Decisions were issued on: - Personnel Security - FOIA Appeal
Office of Hearings and Appeals
March 4, 2022
minute read time
FOIA Appeal (FIA)
FOIA Appeal; Appeal Denied; Agency Records
On February 28, 2022, the Office of Hearings and Appeals (OHA) granted a Freedom of Information Act (FOIA) appeal filed by DLA Piper (Appellant) concerning the response of the Oak Ridge Office (ORO) to its FOIA request for a documents regarding a technology transfer license between a DOE Contractor and a third party. ORO conducted a search of DOE records, but did not search DOE Contractor records, asserting that they are not agency records because the contract between DOE and the Contractor states that such records are contractor owned. On appeal, Appellant asserted that the search was inadequate and that the statement that the DOE Contractor records were not agency records was conclusory. The OHA determined that, while DOE was in possession of the Contractor records, it was not, in this instance, in control of those records. Accordingly, OHA denied the appeal. OHA Case No. FIA-22-0006.
Personnel Security Hearing (PSH)
Access Authorization Not Granted; Guidelines F (Financial Considerations) and I ( Psychological Conditions).
On March 2, 2022, an Administrative Judge determined that the Individual's access authorization should not be granted under 10 C.F.R. Part 710. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. The Local Security Office (LSO) received potentially derogatory information regarding the Individual's finances. The LSO alleged that the Individual's wife had made claims against the Individual regarding his gambling in the context of the couple's divorce proceedings. Further, it was determined that the Individual had large amounts of gambling winning and losses as well as casino withdrawals and deposits. The LSO also alleged that the Individual had used some of the proceeds from the sale of his home to cover gambling debts . Regarding the Guideline I concern, the DOE alleged that a DOE -consultant Psychiatrist (DOE Psychiatrist) diagnosed the Individual with Gambling Disorder, In Early Remission, which can impair the Individual's judgement, stability, and trustworthiness.
At the hearing, the Individual and the DOE Psychiatrist testified. The testimony and record revealed that the Individual had not entered counseling or a treatment program for his gambling problem, and although the Individual did present an opinion of a qualified mental health professional, the DOE Psychiatrist explained his concerns with her opinion. The Administrative Judge found the DOE Psychiatrist's report and his testimony significantly more convincing concerning the state of the Individual's gambling issues. Finally, the DOE Psychiatrist indicated that the Individual has an ongoing problem and indicated only a fair prognosis.
Regarding the Guideline F concerns, the Administrative Judge questioned whether the LSO had sufficient cause to raise a concern, as the evidence did not indicate that the Individual was in any financial distress. Consequently, the Administrative Judge determined that none of the information cited under Guideline F itself raised a security concern that would bar the Individual from holding a security clearance.
Despite this finding, the Individual had not mitigated or resolved the Guideline I concern. Accordingly, the Individual was not able to demonstrate that he had fully resolved the security concerns arising under Guideline I. (OHA Case No. PSH-22-0018, Fishman)