Decisions were issued on: - Personnel Security - FOIA Appeal
Office of Hearings and Appeals
December 17, 2021
minute read time
Decisions Issued:
Appeal Granted; Agency Records
On December 13, 2021, the Office of Hearings and Appeals (OHA) granted a Freedom of Information Act (FOIA) appeal filed by DLA Piper (Appellant) concerning the response of the Oak Ridge Office (ORO) to its FOIA request for a documents regarding a technology transfer license between a DOE Contractor and a third party. ORO denied the request on the grounds that any relevant records would be contractor-owned pursuant to the Prime Contract between DOE and the Contractor and, therefore, the records would not be subject to the FOIA. On appeal, Appellant asserted that the relevant records were government-owned. The OHA determined that contractor-owned records may still fall within the scope of the FOIA and that ORO had not performed the necessary analysis to determine whether the relevant records were subject to the FOIA. The OHA determined that ORO's determination letter did not provide an adequate reason to deny the FOIA request. Accordingly, OHA granted the appeal and remanded the matter to ORO for further processing. OHA Case No. FIA-22-0001.
Clearance Denied; Guideline E (Personal Conduct), Guideline H (Drug Involvement and Substance Misuse)
On December 15, 2021, an Administrative Judge determined than an Individual should not be granted access authorization under 10 C.F.R. Part 710. The Individual was an applicant for a position with a Department of Energy (DOE) contractor that would require the Individual to hold access authorization. The Individual certified on a background questionnaire that he had not used illegal drugs in the preceding seven years. However, a few months later, the Individual admitted to an investigator that he had tried marijuana for the first time one month prior to certifying his questionnaire. At the time, he explained that he had forgotten about the drug use when filling out the questionnaire.
At the hearing, the Individual presented evidence that he had not used marijuana since the date one month before certifying his questionnaire. However, he admitted that he disclosed the incident to the investigator because he realized during that interview that the background investigation process was serious and feared he would be subject to drug testing that would reveal his drug use. The Administrative Judge found that the Individual had mitigated the Guideline H concerns because the drug use was one time and was unlikely to recur. However, the Administrative Judge found that the Individual had not mitigated the Guideline E concerns because the Individual's explanations for his omission continued shifting throughout the administrative review process and, even if the omission was a memory lapse, the Individual's statements cannot be relied upon to be accurate. Accordingly, the Administrative Judge recommended that DOE should not grant access authorization to the Individual. OHA Case No. PSH-21-0096 (Kristin L. Martin)
Clearance Restored; Guideline G (Alcohol Consumption)
On December 17, 2021, an OHA Administrative Judge (AJ) issued a decision in which she determined that an Individual's DOE access authorization should be restored. To support the Guideline G security concerns, the LSO relied upon the fact (1) in March 2021, a DOE Psychologist evaluated the Individual and determined that he met the criteria for Alcohol Use Disorder (AUD), Moderate, not in remission, pursuant to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5), and further, that there was no evidence of adequate rehabilitation or reformation; (2) the Individual was arrested and charged with Aggravated DWI in July 1995; and (3) the Individual was arrested and charged with DWI in July 1993 with a blood alcohol content (BAC) of .15 g/L. The Individual presented evidence that he had been attending AA, seeing a counselor, and was attending an outpatient treatment program. In addition, the Individual testified, supported by his two witnesses, that he had been abstinent since February. The DOE Psychologist opined that, based on the Individual's actions since February 2021, that he is reformed from his AUD diagnosis. Therefore, the AJ determined that the Individual's security clearance should be restored. OHA Case No. PSH-21-0111 (Janet R. H. Fishman).
Clearance Not Granted; Guideline G (Alcohol Consumption); Guideline J ( Criminal Conduct)
On December 16, 2021, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should not be granted. The Individual is employed by a DOE contractor in a position that requires him to hold a DOE security clearance. As part of the investigation for his security clearance, the Local Security Office (LSO) learned of the Individual's involvement in numerous alcohol-related criminal incidents. Subsequently, the Individual was evaluated by a DOE consultant psychiatrist (Psychiatrist) in December 2020. The Psychiatrist diagnosed him with Alcohol Use Disorder, Moderate, and concluded that the Individual habitually or binge consumes alcohol to the point of impaired judgment. The Psychiatrist also determined that the Individual had not demonstrated adequate evidence of rehabilitation or reformation. During the hearing, the Individual recounted his criminal history, dating back to 1992, and alcohol-related incidents, dating back to 1996. The hearing testimony revealed that, despite knowing that the DOE had concerns about his alcohol consumption in 2012, the Individual had only begun seeking treatment in May 2021. Further, as of the date of the hearing, he had only been abstinent from alcohol for approximately 40 days. After considering the evidence in the record and testimony presented at the hearing, the Administrative Judge determined that the Individual had not resolved the security concerns associated with Guideline G and Guideline J. Accordingly, she concluded that the Individual's access authorization should not be granted. OHA Case No. PSH-21-0098 (Katie Quintana)