Summary of Decisions - September 19, 2022 - September 23, 2022

FOIA Appeal (FIA)

FOIA; Appeal Denied

On September 22, 2022, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) appeal filed by Savannah River Site Watch concerning a FOIA request made to the Department of Energy's (DOE)'s National Nuclear Security Administration (NNSA). Appellant's FOIA request sought reports pertaining to the Mixed Oxide (MOX) project including any project closure reports, project termination reports, lessons learned reports and "best practices" reports or assessments  concerning performance of NNSA and contractors during the time the project was winding down and after the MOX project termination was allowed to proceed by federal court. The Appellant narrowed the temporal scope of his FOIA request for reports from January 1, 2016, through November 19, 2021. NNSA referred the search to Savannah River Field Office (NA-SV) who referred the search to Savannah River Acquisition and Project Management Office (APMO) to conduct a search for responsive documents. APMO located three responsive documents which NNSA released to the Appellant. The appeal asserted that NNSA conducted an inadequate search because the responsive documents contained references to four additional missing documents, which Appellant contended should have been provided to him. APMO conducted searches using key words from Appellant's FOIA request, and searched locations that were all database that would include any " lessons learned" documents to the MOX project. APMO also searched the databases for the MOX Termination Project. Moreover, subsequent to being contacted by OHA regarding the appeal, APMO conducted new searches to attempt to locate two of the allegedly missing, responsive documents discussed in the appeal. OHA found that APMO provided a sufficiently detailed description of its searches, including the search terms used, the locations and storage systems where it searched, and how the search was conducted. Upon review, OHA determined that the searches were reasonably calculated to uncover responsive documents. Therefore, OHA denied Appellant's appeal . OHA Case No. FIA-22-0027

FOIA; Appeal Denied

On September 23, 2022 the Office of Hearings and Appeals (OHA) denied the Freedom of Information Appeal filed by Michael Ravnitzky (Appellant) from a final determination letter (Determination Letter) issued by the Department of Energy's Oak Ridge National Laboratory (ORNL/UT-Battelle) on September 9, 2022). On Appeal, the Appellant argued that the agency failed to conduct an adequate search.

On September 8, 2022, ORNL sent the Appellant a final Determination Letter informing the Appellant of the searched conducted and the results they yielded. In a timely filed appeal, the Appellant argued that ORNL/UT-Battelle should have conducted a proper search. The Appellant cited a press release that indicated Les Price had chaired the Red Team reviews of [US International Fusion Energy Organization (US ITER)] program. The Appellant also asserted that the response was too specific, and that if a particularly restrictive search was performed, then the search would naturally fail to yield and meaningful results. Finally, the Appellant asserted that the search may have been conducted by an office that was not entirely objective.

The press release to which the Appellant referred was not released by the DOE, and a press release that was issued by ORNL on the matter did not mention Les Price. Further, it was ascertained that the assertion that the search was not conducted by an objective office may have been the result of a misunderstanding.

Regarding the searches that were conducted, OHA learned that searches had been conducted in the iDOCS system, where these documents are customarily maintained, as well as SharePoint and relevant group folders.

OHA's review of the search shows ORNL/UT-Battelle "conduct[ed] a search reasonably calculated to uncover all relevant documents." Truitt, 897 F.2d at 542. The facts indicate that ORNL/UT-Battelle made a good faith effort, using a thorough list of search terms and searching all offices where records could reasonably be expected to be found. Accordingly, we find ORNL /UT-Battelle's search was reasonable and used appropriate methods. (OHA Case No. FIA-22-0028)

Personnel Security Hearing (PSH)

Access Authorization Not Granted; Guideline F (Financial Considerations)

On September 23, 2022, an Administrative Judge (AJ) determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The DOE Local Security Office (LSO) discovered concerning information regarding the Individual's unpaid collection accounts and failure to file or pay federal and state income taxes for several years. Subsequently, the LSO informed the Individual that it possessed reliable information that created substantial doubt regarding his eligibility to possess a security clearance because the derogatory information raised security concerns under Guideline F of the Adjudicative Guidelines.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline F by citing that the Individual did not file federal or state income tax returns for tax years 2015 through 2019; he claimed an incorrect marital status for his income tax filings for tax years 2012 through 2014; he failed to file his federal and state income tax returns for tax years 1999 through 2011, and he was no longer able to file these returns because too much time had elapsed; he estimated that he owed more than $54,992 for federal and state taxes; and he had four unpaid collection accounts that totaled $13,352.

