Decisions were issued on: - Personnel Security - FOIA Appeal - Whistleblower Protection
Office of Hearings and Appeals
February 5, 2021
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FOIA Appeal
Freedom of Information Act (FOIA) Appeal; Appeal Denied; Expedited Processing
On December 1, 2020, the Appellant, a reporter with DCReport.org, filed a FOIA request with OPI seeking records in the possession of the DOE Office of Intelligence and Counter- Intelligence from November 1, 2016 to the present concerning risks to national security posed by former President Trump. The Appellant also made a request for expedited processing, as the information would assist the public in understanding the activities of government.
On January 5, 2021, OPI issued an Interim Response Letter explaining that the Appellant failed to demonstrate compelling need. The Appellant filed her appeal on January 26, 2021. In her appeal, the Appellant requested the information based on the reasoning that any failure to expedite the requested documents could pose an imminent threat to the life or safety of an individual. She stated her purpose was to prevent further harm to U.S. citizens and residents. The Appellant also stated that the information was urgently needed and necessary to understanding the impact of former President Trump's years in office.
OHA determined that the Appellant failed to present any argument concerning expedited processing of her FOIA request on the basis of urgency to inform. Further, as the Appellant's justification cited a general threat to the safety of the public, it failed to allege any imminent harm to any specific subset or group of the citizenry as required by 5 U.S.C. § 552(a)(6)(E)( v)(I) and applicable case law. OHA Case No. FIA-21-0004
Personnel Security Hearing
Personnel Security; Access Authorization Restored; Guidelines E (Personal Conduct) and I ( Psychological Conditions)
On February 3, 2021, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should be restored. The Individual was arrested and charged with a DUI in June 2018. During his arrest, he stated to the arresting officer that he had consumed two beers. The arresting officer wrote in his report that he stated that he consumed several beers. When reporting the incident to the LSO, the Individual, attempting to correct the police report, stated that he told the officer that he had consumed two beers. He did not specify how much alcohol he consumed. After the incident report, the Individual was evaluated by a DOE consulting Psychiatrist. The DOE Psychiatrist diagnosed the Individual with an emotional, mental, or psychological condition that can impair his judgment, stability, reliability because the Individual was deceptive regarding his alcohol use during his DUI arrest. Following his arrest, the Individual attended five counseling sessions and five AA meetings. In addition, he has been abstinent since the night of his DUI. Also, he had 15 random alcohol tests, all of which were negative. The DOE Psychiatrist gave the Individual a very favorable prognosis based on several factors including his length of abstinence, his testimony regarding the DOE Psychiatrist's report, his completion of counseling, and the additional actions he took. Based on the testimony presented, the Administrative Judge determined that the Individual's access authorization should be restored. OHA Case No. PSH-21-0001 (Janet R. H. Fishman).
Whistleblower Hearing
In the mater of Leslie Smith; Whistleblower Hearing; Complaint Denied
On February 5, 2021, the Office of Hearings and Appeals (OHA) issued an order denying Mrs. Leslie Smith's complaint (Complaint) against Consolidated Nuclear Security, LLC ( CNS) under the Department of Energy's (DOE) Contractor Employee Protection Program, 10 C.F.R. Part 708 (Part 708). Mrs. Smith's Complaint alleged that she made eleven disclosures protected under Part 708 between April 2018 and July 2019 concerning violations of CNS policies, risks to safety and security, and retaliation and other unlawful acts.
According to Mrs. Smith, CNS terminated her employment in September 2019 in retaliation for making her protected disclosures. CNS argued that it terminated Mrs. Smith's employment after an internal investigation corroborated the accusations of two employees who alleged that Mrs. Smith used a racial slur in the workplace to describe her supervisor.
The Administrative Judge determined that five of Mrs. Smith's disclosures were protected under Part 708. However, the Administrative Judge concluded that only one of those disclosures was a contributing factor in Mrs. Smith's termination. The Administrative Judge determined that the other four disclosures were not contributing factors in Mrs. Smith's termination because too much time passed between Mrs. Smith's disclosures and CNS's alleged retaliatory acts or because the CNS personnel involved in the decision to terminate Mrs. Smith's employment lacked actual or constructive knowledge of the disclosures. With respect to the one disclosure that was a contributing factor in Mrs. Smith's termination, the Administrative Judge found that CNS would have terminated Mrs. Smith's employment regardless of her protected disclosure because of the findings of the CNS investigation corroborating Mrs. Smith's use of a racial slur to describe her supervisor, the lack of retaliatory animus on the part of the CNS personnel who were aware of Mrs. Smith's disclosure and involved in her termination, and CNS's evidence that it terminated comparator employees who it determined had used racial slurs. For those reasons, OHA denied the Complaint. OHA Case No. WBH-20-0006 (Steven Fine).