Summary of Decisions -January 16, 2023 - January 20, 2023

FOIA Appeal (FIA)

FOIA; Appeal Denied

On January 18, 2023, the Office of Hearings and Appeals (OHA) denied the Freedom of Information ( FOIA) Appeal filed by America First Legal Foundation (Appellant) from an interim response letter issued by the Department of Energy's (DOE) Office of Public Information (OPI). On Appeal, the Appellant argued that its request was entitled to expedited processing.

The Appellant argued that it had demonstrated compelling need in its FOIA request and, therefore, was entitled to expedited processing. While the Appellant's request met some of the factors necessary to be entitled to expedited processing, it did not identify a significant recognized interest that would be harmed if the OPI processed its request in the order it was received. Further, the Appellant is not "primarily engaged in disseminating information" as is required to be eligible for expedited processing on the basis of urgency to inform. Therefore, OPI's denial of expedited processing was appropriate. (OHA Case No. FIA-23-0007)

FOIA; Appeal Denied

On January 19 2023, the Office of Hearings and Appeals (OHA) denied the Freedom of Information Act (FOIA) appeal filed by Karla Todd (Appellant). The Appellant appealed a final determination issued by the Department of Energy's Office of Public Information, which indicated a search was conducted by the Office of Environment, Health, Safety and Security (EHSS) and the National Nuclear Security Administration (NNSA), and neither office located responsive documents.

In the appeal, the Appellant argued the DOE's search was not adequate because it was not calculated to discover documents more responsive to the request and should have included additional offices and entities, such as its national laboratories. The Appellant also argued she was improperly categorized as a "commercial" requester, because she sought records about herself, and her request was not for commercial gain or financial benefit.

Upon review of the Appellant's request, OHA found the Appellant's FOIA request, after being revised, was 18 pages in length, and sought all records on human research experiments, animal research, and military/intelligence activities in which she may have been involved, within the DOE, located anywhere within at least four states, and spanning twenty years.

OHA determined the DOE's search was adequate because: 1) it properly relied upon the personal knowledge and expertise of its agency officials to narrow the scope of their search and determine where responsive records would likely be found, and 2) the Appellant's request was very broad, did not identify specific DOE offices to be searched. OHA also determined the DOE classified the Appellant as an "other requester," the Appellant's designation as a "commercial" requester in the determination letter was a drafting error, and the error was harmless because she was not charged any fees associated with processing her request. (OHA Case No. FIA-23-0006)

Personnel Security Hearing (PSH)

Personnel Security Guideline G, access authorization restored

On January 19, 2023, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should be restored. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. The Individual reported to the local security office (LSO) that he was arrested and charged with driving while intoxicated (DWI) in August 2021. The LSO subsequently discovered the Individual had four alcohol -related arrests between 1991 and 2015. Regarding Guideline G, the LSO cited his diagnosis by a DOE Psychiatrist, Individual with Alcohol Use Disorder, Mild, in early remission, and his prior alcohol related arrests and charges . Regarding Guideline J, the LSO cited his alcohol-related arrests and his 1986 arrest for burglary of a vehicle.

At the hearing, the Individual testified that he has been abstinent from alcohol for sixteen months since his August 2021 DWI. He presented evidence that he had completed a six -week Employee Assistance Program (EAP) Alcohol Education and Awareness class. Moreover, he took further action steps by subsequently joining another EAP treatment group that he continues to participate in to ensure maintenance of his abstinence. His EAP Counselor testified that the Individual had demonstrated an impressive level of engagement and tangible progress in both EAP groups . Additionally, the Individual testified that he currently participates in a SMART Recovery treatment program and submitted a positive written statement from his SMART facilitator who corroborated his assertions that he implements the skills that he has learned. He also provided evidence of seven negative Phosphatidylethanol (PEth) tests to support his assertions of abstinence. Additionally, the Individual showed he had taken steps to change his social life by isolating himself from his old friends and avoiding social settings where alcohol is being consumed. The DOE Psychiatrist opined that the Individual had complied with all of his recommendations and had demonstrated adequate evidence of rehabilitation or reformation from  Alcohol Use Disorder, Mild. After considering the evidence in the record and testimony presented at the hearing, the Administrative Judge determined that the Individual had resolved the security concern associated with Guideline G. Regarding Guideline J concerns, since the behavior regarding the Individual's alcohol -related arrests was a direct result of his maladaptive alcohol use and the 1986 charge was so remote in time, the Judge found that the Individual mitigated the Guideline J concerns as well. Accordingly, she concluded that the Individual's access authorization should be restored. (OHA Case No. PSH-22-0130, Balzon)