The AJ also concluded that the Individual did not put forth sufficient evidence to resolve the Guideline F security concerns for the following reasons. First, there was no evidence that the Individual failed to pay his student loans or file his tax returns for reasons outside of his control. Second, the Individual did not demonstrate a reasonable basis to dispute his past -due debt. Third, the record demonstrated that the Individual had not yet made arrangements with the IRS or state tax authority to file or pay any amount owed because he was still in the process of completing and filing his delinquent tax returns, and he therefore could not be in compliance with any arrangements. Fourth, very little time had passed since the Individual began to take significant steps to address his failure to file tax returns; his conduct had been frequent because his financial issues continued year after year without any significant change in behavior or resolution; his behavior did not occur under such circumstances that it was unlikely to recur; and there was no evidence in the record to indicate that his failure to address his student loan debt or his tax obligations resulted from any circumstance other than his decision to avoid addressing the issues. Fifth, the AJ did not find sufficient evidence to conclude that the Individual had been appropriately addressing the matter despite obtaining financial counseling or that the Individual had initiated or adhered to a good -faith effort to repay overdue creditors or otherwise resolve his debts.

Accordingly, the AJ concluded that the Individual had not resolved the Guideline F security concerns . (OHA Case No. PSH-22-0101, Thompson III)

Access Authorization Restored; Guideline G (Alcohol Consumption) and Guideline E ( Personal Conduct)

On September 23, 2022, an Administrative Jude determined that the Individual's access authorization should be restored 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 to carry out specific work tasks. the Local Security Office (LSO) received potentially derogatory information regarding the Individual's alcohol consumption. The LSO made a number of allegations. Under Guideline G, the LSO alleged that: 1) On December 22, 2021, the DOE Psychologist diagnosed the Individual with AUD, Severe, pursuant to the DSM-V; 2) the DOE Psychologist's report indicated that for two years the Individual was consuming increasing amounts of liquor, reaching approximately 4.4 to 5.25 liters of liquor a week, causing the Individual problems in his professional and work life, and resulting in the "sever[e] impair[ ment] of [the Individual's] judgement, reliability, emotional stability, and trustworthiness "; 3) the Individual checked into a treatment facility on September 21, 2021 and was diagnosed with AUD, Severe; 4) the treatment facility concluded that the Individual was consuming approximately 24 shots of liquor a day, and he did "pose an imminent danger" to those around him while carrying out his official duties; 5) the DOE Psychiatrist indicated the Individual was in very early remission and made recommendations pursuant to this assessment; 6) the treatment facility indicated that the Individual was at severe risk of relapse and recommended outpatient treatment; and 7) the Individual " participated in alcohol treatment, counseling, and education on at least two previous occasions [,]" prior to the revocation of his clearance in the 1990s, suggesting that the Individual should have known to avoid the misuse of alcohol. Under Guideline E, the LSO alleged that: 1) the Individual informed personnel at the inpatient treatment facility that his alcohol consumption increased in 2017, which is inconsistent with what he reported to the DOE Psychologist; 2) the Individual told the investigator during the ESI that he had been consuming one alcoholic beverage two to three times per week, which appeared to be inconsistent with the information he gave personnel at the inpatient treatment facility; 3) the Individual told personnel at the inpatient treatment facility that he had not received any prior treatment or counseling, but stated during the ESI that he had participated in his employer's Employee Assistance Program Referral Option (EAPRO) after the 1993 DUI charge; 4) the Individual told personnel at the inpatient treatment center that he had never attempted to remain abstinent from alcohol before, but the EAPRO program required that the Individual remain abstinent from alcohol for two years; 5) the Individual completed 96 hours of treatment following his 1999 DUI charge, which he failed to disclose to personnel at the inpatient treatment facility; 6) although the Individual received treatment and/or counseling through EAPRO in 1993 and the 96 hours of treatment he received following his 1999 arrest, the Individual did not seek appropriate treatment in the years during which his alcohol intake increased, creating a security risk; and 7) some additional information the Individual provided to personnel at the inpatient treatment facility was inconsistent with the information he provided the DOE Psychologist.

