Summary of Decisions - February 27, 2023 - March 03, 2023

FOIA Appeal (FIA)

On February 27, 2023, Ron Walli (Appellant) appealed a Determination Letter issued to him from the Department of Energy's (DOE) Oak Ridge Office (ORO) regarding Request No. ORO-2023- 00202-F. In that determination, ORO responded to a request filed under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, as implemented by the Department of Energy (DOE) in 10 C.F.R. Part 1004. NNSA stated that it did not find any responsive documents and that the responsive documents. The Individual appealed the adequacy of the search. The appeal was granted because DOE had not searched all locations likely to contain responsive records. (OHA Case No. FIA-23-0013)

Personnel Security Hearing (PSH)

Access Authorization Not Restored; Guideline G (Alcohol Consumption) and J ( Criminal Conduct)

On March 2, 2023, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual is employed as a DOE contractor in a position that requires him to hold a DOE security clearance. On January 18, 2022, the Individual reported to the Local Security Office (LSO) that he had been arrested on the previous day for Driving Under the Influence (DUI) (2nd Offense), among other charges. Exhibit (Ex.) 6.  Subsequently, the LSO sent the Individual a Letter of Interrogatory (LOI) asking the Individual to provide further details surrounding his arrest. In his response to the LOI, the Individual stated that he had consumed approximately four beers and a shot of liquor between 5:00 p.m. and 12:00 a.m. and had waited a sufficient length of time such that the alcohol in his system would be metabolized.  At the bar, where he consumed the described alcohol, he agreed to drive an alcohol impaired woman to her home a short distance away.  He was then pulled over by local police and was scared because he believed that he was the subject of harassment. The Individual asserted that he did "pretty good" on a field sobriety test administered by the police officer. He was then asked to take a breathalyzer test to which he refused and was subsequently arrested.

As a result of the information contain in the Individual's response to the LOI, the Individual was instructed to undergo a psychological evaluation conducted by a DOE consultant Psychologist (DOE Psychologist) in May 2022. Ex. 8.  In his May 19, 2022, report (Report), the DOE Psychologist found that the Individual would regularly consume five alcoholic drinks at a time and opined that the Individual met the criteria for a diagnosis of Alcohol Use Disorder.

Due to unresolved security concerns regarding the Individual's alcohol consumption and a prior history of criminal arrests, the LSO began the present administrative review proceeding by issuing the Individual a letter (Notification Letter). In a Summary of Security Concerns (SSC) attached to the letter, the LSO explained that the derogatory information raised security concerns under Guidelines G (Alcohol Consumption) and J (Criminal Conduct) of the Adjudicative Guidelines

After considering the record in this case, administrative Judge found that the Individual did not mitigate the Guideline G concerns listed in the SSC. None of the Guideline G mitigating factors were found to apply in the Individual's case. Among other reasons cited by the Administrative Judge for his finding was that the Individual's current limited consumption of alcohol is relatively short in duration at approximately 6 months and is not in accordance with the treatment advice from the DOE Psychologist that he abstain from alcohol. Further the Individual had not participated in substance abuse treatment with a provider specifically trained in substance abuse treatment. Nor did the Individual meaningfully engage in a recommended group therapy program such as AA. The Administrative Judge found it significant that, as the DOE Psychologist testified, the Individual has not fully acknowledged the fact that he suffers from an alcohol use disorder.

Regarding the concerns listed under Guideline J, the Administrative Judge found that none applied to the Individual. The Administrative Judge noted that several the Individual past criminal charges were over 10 to 20 years ago and that alone such a time span might justify mitigation. However, the Individual's two most recent offenses involve DUI charges. Given his finding above under Guideline G, the Administrative Judge could not discount the potential recurrence of future criminal alcohol -related conduct. In sum, the Administrative Judge could not find that the Guideline J security concerns have been resolved. Given his findings under Guidelines G and J, the Administrative Judge could not find that restoring the Individual's security clearance would not endanger the common defense and would be clearly consistent with the national interest. Therefore, the Administrative Judge could not restore the Individual's security clearance. (OHA Case No. PSH-23-0002, Cronin)

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

On February 27, 2023, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. While on work-related travel, the Individual left the work site for a lunch break and did not return. Efforts to contact the Individual were unsuccessful . Approximately four hours later, the Individual contacted a coworker to retrieve belongings he had left behind and noted that the coworker should not be alarmed when he observed blood on the Individual . The Individual told the coworker and other colleagues that he had been assaulted. However, the Individual provided conflicting accounts of his whereabouts and the circumstances of his assault, and refused medical attention or to provide information to law enforcement. The Individual was subsequently evaluated by a DOE-contracted Psychologist (DOE Psychologist) who opined that, although the Individual did not meet the diagnostic criteria for any psychological condition, the Individual had personality traits that predisposed him to embellish facts to present himself in a positive light. At the hearing, the Individual admitted that he had provided false information concerning the incident, but continued to provide a dubious explanation for his actions following the alleged assault and did not fully resolve inconsistencies in the information that he provided to witnesses. The Administrative Judge concluded that the allegations under Guideline I should have been brought exclusively under Guideline E, and that the Individual had not resolved the security concerns raised by his erratic behavior and untruthfulness under Guideline E. Therefore, the Administrative Judge determined that the Individual's access authorization should not be restored. (OHA Case No. PSH- 23-0036, Harmonick)