Summary of Decisions - June 20, 2016 – June 24, 2016

Personnel Security (10 CFR Part 710)

On June 21, 2016, an OHA Administrative Judge issued a decision in which he concluded that an individual’s security clearance should not be restored. Following the arrest of a co-worker, the individual undertook several actions which led to the LSO suspending her access authorization due to security concerns arising under Criterion L. After evaluating the arguments of the parties and the entirety of the record, the Administrative Judge held that the individual’s conduct evidenced questionable judgment, dishonesty, unreliability and untrustworthiness when she, inter alia: (1) removed an email (from a local law enforcement agency) containing her co-worker’s arrest information from her supervisor’s office without his permission and emailed it to her own government and personal email accounts, thereby converting a federal government document to one for personal use; (2) used government time and resources by requesting a federal contractor employee to provide her with the fax number of a local Rotary Club and, thereafter, attempting to fax her co-worker’s arrest information to the local Rotary Club using government equipment; (3) used government time and resources to research her co-worker’s arrest; (4) used government time and resources by anonymously disseminating (via a digital scanner) her co-worker’s official arrest report to at least four co-workers; and (5) breached a non-disclosure agreement (which she signed at the beginning of an interview conducted as part of an internal investigation of the anonymous dissemination of the co-worker’s arrest information) by telephoning a co-worker to discuss an issue raised by the investigator within 20 minutes of leaving the interview. The Administrative Judge found that the individual did not bring forth information that resolved the Criterion L security concerns arising from the foregoing and, therefore, her access authorization should not be restored.  OHA Case No. PSH-16-0007 (Wade M. Boswell)

On June 22, 2016, an Administrative Judge issued a decision in which he found that individual’s access authorization should not be restored. In reaching this determination, the Administrative Judge found that the individual had not resolved security concerns under Criteria H, J and L regarding three Driving While Intoxicated arrests and two opinions from a DOE psychologist that the individual suffers from Alcohol Abuse. The individual submitted evidence of his completion of an alcohol awareness course and his ongoing participation in a peer support treatment program. At the hearing, the DOE psychologist found that the individual’s current treatment program was inadequate given the fact that treatment was not being provided by licensed mental health practitioners and that the individual had not completed her recommended 24-month period of abstinence and treatment. The Administrative Judge found that the DOE psychologist’s testimony regarding the state of the individual’s rehabilitation was persuasive and thus found that the individual had not resolved the Criteria H and J concerns relating to his diagnosis of Alcohol Abuse. The Criterion L concerns arose from the individual’s history of alcohol-related arrests. Given the individual’s lack of rehabilitation from his Alcohol Abuse disorder, the Administrative Judge found that the individual had not resolved the Criterion L concerns arising from his pattern of criminal conduct. Consequently, the Administrative Judge found that the individual’s security clearance should not be restored.  OHA Case No. PSH-16-0021 (Richard Cronin)

On June 24, 2016, an Administrative Judge issued a decision in which he found that individual’s access authorization should be restored. In reaching this determination, the Administrative Judge found that the individual had resolved security concerns under Criterion L regarding her failure to file 2013 Federal and State tax returns. The individual submitted evidence showing that her failure to file the returns was caused in part by complications relating to her “short sale” of a house and her daughter’s serious medical issues which required her full attention during the tax preparation season. The individual also presented the testimony of her husband and supervisor, as well as her daughter’s medical records, to substantiate her testimony. The individual also submitted evidence indicating that she has now filed her delinquent 2013 Federal and State tax returns and that she has received a tax refund from each return. Given the unique circumstances surrounding the individual’s failure to file her 2013 tax returns, and the fact that there was no evidence that she had failed to file returns in the past, the Administrative Judge found that the individual had resolved the Criterion L concerns arising from her failure to file her 2013 Federal and State tax returns. Consequently, the Administrative Judge found that the individual’s security clearance should be restored.  OHA Case No. PSH-16-0029 (Richard Cronin)    

On June 23, 2016, an OHA Administrative Judge issued a decision in which he determined that an individual’s request for DOE access authorization should not be granted.  The individual was $16,941 past due on his primary mortgage, had an outstanding collection account that was $98 past due, had admitted during a September 16, 2015, personnel security interview that his financial difficulties were the result of being financially irresponsible, by overspending and not living within his means, and had admitted that he had not made any payments on his outstanding second mortgage for seven months.  The Administrative Judge found that the individual had mitigated the security concerns arising from his outstanding collection account by submitting evidence showing that he had paid it in full.  However, the Administrative Judge was not convinced by the individual’s contentions that he had agreed to a loan modification program with his primary mortgage lender.  Nor was the Administrative Judge convinced that the individual had a reasonable and feasible plan to handle his finances going forward.  The Administrative Judge found that the budget plan submitted by the individual was poorly thought out and incomplete.  Moreover, the individual submitted no evidence in support of his contention that he was close to a refinancing of his home that would address his delinquent second mortgage.  Accordingly, the Administrative Judge found that the individual had not resolved all of the security concerns raised by DOE.  OHA Case No. PSH-16-0018 (Steven L. Fine)