At the hearing, the Individual and the DOE Psychologist testified. The evidence in the record established that the Individual had voluntarily sought treatment at an inpatient treatment facility, that he had been abstinent from alcohol for approximately eleven months, and that he had been participating in Alcoholics Anonymous (AA) meetings with the assistance of a sponsor. The Individual had also submitted three negative alcohol tests to bolster his assertion of ongoing abstinence. The Individual had also developed coping strategies and found incentives to remain abstinent. The DOE Psychologist testified that the Individual had shown adequate evidence of rehabilitation or reformation, and that the Individual was in sustained remission. The DOE Psychologist also testified that regarding the Individual's less than forthcoming behavior, he did not deem it a "character issue." Based on the evidence, the Administrative Judge concluded that the Individual had mitigated Guideline G concerns pursuant to the mitigating factor at ¶ 23(b) of the Adjudicative Guidelines. The Administrative Judge also determined that the Individual has mitigated the Guideline E concerns pursuant to the mitigating factor at ¶ 15(d), as the stressors, circumstances, or factors that caused his less than forthcoming behavior have been alleviated through treatment, and the alleged behavior was unlikely to recur due to the Individual's ongoing abstinence from alcohol. (OHA Case No. PSH-22-0103, Cronin)

Access Authorization Denied; Guideline G (Alcohol Consumption)

On September 21, 2022, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should be denied. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. In completing a Questionnaire for National Security Positions (QNSP) in January 2020, the Individual disclosed that he had previously been arrested and charged with "Drunk in Public." In completing a Letter of Interrogatory (LOI) in January 2022, the Individual disclosed that, in 2019, his wife called law enforcement due to his intoxication. In February 2022, the Individual underwent a psychological evaluation with a DOE consultant psychologist (Psychologist). The Psychologist opined that the Individual binges alcohol habitually two to four times per month to the point of impaired judgment. She concluded that, at the time of the evaluation, the Individual had not demonstrated adequate evidence of rehabilitation. At the hearing, the Individual testified that, although he had reduced his alcohol consumption, he does not count the number of alcoholic beverages he consumes on any given occasion. He further provided discrepant testimony regarding his current alcohol consumption patterns. After hearing the Individual's testimony, the Psychologist opined that the Individual continued to engage in binge drinking and had not demonstrated that he had "rehabilitated or otherwise reformed his use of alcohol." After considering the evidence in the record and testimony presented at the hearing, the Administrative Judge determined that the Individual had not resolved the security concerns associated with Guideline G . Accordingly, she concluded that the Individual's access authorization should be denied. OHA Case No. PSH-22-0094 (Katie Quintana)

Access Authorization Restored; Guideline G (Alcohol Consumption)

On September 22, 2022, an Administrative Jude determined that the Individual's access authorization should be restored 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 to carry out specific work tasks. the Local Security Office (LSO) received potentially derogatory information regarding the Individual's alcohol consumption. The LSO alleged that the Individual was charged with DUI in 2006 when he consumed six alcoholic beverages and his breath alcohol concentration (BAC) registered at .159. The Individual was charged with DUI in 2004 after consuming four to six alcoholic beverages and his BAC registered at .166. the LSO also alleged that on February 11, 2022, the DOE Psychiatrist evaluated the Individual and indicated in his March 2022 report that pursuant to the DSM-V, the Individual met the diagnostic criteria for AUD, Moderate, without adequate evidence of rehabilitation or reformation.

