Dr. Andrew Ryan and Mr. David Renzelman, there are no scientific studies that identify medical conditions of relevance to the polygraph. Further, it is highly unlikely that a Laboratory Employee would suffer from a medical condition so unstable as to preclude attendance at work but not to taking the polygraph. Also, there are no guidelines, textbook chapters, or review articles in any medical, psychology or psychiatry journal that describe medical contra-indications to the polygraph. I have asked both Dr. Ryan and Mr. Renzelman to provide one - just one - such publication, and they have been unable to do so. Therefore, in the absence of any widely accepted medical guidelines, we judge this newly imposed duty as unreasonable. That technical staff may subsequently find themselves in violation of this ill-defined, inherently unanswerable requirement creates an liability that is prejudicial and unfair.

Next, the "Notification Letter" refers to "systematic quality control procedures" ensuring that the polygraph examinations conducted by the DOE are up to standards of the DOD Polygraph Institute (DOD-PI). We at the Labs have long requested an explicit listing of DOD-PI standards from Dr. Ryan, including but not limited to data on the sensitivity, specificity and predictive value of the CI polygraph examination, and none have been forthcoming. In the hope that you can remedy this failure, please of list of the "quality control" procedures. We look forward to evaluating them.

Third, the "Notification Letter" indicates that the Secretary of Energy will consult with "appropriate medical personnel" in deciding on an individual waiver. Who are the "appropriate medical personnel"? Would they be DOE physicians, and if so, will they perform an independent medical examination and review of each individual? Would they be the individual's family physician, or perhaps a subspecialist, and if so, is the individual responsible for any charges incurred? Upon what data and/or scientific publications would you recommend that these physicians make their determination (psychotic states or hospitalization for acute medical conditions excluded)?

Fourth, the "Notification Letter" asserts that the DOE Test Center (in our case, in Albuquerque) may make a waiver determination after consultation with the individual subject. Where and when does the consultation process take place? Who will participate? Is the employee expected to bring her/his physician (presumably at employee expense)? Employees have been strictly prohibited by Rule from bringing counsel or any other person to the Test Center. Have these rules changed? As 10 CRF does not provide for a time or place for consultation, are you proposing to re-write the Rule?

Lastly, the "Notification Letter" recommends that Employees who have questions -- such as those listed above -- should consult their Senior Manager. We view this as vacuous advice as our Senior Mangers have no ability to answer any of these items (let alone additional questions) as the DOE has failed to provide any guidance, briefings or substantive background material. This is at best a grave oversight, and leads us to question whether any serious quality control of any kind has been done since the Polygraph Program was initiated in early 2000, as you contend. Such are the problems that occur when there is no independent review by organizations outside of Government.

On final point: in leaving ambiguous what medical information will be used in determining eligibility to take a polygraph, and how it may be obtained, you have attempted to co-opt the medical community and make it complicit in violating medical privacy for no rational, scientifically justifiable purpose. I have already informed the New Mexico Board of Medical Examiners of this clear challenge to the ethics of licensed medical practitioners. Physicians will be informed by the Board that they may be asked to be complicit in an highly illicit scheme to gather medical information at the risk of harm to their patients. Few physicians, if any, will violate the sanctity of the doctor-patient relationship once notified by the Board of the complete absence of medical science to validate either the polygraph itself, or the process by which the DOE seeks to abrogate confidentiality.

In summary, your May 31, 2001 memo fails to address the fundamental concerns of technical staff at the National Laboratories regarding the relevance of medical information of any kind to the Polygraph. It appears that the DOE continues to insist on obtaining medical information from employees, indeed making it a formal, legally-binding duty on the part of the employee to provide such information. Further, your memo spells out a new consultative process without attention to the priviledges and rights of Laboratory employees, and without undertaking another Rule making Hearing as required by law when changes standing Rules are proposed. You have overstepped your authority, and put Laboratory employees at substantive risk.

We will inform the California Board of Medical Examiners that Employees of Sandia, and Livermore National Laboratories may seek consultation with their physicians in attempting to fulfil the onerous duty you have imposed upon them. We expect that the California Board will respond in a manner similar to that of their colleagues in New Mexico, and will do everything possible to uphold the privacy of the relationship between physicians and their patients, and medical privacy as well.

Cc:

C. Paul Robinson, President, Sandia National Laboratories
Joan Woodard, Exec. Vice-President, Sandia National Laboratories
Robert Kastenbaum, Sandia Legal Department