Summary of Decisions - October 21, 2013 – October 25, 2013

Freedom of Information Act Appeals

On October 24, 2013,  OHA issued a decision denying an appeal (Appeal) filed by Nuclear Watch New Mexico (the Appellant) regarding a Freedom of Information Act (FOIA) determination it received from the National Nuclear Security Administration (NNSA).  The Appellant filed a FOIA request with NNSA for records pertaining to a 2009 consulting agreement between an NNSA contractor and a third-party consulting company.  The Appellant contested NNSA’s determination in which NNSA concluded that, because the responsive documents were in the possession and control of the contractor at the time of the FOIA request and were not identified as DOE property in the contract between DOE and the contractor, the documents were not “agency records” subject to disclosure under the FOIA.  On appeal, OHA found that NNSA properly denied the Appellant’s FOIA request on the grounds that the requested documents were not agency records.  OHA Case No. FIA-13-0060A

On October 24, 2013, OHA denied an Appeal filed by the Oregonian of a FOIA determination issued by the Bonneville Power Administration (BPA).  In its FOIA request, the Oregonian appeal sought a security video of a motor vehicle accident involving a federal employee at a BPA parking ramp.  In considering the Appeal, OHA found that BPA’s withholding of the security video under FOIA Exemption 6 was proper since the release of this video could reasonably be expected to invade the privacy of several individuals appearing in the video.  OHA further determined that the release of the video would not shed any light upon the activities or operations of the government.  OHA Case No. FIA-13-0065

Personnel Security Hearing (10 CFR Part 710)

On October 23, 2013, an OHA Hearing Officer issued a decision in which she concluded that the DOE should not restore an individual’s suspended DOE access authorization.  A DOE Operations Office referred the individual administrative review, citing security concerns relating to the individual’s use of alcohol, including his April 2012 arrest for Driving Under the Influence, as well as opinions of a DOE consultant-psychiatrist that the individual met the criteria for alcohol abuse disorder and was a user of alcohol habitually to excess.  After conducting a hearing and evaluating the testimonial and documentary evidence, the Hearing Officer determined that the individual had failed to mitigate the security concerns related to his excessive consumption of alcohol.  Specifically, the Hearing Officer found the individual did not acknowledge his alcohol abuse disorder or that his drinking patter was of concern and, as a result, had failed to take steps necessary to address his alcohol problem.  In addition, the Hearing Officer concluded that the individual had demonstrated poor judgment with respect to his use of alcohol in the past, and his alcohol consumption continued to raise significant concerns regarding his judgment, reliability, and trustworthiness.  OHA Case No. PSH-13-0090 (Diane DeMoura)

On October 21, 2013, an OHA Hearing Officer issued a decision in which he determined that an individual’s DOE access authorization should not be restored.  The record showed that the individual had a history of three alcohol-related arrests.  A DOE psychologist also diagnosed the individual with Alcohol Abuse.  Based upon the evidence and testimony presented, the Hearing Officer found that the individual had not shown that he was reformed or rehabilitated from his Alcohol Abuse.  The Hearing Officer further determined that the individual had not mitigated the security concerns raised by his criminal activity since that activity was symptomatic of his Alcohol Abuse.   OHA Case No. PSH-13-0083 (Steven L. Fine)

On October 25, 2013, a Hearing Officer determined that an individual’s security clearance should be restored.  In reaching this determination, the Hearing Officer found that the individual had successfully addressed the DOE’s security concerns relating to her use of alcohol, based upon her showing that she had eight and one-half months of responsible alcohol use and was continuing in professional counseling.   Based upon this evidence, and the opinion of a DOE psychologist, the Hearing Officer concluded that the individual had demonstrated rehabilitation from her diagnosis of Alcohol Use Disorder NOS, and that she was no longer a user of alcohol habitually to excess. OHA Case No. PSH-13-0078 (Robert B. Palmer)