At the hearing, the Individual, his former supervisor, his wife, his counselor, and the DOE -contracted Psychologist (DOE Psychologist) testified. The evidence in the record established that the Individual self-reported the fact that he voluntarily began seeking treatment from an intensive outpatient treatment program (IOP) on December 14, 2021. The Individual felt that his alcohol consumption had become problematic, and he completed the 90-day IOP. Although it was established that it is generally recommended that IOP participants join a self -help group like Alcoholics Anonymous (AA) upon their completion of the program, the Individual failed to do so. A letter from the medical director of the IOP indicated that he did not believe AA participation was necessary for the Individual. The record also established that the Individual continued to receive aftercare. The Individual, his wife, and his counselor all testified that the Individual has developed appropriate coping mechanisms to deal with the stress that would cause him to drink. The Individual had also been honest with his friends and family regarding his abstinence and enjoys support from his wife, extended family, and other aftercare participants. Further, the evidence in the record indicates that the Individual has been abstinent since December 14, 2021. The DOE Psychologist indicated in his testimony that he would have felt more secure about the Individual's rehabilitation had the Individual submitted an updated negative Phosphatidylethanol (PEth) test. The record did contain evidence of four negative urine tests . On balance, the Administrative Judge did not believe the PEth test is necessary to show that the Individual has mitigated the stated Guideline G concerns. Based on the evidence, the Administrative Judge concluded that the Individual had mitigated Guideline G concerns pursuant to the mitigating factor at ¶ 23(b) of the Adjudicative Guidelines. (OHA Case No. PSH-22-0110, Rahimzadeh)

Access Authorization Restored; Guidelines G (Alcohol Consumption) and J (Criminal Conduct).

On September 22, 2022, an Administrative Judge determined that the Individual's access authorization should be restored under 10 C.F.R. Part 710. The Individual is employed by a DOE contractor in a position that requires her to hold a security clearance. The Local Security Office (LSO) received derogatory information regarding the Individual's alcohol use and criminal conduct. Regarding Guideline G, the LSO cited his diagnosis by a DOE Psychiatrist of Alcohol Use Disorder, Severe, in early remission, and her two alcohol-related arrests, an August 2021 Driving Under the Influence (DUI) and a February 2010 Driving While Intoxicated.  Regarding Guideline J, the LSO cited her alcohol - related arrests and a 2006 Larceny charge. The Judge found that the Individual has mitigated the Guideline G concerns regarding her alcohol use. The Individual testified that she has been abstinent since her August 2021 DUI alcohol-related arrest. She has voluntarily submitted to phosphatidylethanol (PEth) testing since October 2021 and underwent random alcohol and drug tests in September and October. The Individual voluntarily entered the alcohol awareness and education program at the Employee Assistance Program (EAP). Further, she began attending Alcoholics Anonymous (AA), individual counseling, and an additional self -help group. In addition, the Individual has an AA sponsor and is working on step 9 of the 12 steps. At the hearing, the DOE Psychologist declared that the Individual's "this is . . . probably the most thorough, comprehensive and persuasive example of the steps that someone has taken to demonstrate their -- not just rehabilitation, not just that they're not drinking, but the reformation and their life changes, than I have maybe seen in all those years." Further, the DOE Psychologist opined that the Individual has demonstrated reformation or rehabilitation "in spades" and that her risk of relapse is "low, very low." Based on the facts, the Judge found that the Individual met the mitigating conditions set forth under Guideline G.  Regarding the Guideline J concerns, since the behavior regarding the two alcohol -related arrests was a direct result of her maladaptive alcohol use and that the larceny charge was so remote in time, the Judge found that the Individual mitigated the Guideline J concerns as well. Accordingly, the Individual was able to demonstrate that she had resolved the security concerns arising under Guidelines G and J. (OHA Case No. PSH-22-0099, Fishman)