Summary of Decisions - February 24, 2014 – February 28, 2014

Personnel Security (10 CFR Part 710)

On February 24, 2014, an Administrative Judge issued a decision in which he determined that an individual’s access authorization should not be restored. In reaching this determination, the Administrative Judge found that the individual had not resolved security concerns regarding an incident where the individual reported to work with an elevated breath-alcohol level, and a subsequent evaluative report from a DOE psychologist diagnosing him as suffering from Alcohol Dependence, not in remission. At the hearing, the individual presented evidence demonstrating that he had recently completed an intensive outpatient treatment program, was currently participating in Alcoholics Anonymous with a sponsor, and had a three-month period of abstinence from alcohol. However, the individual’s own therapist, as well as the DOE psychologist, opined that the individual had not completed a sufficient period of abstinence whereby they could conclude that the individual had a low probability of relapsing into problematic alcohol consumption. The Administrative Judge was persuaded by the expert testimony and concluded that, as of the date of the hearing, the individual had not provided sufficient evidence to resolve the security concerns related to his use of alcohol.  OHA Case No. PSH-13-0117 (Richard Cronin)

On February 28, 2014, an Administrative Judge issued a decision in which he determined that an individual’s access authorization should not be restored. In reaching this determination, the Administrative Judge found that the individual had not resolved security concerns regarding his two citations for shoplifting and false or misleading statements that he made to the DOE regarding those incidents. The Administrative Judge rejected the individual’s claim that he accidently left a retail establishment in 2013 without paying for the items in his cart. He also concluded that the individual’s misrepresentations during a personnel security interview cast into serious doubt his judgment, reliability and trustworthiness.  OHA Case No. PSH-13-0126 (Robert B. Palmer)

Freedom of Information Act (FOIA) Appeals

On February 24, 2014, OHA issued a decision granting in part an Appeal of a FOIA determination issued by the DOE’s Office of Health, Safety, and Security (DOE-HSS). The Appellant, Donna Deedy, sought records relating to the last Memorandum of Understanding submitted to the Department of Health and Human Services (HHS) signed by Secretary of Energy Samuel Bodman (MOU). In its response, DOE-HSS identified one document, consisting of a cover letter and a signed copy of the MOU by Secretary Bodman.  However, the document was not signed by the Secretary of Health and Human Services. DOE-HSS withheld the entire document pursuant to Exemption 5’s deliberative process privilege since DOE and HHS failed to come to an agreement concerning the MOU. After examining the document, OHA determined that page one of the document, a cover letter transmitting the proposed MOU, did not contain any deliberative material and, as such, was improperly withheld pursuant to Exemption 5. The rest of the document consisted of the MOU. OHA determined that based on the information provided by DOE-HSS, the MOU had not been finalized and thus represented a pre-decisional draft by DOE for HHS’s consideration. Consequently, the MOU itself was a pre-decisional, deliberative document that would be properly protected pursuant to Exemption 5’s deliberative process privilege. OHA remanded the matter to DOE-HSS so that it could issue a new determination regarding the cover letter portion of the document. OHA Case No. FIA-14-0011

On February 28, 2014, OHA denied a FOIA Appeal filed by Exchange Monitor Publications (Appellant) of a determination issued by the Office of the Information Resources (OIR).  In its request, the Appellant asked for all electronic communications between the offices of the Deputy Secretary of Energy, Assistant Secretary for Fossil Energy, and the National Energy Technology Lab (NETL) Director regarding concerns over NETL management between June 1 and September 27, 2013. OIR released five documents but withheld portions under the deliberative process privilege outlined in Exemption 5 of the FOIA.  In its Appeal, the Appellant challenged those withholdings, claiming that because the NETL Director had been dismissed prior to the September 25 e-mails from the withheld information, those e-mails could not contain information that was pre-decisional.  OHA reviewed copies of the September 25 e-mails and disagreed.  OHA found that the e-mails contained pre-decisional information regarding issues other than the NETL director’s dismissal.  Therefore, OHA denied the Appeal.  OHA Case No. FIA-14-0010

Alternative Fuel Transportation Program Appeal (10 CFR Part 490)

On February 27, 2014, OHA issued a decision denying an Appeal filed by Washington State Fleet Operations (Washington) of a determination issued by DOE on September 25, 2013, under provisions of the Alternative Fuel Transportation Program (AFTP), 10 CFR Part 490.  In its determination, DOE denied a request filed by Washington for 20 exemptions from the State Agency’s Model Year (MY) 2012 alternative fuel vehicle (AFV) purchase requirements under the AFTP.  Washington’s appeal was based upon its claims that: (1) it lacks available alternative fuel, and (2) that it purchases “high mileage hybrid vehicles instead [of AFVs] to reduce our fuel consumption and greenhouse gas emissions.”  After carefully considering the Appeal filed by Washington, OHA’s Director found it to be without merit since alternative fuels were accessible for 20 of Washington’s fleet vehicles.  OHA further found that exemption relief was not available for Washington’s purchases of high mileage hybrid vehicles because that basis for relief is not among the specific three grounds for approval of exemption relief set forth in the regulations.   OHA Case No. EXA-13-0001