Summary of Decisions - July 19, 2021 - July 23, 2021

FOIA Appeal 

Freedom of Information Act (FOIA) Appeal; Granted in Part; Exemption 6

On July 20, 2021, the Office of Hearings and Appeals (OHA) remanded in part a FOIA appeal filed by Charles Robbins (Appellant) concerning a FOIA request he made to the Department of Energy's (DOE) Office of Inspector General (OIG). The OIG withheld the names of various individuals on its staff in the responsive records pursuant to FOIA Exemption 6. On appeal, the Appellant argued that OIG's Exemption 6 redactions were improper because disclosure was required under 5 C.F.R. § 293.311. The Appellant also asserted that some of the employees whose names OIG had redacted in the responsive documents were also disclosed in other parts of the same responsive documents. Further, the Appellant contended that since the OIG's public website includes the names and position titles of seven OIG management personnel, OIG waived its ability to invoke Exemption 6 for those OIG management personnel. OHA determined that the regulation which Appellant relied on does not preclude withholding under an otherwise available FOIA exemption. After review, OHA found that OIG personnel have an enhanced privacy interest in their identities and the Appellant had not identified any public interest in disclosing the employees' names that outweighed that privacy interest. Also, since OIG already revealed the names of the senior decision-makers in the responsive documents, any public interest in the names of comparatively lower-level OIG employees who had peripheral roles in the matter is diminished. Accordingly, OHA concluded that OIG properly invoked Exemption 6 as to the names of the lower-level OIG employees in the responsive documents. Additionally, OHA determined that to the extent that there are inconsistencies in some of OIG's redactions, inadvertent disclosures do not waive OIG's ability to invoke Exemption 6 as to the redacted names in the responsive documents. However, OHA was unable to determine whether OIG's redaction of one of its management SES level employees was proper because the OIG had not resolved an inconsistency in its rationale for withholding the name of that employee. Accordingly, OHA remanded the Appeal in part. OHA Case No. FIA-21-0012 .

Personnel Security Hearing 

Personnel Security; Access Authorization Not Granted; Guideline G (Alcohol Consumption)

On July 19, 2021, an Administrative Judge determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be granted.   A   DOE   Psychiatrist diagnosed the Individual with Alcohol Use Disorder (AUD), Mild, without   adequate evidence of rehabilitation and reformation. Based on the testimony of all witnesses and the evidence submitted, the Administrative Judge concluded that the Individual had not been sufficiently reformed or rehabilitated from his AUD, since he had not been successfully treated for AUD, had a previous history of unsuccessful treatment, was unable   to corroborate his claim that he had abstained from all alcohol used during the past seven months; and had not fully complied with the DOE Psychiatrist's treatment recommendations, since he had only attended eight counseling sessions and had not yet become fully engaged in Alcoholics Anonymous. Accordingly, the Administrative Judge concluded that the Individual had not provided adequate evidence of rehabilitation or reformation to mitigate and resolve the security concerns raised under Guideline G by his AUD diagnosis. The Administrative Judge therefore concluded that the Individual's access authorization should not be granted . OHA Case No. PSH-21-0058 (Steven L. Fine).

Personnel Security; Access Authorization Not Granted; Guideline E (Personal Conduct), Guideline F (Financial Considerations); Guideline J (Criminal Conduct).

On July 19, 2021, an Administrative Judge determined that the 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. The Local Security Office (LSO) received potentially derogatory information. Under Guideline E, the LSO alleged that the Individual omitted his marijuana use and several criminal charges and arrests from the Questionnaire for National Security Positions (QNSP). Under Guideline F, the LSO alleged that the Individual had several outstanding debts and that he failed to file federal and state income taxes for tax year 2017. Under Guideline J, the LSO alleged that between the years 1991 to 2017, the Individual was charged with and arrested for a number of criminal offenses.

At the hearing, the Individual denied purposely omitting any information related to his marijuana use and criminal record from the QNSP, stating that the omission was due to forgetfulness. However, he did not disclose the omitted facts prior to being confronted with them. In weighing the evidence, the Administrative Judge could not find that the Individual mitigated Guideline E concerns. Further, although the Individual had established payment plans for several of the outstanding debts enumerated in the Notification Letter, the record did not contain any information regarding the resolution of the rest of his outstanding obligations. Despite the Individual providing evidence of having successfully filed and satisfied his federal and state income tax obligations for tax year 2017, the Administrative Judge determined that the Individual could not mitigate all Guideline F concerns.

Despite evidence that the Individual had made significant evidence regarding positive changes in his life, the Administrative Judge could not find that the Individual had mitigated Guideline J concerns. In the context of the Individual's arrest history, his current four-year history without any arrest or charge could not be considered sufficient to totally assuage the security concern his extensive record raised. Considering the nature of some of the criminal offenses, the Administrative Judge could not find that the criminal behavior is unlikely to recur or took place under unusual circumstances. Based on the testimony of all witnesses and the evidence submitted, the Administrative Judge therefore concluded that the Individual's access authorization should not be granted. OHA Case No. PSH-21-0053 (Richard A. Cronin, Jr.).

Personnel Security; Access Authorization Restored; Guideline G (Alcohol Consumption)

On July 20, 2021, an Administrative Judge determined that an Individual's access authorization should be restored under 10 C.F.R. Part 710. The Individual was arrested and charged with Driving Under the Influence of Intoxicating Liquor or Drugs (DUI) in 2017 and Aggravated Driving While Under the Influence of Intoxicating Liquor or Drugs (Aggravated DWI) in 2018. Both charges were ultimately dismissed for failure to prosecute by the local prosecuting authority. The Individual represented in written submissions to the local security office (LSO) and in a clinical interview with a DOE-contracted psychologist (DOE Psychologist) that she was not intoxicated on either occasion in which she was arrested for alcohol-related offenses and that she consumed alcohol in moderation. However, a Phosphatidylethanol (PEth) test requested by the DOE Psychologist provided evidence that the Individual was consuming significantly more alcohol than she had admitted. The DOE Psychologist diagnosed the Individual with Alcohol Use Disorder (AUD), Mild, under the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition and opined that she habitually consumed alcohol to the point of impaired judgment. The DOE Psychologist recommended that the Individual abstain from alcohol for at least six months, demonstrate her abstinence from alcohol through alcohol testing, and either attend an intensive outpatient alcohol treatment program or participate in Alcoholics Anonymous. At the hearing, the Individual testified that she had abstained from alcohol for approximately eighteen months and provided PEth test results demonstrating that she had not consumed alcohol in the six months prior to the hearing. The Individual also established that she had attended alcohol-related classes offered by an occupational medicine counselor at the DOE site at which she was employed and testified that the classes provided her with a deeper understanding of alcohol misuse that would help her avoid returning to problematic alcohol consumption. The counselor who provided the classes testified that the Individual was an engaged participant in the classes and opined that the Individual had a positive prognosis for avoiding returning to problematic alcohol consumption. After observing the entire hearing, the DOE Psychologist opined that the Individual had satisfied his treatment recommendations, that her AUD was in full remission, and that she had a very good prognosis for avoiding a return to problematic alcohol consumption. Based on the Individual's demonstrated abstinence from alcohol in accordance with treatment recommendations and the positive prognoses offered by the Individual's counselor and the DOE Psychologist, the Administrative Judge concluded that the Individual had resolved the security concerns asserted by the LSO under Guideline G. Therefore, the Administrative Judge determined that the Individual's access authorization should be restored. OHA Case No. PSH-21-0055 (Phillip Harmonick).