Decisions were issued on: - Personnel Security - FOIA Appeal
Office of Hearings and Appeals
December 11, 2020
minute read time
FOIA Appeal
Freedom of Information Act (FOIA) Appeal; Appeal Granted; Inadequate Search
On December 11, 2020, the Office of Hearings and Appeals (OHA) granted the Freedom of Information (FOIA) Appeal filed by Ms. Nancy Milburn of Arnold & Porter Kaye Scholer, LLP (Arnold & Porter) from a final determination issued by the Department of Energy's office of Public Information (OPI). On Appeal, in addition to taking issue with the adequacy of the final determination letter, the Appellant alleged that the agency had failed to conduct an adequate search for responsive records. An examination of the search certificate revealed that on October 24, 2020, FE conducted automated and manual searches for annual reports on the Petroleum Reserves Website, for annual reports kept in the file room, and for annual reports located in the "O drive." Only request A of the Appellant's amended FOIA request pertained to annual reports, and there was nothing in the search certificate that indicated FE searched for responsive documents outside of the annual reports that were sought after in request A. OHA could not verify how searches were conducted for responsive documents pursuant to requests B through I of the Appellant's amended FOIA Request and whether the searches were reasonably calculated to uncover responsive documents. The matter was remanded back to OPI so that the requested search can be conducted pursuant to the scope established by the Appellant's amended FOIA request. OHA Case No. FIA-21-0002
Personnel Security Hearing
Personnel Security; Access Authorization Not Restored; Guideline E (Personal Conduct) and Guideline G (Alcohol Consumption)
On December 11, 2020, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual was arrested for Aggravated Assault in October 2018 as a result of an altercation with his girlfriend after consuming alcohol. The Individual subsequently met with a DOE-contracted Psychiatrist ( DOE Psychiatrist) for a clinical interview. During the clinical interview, the Individual reported that he consumed alcohol in moderation and had not consumed alcohol for at least three weeks prior to the clinical interview. However, laboratory testing provided evidence that the Individual had consumed alcohol heavily within several weeks of the clinical interview. In light of this evidence that the Individual had misrepresented his alcohol consumption habits, the DOE Psychiatrist concluded that the Individual binge consumed alcohol to the point of impaired judgment and met the diagnostic criteria for AUD, Moderate, under the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition (DSM-5). The DOE Psychiatrist recommended that the Individual demonstrate rehabilitation or reformation by attending Alcoholics Anonymous (AA) meetings, obtaining an AA sponsor, and undergoing periodic random alcohol tests. At the hearing, the Individual testified that he had consumed six or seven beers in a sitting several days before the clinical interview, but had not disclosed that fact to the DOE Psychiatrist because he found the DOE Psychiatrist's questions concerning his alcohol consumption practices confusing. The Individual asserted that he did not believe that his consumption of alcohol was problematic because he only consumed alcohol occasionally and had not experienced occupational impairment or engaged in unlawful activity after drinking. The Individual indicated that he had last consumed alcohol several weeks prior to the hearing. The DOE Psychiatrist opined that his opinion was unchanged and that he did not expect the Individual to control his problematic alcohol consumption unless he abstained from alcohol. The Individual misrepresented his alcohol consumption to the DOE Psychiatrist, and his explanation for this misrepresentation was illogical and suggested that the Individual had not acted in good faith to fully disclose derogatory information. Accordingly, the Administrative Judge concluded that the Individual had not resolved the security concerns under Guideline E. Additionally, the Individual denied that his alcohol consumption was problematic, continued to consume alcohol, and did not follow the DOE Psychiatrist's recommendations for demonstrating rehabilitation or reformation. Thus, the Administrative Judge found that the Individual had not resolved the security concerns under Guideline G. Therefore, the Administrative Judge concluded that the Individual's access authorization should not be restored. OHA Case No. PSH-20-0041 (Kimberly Jenkins-Chapman).