Access Authorization Not Restored; Guideline J (Criminal Conduct)

On January 19, 2023, an Administrative Judge (AJ) determined that an Individual should not have his access authorization restored 10 C.F.R. Part 710. The DOE Local Security Office (LSO) discovered information regarding the Individual that included numerous allegations of harassment and abuse, which resulted in eight separate Orders of Protection filed against the Individual. Based on the information the LSO gathered regarding the various filings, 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 J of the Adjudicative Guidelines.

At the conclusion of the hearing, the AJ determined the following. The LSO appropriately invoked Guideline J by listing the several petitions for and orders of protection filed against the Individual by different individuals from 2009 through 2021. The AJ also concluded that the Individual did not put forth sufficient evidence to resolve the security concerns for the following reasons. First, the most recent order for protection was issued approximately a year and a half before the hearing date, and it expired four months before the hearing. Relatively little time had elapsed since then, especially considering the Individual's record of being accused every few years of engaging in criminal conduct toward individuals with whom he has a relationship. Given the repeated nature of the allegations, the evidence in the record did not demonstrate that the criminal conduct arose from unusual circumstances such that it was unlikely to recur. The record did not demonstrate successful rehabilitation because the record did not contain evidence of restitution, job training or higher education, or significant constructive community involvement; and the above findings substantially outweighed the impact of the Individual's reported good work performance and his compliance with the terms of the most recent order for protection. Second, the record did not include evidence that established that the Individual was pressured or coerced into committing the instances of conduct listed by the LSO. Third, the record contained several allegations, from multiple sources, that the Individual engaged in abusive, harassing, and threatening behavior. The number, frequency, and similar nature of the allegations against the Individual weighed in favor of finding that there was reliable evidence that he committed the underlying acts despite his excuses and explanations. Accordingly, the AJ concluded that the Individual had not resolved the Guideline J security concerns. (OHA Case No. PSH-23-0006, Thompson)

Access Authorization Granted; Guideline E (Personal Conduct)

On January 18, 2023, an Administrative Judge determined that the Individual's access authorization should be granted under 10 C.F.R. Part 710. In April 20221, the Individual completed a Questionnaire for National Security Positions (QNSP). During the Enhanced Subject Interview (ESI), the Individual self- reported that he had used marijuana, although he had answered that question negatively on the QNSP. The Individual testified that when completing his QNSP, he was concerned that he would not keep his employment if he admitted his marijuana use.  He also testified that the question was at the end of the questionnaire, and he answered quickly. The Individual's friend, who testified on his behalf and has known him since approximately 2014, stated that the Individual is the "good child" of the family and the conscience in their friend group. The friend testified that he believes the Individual got " flustered" when asked the question. The Individual said that being in front of the Office of Personnel Management investigator made him realize he had omitted the information on the QNSP and that he should correct it. Given the Individual's voluntary and prompt report of his omission and the fact that such behavior appears abnormal for him, the Judge found that the Individual had mitigated the behavior which raised the Guideline E concern.  Also, the Judge found the Individual and his friend to be persuasive witnesses.  The Administrative Judge found that he has mitigated the concerns raised by his omission on the QNSP. Accordingly, the Individual was able to demonstrate that he had resolved the security concerns arising under Guideline E. (OHA Case No. PSH-23-0010, Fishman)