Summary of Decisions - April 1, 2013 – April 5, 2013

Personnel Security Hearing (10 CFR Part 710)

On April 1, 2013, an OHA Hearing Officer issued a decision in which he determined that the DOE should not grant an individual access authorization.  As security concerns, a Local Security Office (LSO) cited the individual’s 2001 indictment for violation of a federal criminal statute governing conduct of federal employees, and security infractions that she committed in 2010 and 2011, while in her current position, when she brought a cell phone into a Controlled Access Area.  The Hearing Officer found that the individual had resolved the concern raised by the 2010 and 2011 security infractions, given her lack of intent, the isolated nature of the events, the fact that she received re-training after the events, and the lack of any similar event since May 2011.  However, the Hearing Officer did not find that the individual resolved the concern raised by the conduct leading to her indictment in 2001, despite the fact that she was ultimately found not guilty of the crime charged.  The Hearing Officer did not find credible the individual’s claim that she believed she had her supervisor’s approval for employment outside her federal government position, and that even if she had such approval, it would have been based on false assurances given by the individual that she would not use government resources in performing the outside work.  The Hearing Officer also noted misleading statements by the individual in memoranda that she sent to an agency ethics counselor regarding the individual’s contacts with a government contractor regarding matters currently before her agency.  OHA Case No. PSH-12-0130 (Steven J. Goering, H.O.)

On April 2, 2013, an OHA Hearing Officer issued a decision in which he concluded that an individual’s security clearance should not be restored.  A Local Security Office suspended the individual’s security clearance because the individual demonstrated financial irresponsibility through his two bankruptcies within ten years, his current indebtedness, and his inability or unwillingness to live within his means.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented sufficient evidence to resolve these security concerns.  Specifically, he found that the individual exhibited poor judgment in voluntarily accumulating debt by habitually living beyond his means, and that his recent steps toward fiscal discipline since his more recent bankruptcy were insufficient mitigation of his failure to manage his financial affairs, which raised questions about his reliability, trustworthiness, and ability to protect classified information.  OHA Case No. PSH-12-0134 (William M. Schwartz, H.O.)

Freedom of Information Act (FOIA) Appeals

On April 2, 2013, OHA issued a decision denying in part a FOIA Appeal of a determination issued by the DOE Golden Field Office (GFO).  The Appellant appealed the GFO’s decision to withhold portions of the released documents pursuant to FOIA Exemptions 4 and 5.  The OHA reviewed the document and determined that the evaluator’s comments concerning the weaknesses and strengths of proposals were protected from release under the deliberative process privilege of Exemption 5.  However, the OHA concluded that the GFO did not explain why it had to redact the criterion listed for each proposal.  Thus, the OHA denied in part and remanded in part the Appeal.  OHA Case No. FIA-13-0016

On April 4, 2013, OHA issued a decision remanding in part an Appeal from a FOIA determination issued by the DOE Loan Programs Office (LPO).  The Appellant appealed the LPO’s decision to withhold information in the released documents pursuant to FOIA Exemptions 2, 4, 5 and 6, claiming that the LPO’s determination letter inadequately justified its redactions.  The Appellant also sought expedited processing of its Appeal, which the OHA denied, finding that there was no compelling need for expedited processing. The OHA concluded that the LPO properly invoked Exemption 6 as to withheld addresses and personal phone numbers, but did not properly support the majority of its justifications for invoking Exemption 5 and some of the Exemption 4 redactions.  Moreover, the OHA remanded the Appeal because the LPO failed to provide an explanation in its determination letter for invoking Exemption 2.  Accordingly the OHA remanded the Appeal in part the LPO for another determination concerning the Appellant’s FOIA request. OHA Case No. FIA-13-0018