Summary of Decisions - February 19, 2024 -February 23, 2024

FOIA Appeal (FIA)

Freedom of Information Act; Adequacy of the Search, Agency Records; Appeal Denied

On February 22, 2024, the Office of Hearings and Appeals (OHA) denied the Freedom of Information Act (FOIA) Appeal filed by Martin Pfeiffer (Appellant) from a determination letter issued by the Department of Energy's (DOE) National Nuclear Security Administration (NNSA). In the determination letter, NNSA stated that the requested records were contractor records and, therefore, not agency records subject to the FOIA. On appeal, the Appellant challenged the adequacy of NNSA's search and argued that DOE did not cite to the original contract governing the ownership of the records. After reviewing the contract, we found that the requested records were contractor -owned under the original contract and current contract. We further found that the government does not exert control over the records. Accordingly, we found that the requested records are not agency records and are not subject to the FOIA. For this reason, we deny the appeal. (OHA Case No. FIA-24-0014) (OHA Case No. FIA­-24-0014)

Personnel Security Hearing (PSH)

Access Authorization Granted; Guideline I (Psychological Conditions)

On February 23, 2024, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should be granted. The Individual is an employee with a DOE contractor in a position that requires her to hold a security clearance. In November 2022, as part of the security clearance application process, the Individual completed a Questionnaire for National Security Positions (QNSP). In response to a question regarding her psychological and emotional health, the Individual reported that she had been diagnosed with Borderline Personality Disorder (BPD) in approximately November 2021. The Individual subsequently underwent a psychological evaluation with a DOE-consultant psychologist (DOE Psychologist) who determined that the Individual met the criteria for BPD, which she stated is "a condition that impairs judgment, reliability, and trustworthiness." The Individual's psychiatrist (Psychiatrist) testified on her behalf, stating that he disagreed with the diagnosis. The Individual's testimony detailed her growth through group and individual therapy as well as the changes she had implemented in her life. Although the DOE Psychologist stood by her original diagnosis of BPD, the Administrative Judge found the testimony of the Psychiatrist and Individual to be compelling. Ultimately, she determined that the Individual had mitigated the Guideline I security concerns, and she concluded that the Individual's access authorization should be granted. (OHA Case No. PSH-24-0014, Quintana)

Access Authorization Restored; Guideline G (Alcohol Consumption) & Guideline J (Criminal Conduct)

On February 20, 2024, an Administrative Judge determined that an Individual's access authorization should be restored under 10 C.F.R. Part 710. In April 2023, the Individual was arrested and charged with Aggravated Driving While Intoxicated (DWI). The Individual had previously been charged with numerous criminal offenses, including DWI. Shortly after his April 2023 arrest, the Individual began attending classes related to addressing alcohol misuse as well as Alcoholics Anonymous (AA) meetings. In August 2023, a DOE-contracted psychologist (DOE Psychologist) conducted a psychological evaluation of the Individual and issued a report in which she opined that the Individual binge consumed alcohol to the point of impaired judgment. At the hearing, the Individual presented evidence that he had received treatment to address his alcohol misuse, the results of alcohol testing showing that he had abstained from alcohol for approximately nine months, and testimony from his AA sponsor and counselor to the effect that he had responded positively to the AA program and counseling and was committed to abstaining from alcohol use. The DOE Psychologist opined that the Individual had complied with her treatment recommendations and demonstrated rehabilitation. The Administrative Judge concluded that the Individual had resolved the security concerns asserted by the local security office under Guidelines G and J, and therefore determined that the Individual's access authorization should be restored. (OHA Case No. PSH-24-0019, Harmonick)

Access Authorization Denied; Guidelines G and I

On February 20, 2024, an Administrative Judge (AJ) determined that an Individual's access authorization under 10 C.F.R. Part 710 should not be restored.

The Individual reported that police had issued two summons for his arrest for failure to appear in court . The Individual had received a citation for having an abandoned motor vehicle in his driveway. He had not been aware that these citations had been issued to him, because they had been mailed to him and he had stopped getting his maim from his mailbox because he had developed a fear of going to his mailbox.

A DOE Psychiatrist examined the Individual and concluded that the Individual had an anxiety disorder which affected his judgement and reliability. The Psychiatrist further diagnosed the Individual with Alcohol Use Disorder (AUD) since the Individual had previously been treated for multi-substance abuse, and had begun using alcohol somewhat heavily again after 19 years of sobriety.

The Psychiatrist had set forth a number of treatment recommendations for both disorders in his report . However, the Individual did not follow any of those recommendations. Not had the Individual attempted to obtain any other form of treatment for his disorders. At the hearing the Individual essentially argued that he knew himself better than the psychiatrist and that he was convinced that he is ok.

The AJ found that the Individual had exhibited markedly poor judgment by failing to either obtain treatment for his AUD or a professional evaluation of his current alcohol use to ensure that it is safe and under control and by failing to obtain treatment for his fear of his mailbox.

The AJ therefore concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-24-0012, Fine)

Access Authorization Granted; Guideline G (Alcohol Consumption)

On February 20, 2024, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual is employed by a DOE Contractor in a position that requires him to hold a security clearance. The Local Security Office (LSO) received potentially derogatory information. The LSO alleged that following a psychological evaluation in July 2023, the Individual was diagnosed with Alcohol Use Disorder, Severe, without adequate evidence of rehabilitation or reformation. The LSO also noted that the Phosphatidylethanol (PEth) test the Individual took in conjunction with the psychological evaluation confirmed that he had been heavily consuming alcohol, and in August 2019, the Individual was arrested and charged with DUI. Although the Individual successfully completed the terms of his probation, he had not implemented any of the recommendations made by the DOE Psychologist and he continued to consume alcohol. The DOE Psychologist testified that the Individual had failed to shoe any evidence of rehabilitation or reformation. The Individual failed to mitigate the stated concerns. (OHA Case No. PSH-24-0010, Rahimzadeh)

Access Authorization Not Granted; Guideline E (Personal Conduct); Guideline I (Psychological Conditions)

On February 20, 2024, an Administrative Judge (AJ) determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The DOE Local Security Office (LSO) suspended the Individual's security clearance application after it discovered that he had been diagnosed with Bipolar Mood Disorder (Bipolar Disorder) and Attention-Deficit Hyperactivity Disorder, conditions that could impact judgment and reliability, and neither condition was rehabilitated or reformed. The LSO also obtained information that the Individual reported that when he does not take his medication he is disconnected and not engaged, he reported past marital problems associated with impulsive spending and infidelity that he attributed to his Bipolar Disorder, and he reported an inconsistent work history which included abrupt resignations, disciplinary actions, personality conflicts, and terminations.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guidelines E and I. The AJ also determined that the Individual put forth sufficient evidence to resolve the Guideline E security concerns but failed to put forth sufficient evidence to resolve the Guideline I security concerns. Accordingly, the AJ concluded that the Individual should not be granted access authorization. (OHA Case No. PSH-24-0028, Thompson III)