On June 21, 2016, an OHA Administrative Judge issued a decision in which she determined that an individual’s access authorization should be restored.  In reaching this determination, the Administrative Judge found that the individual had resolved the security concerns arising from her failure to file her federal and state income taxes for the years 2013 and 2014.  The individual testified that she separated from her abusive ex-husband in 2010, leaving her with substantial credit card debt.  In 2013, the individual lowered the amount of withholding that the IRS was taking from her pay check in order to pay her mortgage, not realizing it would cause her to owe substantial taxes in 2013.  She completed her 2013 taxes and filed for an extension when she realized she owed a large tax payment.  In 2014, she again completed her taxes and filed for an extension, but did not file her taxes.  Finally, in early 2016, the individual completed and filed her 2013, 2014, and 2015 federal and state tax returns.  She is now current on all payments to both Federal and State tax authorities.  Therefore, the Administrative Judge found that the individual had resolved the Criterion L concerns.  OHA Case No. PSH-16-0030 (Janet R. H. Fishman)

On June 20, 2016, an Administrative Judge issued a decision in which she determined that an individual's access authorization should be granted.  In October 2015, as part of a background investigation, the Local Security Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address concerns about his gambling.  In addition to the PSI, the LSO requested the individual’s medical records and recommended a psychological evaluation of the individual by a DOE psychologist.  According to the DOE psychologist, the individual suffers from Gambling Disorder.  The DOE psychologist further concluded that the individual’s Gambling Disorder is a mental illness that causes or may cause a significant defect in his judgment and reliability.  During the hearing, the individual readily acknowledged his gambling problem and testified that he has not gambled since July 2015.  He further testified that he voluntarily took steps to end his gambling addiction by self-banning himself from casinos and by seeking the advice and support of an Employee Assistance Program (EAP) counselor as well at attending Gambling Anonymous meetings.  He offered the testimony of his EAP counselor who stated that the individual has a good prognosis because he has all of the motivating factors to succeed in recovery.  After listening to the hearing testimony, the DOE psychologist testified that the individual is doing the right things and understands the cost gambling has made to his personal life.  He further opined that the individual has a good prognosis and is at low risk of relapse moving forward.  The Administrative Judge was persuaded by the testimony of the DOE psychologist that the individual has presented adequate evidence of rehabilitation.  Accordingly, she found that the individual has sufficiently resolved the DOE’s security concerns under Criterion H.  OHA Case No. PSH-16-0012 (Kimberly Jenkins-Chapman)

On June 23, 2016, an Administrative Judge issued a decision in which he determined that an individual’s access authorization should be restored. The individual reported that his wages were being garnished by the State in which he resides for non-payment of taxes. He later informed the DOE that he had not filed his 2013 State and Federal tax returns. Because this failure to file raised security concerns under criterion (l), the individual’s security clearance was suspended, and he requested a hearing. At the hearing, the individual demonstrated that the 2013 returns had now been filed, and he explained that the delay had been caused in part by the complexity of his returns, his daughter’s illness, and his initial unwillingness or inability to hire a tax professional. He also testified that the 2013 returns were the only ones that he had failed to file, and that he would file all of his future returns in a timely manner. After reviewing this testimony and the record as a whole, the Administrative Judge determined that the failure to file was an isolated incident that was unlikely to recur. Consequently, he concluded that the individual had successfully addressed the DOE’s security concerns.  OHA Case No. PSH-16-0031 (Robert B. Palmer)

On June 23, 2016, an Administrative Judge issued a decision in which he determined that an individual's access authorization should not be restored.  According to the Notification Letter, the individual had failed to file his 2013 and 2014 federal and state tax returns, while admitting that he knew he was required by law to do so.  He had also stated on two QNSPs that he had not failed to file tax returns for various years, while later admitting that he should have indicated that he had failed to do so.  Finally, in 2015, he stated that he was not aware that he was required to list his failure to file tax returns on his QNSP, though he had been advised to do so in 2010.  The Local Security Office determined that security concerns fell under Criteria F and L for the individual’s actions.  At the hearing, the individual testified that he had failed to file his tax returns because of complacency, laziness, and a pattern he had developed of filing three years after the due date.  He maintained that, though he had been advised in 2010 that such behavior was against the law, and he came to understand it and filed his tax returns in a timely manner for a few years, by 2015 he had forgotten that understanding until he had another “epiphany” in April 2015.  The Administrative Judge found that the individual had not resolved the concerns about his failure to follow tax laws and not reporting that failure on his 2015 QNSP.  OHA Case No. PSH-16-0028 (William Schwartz)

Freedom of Information Act (FOIA) Appeals

On June 20, 2016, OHA denied a FOIA Appeal filed by Actuation Test Equipment Company from a determination issued by the Bonneville Power Administration (BPA) of the Department of Energy. In the Appeal, the Appellant challenged BPA’s withholdings under FOIA Exemption 7(F). After a review of the withheld information, OHA found that the redacted portion of the responsive document was appropriately withheld for security purposes. Therefore, BPA’s use of Exemption 7(F) was proper.  OHA Case No. FIA-16-0033