Summary of Decisions - July 24, 2023 - July 28, 2023

FOIA Appeal (FIA)

FOIA; Appeal Denied

On July 25, 2023, the Office of Hearings and Appeals (OHA) denied the Freedom of Information (FOIA) appeal filed by Susan Maret from a final determination letter (Determination Letter) issued by the Department of Energy's Office of Public Information (OPI). On May 16, 2023, OPI sent the Appellant a final Determination Letter informing the Appellant of the searches conducted and the results they yielded. In a timely filed appeal, the Appellant argued that OPI should have conducted a proper search.

Regarding the searches that were conducted, OHA learned that searches had been conducted in the network where classified information is customarily maintained, as well as the dissemination platform that allows other members of the intelligence community to access DOE -IN products. DOE also learned that no searched were conducted for physical files, as all intelligence information pertaining to COVID-19 was maintained electronically.

Because OHA determined that an adequate search for responsive documents was conducted, OHA denied the appeal. (OHA Case No. FIA-23-0023)

Freedom of Information Act (FOIA) Appeal Granted in Part; Exemption 4; Exemption 6; Adequacy of Search

On July 25, 2023, the Office of Hearings and Appeals (OHA) granted in part a FOIA appeal filed by Citizens United for Resources and the Environment (Appellant) from a determination letter issued by the Department of Energy's (DOE) Golden Field Office (GFO). Appellant's FOIA request sought 18 categories of records related to two contracts ("LADWP Contract" and "Riverside Contract") which involved a Management & Operating (M&O) contractor (contractor) for the DOE. GFO provided Appellant with responsive documents, but withheld portions of some of the documents pursuant to Exemption 4 and Exemption 6.  On Appeal, the Appellant argued that GFO's redactions under Exemption 4 and Exemption 6 were improper. The Appellant also alleged that GFO's responses to some of Appellant's specific requests were inadequate based on Appellant's disagreements regarding the contents of the responsive documents or the rationale provided in GFO's responses.

Regarding Exemption 4, OHA found that GFO properly applied Exemption 4 to redacted information in the contractor's Organizational Conflicts of Interest Plan and Program and in its cost development sheets and cost development information. However, GFO had failed to show that the contractor's passcodes are commercial or financial information. Accordingly, OHA remanded this portion of the Appeal for further processing by GFO to determine whether the passcodes are commercial or financial information and depending on its findings, to determine whether a different exception applies or to conduct further processing of the Appellant's FOIA request for this type of requested documents.

Regarding Exemption 6, the Appellant asserted that it was not appropriate to redact the names of Individuals involved in the LADWP contract because this information was not intended to harass or embarrass anyone. Case precedent has established there is minimal public interest in learning the names of lower-level employees. However, GFO stated that it redacted all non -government names and contact information under Exemption 6, and gave no indication that it attempted to distinguish between different types of contract employees. Accordingly, OHA remanded this issue for GFO to consider whether each name redacted was appropriate under Exemption 6.

The Appellant also asserted that some of GFO's responses were inadequate because they did not contain any emails, however, OHA found that the responsive documents contained several emails . Moreover, OHA found that Appellant's requests that GFO produce lists of statutes and regulations were properly denied because those were requests for the DOE to conduct legal research . Additionally, OHA found that GFO properly applied the contract provisions of the M&O contract to withhold certain contract documents, because those documents are contractor -owned records not subject to FOIA. Therefore, OHA denied all other parts of the appeal. (OHA Case No. FIA-23-0016)

Personnel Security Hearing (PSH)

Access Authorization not restored; Guidelines G (Alcohol Consumption); I (Psychological Conditions)

On July 27, 2023, 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 security clearance. In April 2022, as part of the security clearance application process, the Individual completed a Questionnaire for National Security Positions (QNSP). In the QNSP, the Individual reported prior DWI charges in 2006 and 2009. Subsequently, the Individual underwent an evaluation with a DOE consultant psychologist (DOE Psychologist). Based on the evaluation, the DOE Psychologist diagnosed the Individual with Alcohol Use Disorder (AUD), Severe, Posttraumatic Stress Disorder (PTSD), and Major Depressive Disorder (MDD), Recurrent, in remission. The DOE Psychologist recommended a list of steps the Individual should take in order to demonstrate rehabilitation and reformation from the AUD and to address PTSD and MDD. The recommendations including abstinence from alcohol, attendance at an IOP and AA, alcohol testing, participation in psychotherapy, and obtaining a consultation with a psychiatrist regarding antidepressants and other medications. At the hearing, the Individual testified that he was still consuming alcohol and had not yet undertaken any of the DOE Psychologist's recommendations. As such, the Administrative Judge determined that the Individual had not resolved the security concerns associated with Guideline G and Guideline I. Accordingly, she concluded that the Individual should not be granted access authorization. (OHA Case No. PSH-23-0065, Balzon)

Access Authorization Not Restored; Guidelines G (Alcohol Consumption), I ( Psychological Conditions), and J (Criminal Conduct)

On July 28, 2023, an Administrative Jude 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 indicating that in June 2022, after consuming approximately five alcoholic beverages, the Individual was arrested and charged with Felony Aggravated Battery Against a Household Member and a petition for an Order of Protection from Domestic Violence Abuse (Order of Protection) was filed against him. The LSO also alleged that the DOE Psychologist determined that the Individual frequently drinks excessively and beyond the level of consumption found to impair judgment. Finally, the LSO stated that the DOE Psychologist also determined that the Individual's lack of candor is a feature of several mental conditions that impairs his judgment, reliability, and trustworthiness.

The Individual and DOE Psychologist testified at the hearing. The evidence in the record indicated that the Individual had not abstained from alcohol, that he had not sought treatment for his consumption, that the criminal and civil matters had been dismissed, and that he had reconciled with the romantic partner that had filed the petition for a protective order against him. The Individual's account of what took place on the day of the incident in June 2022 varied from the account provided in the police incident report and the complaint for the Order of Protection. The DOE Psychologist testified that he had concerns regarding the Individual's lack of candor because the phosphatidylethanol test results varied so greatly from the Individual's self-reports of drinking. As the Individual did not provide evidence that his problematic alcohol consumption had discontinued, that he was receiving treatment, or that he had shown adequate evidence of rehabilitation or reformation, the Administrative Judge could not conclude that he had mitigated the Guideline G concerns. As the Guideline J concerns were related to his alcohol consumption, the Administrative Judge could not conclude that he had mitigated those concerns, either. Further, as there was no sufficient cause to question the DOE Psychologist's assessment regarding the Individual's lack of candor, the Individual failed to mitigate the Guideline I concern. (OHA Case No. PSH-23-0078, Rahimzadeh)

Access Authorization Denied; Guidelines G (Alcohol Consumption), H (Drug Involvement and Substance Misuse), and I (Psychological Conditions)

On July 24, 2023, an Administrative Judge determined that an Individual should not be granted an access authorization under 10 C.F.R. Part 710. The Individual completed an "Questionnaire for National Security Positions" (QNSP) form. In the QNSP, the Individual admitted having used marijuana during the prior seven years and to having been charged in July 1984 with Driving While Impaired (DWI). Subsequently, the Local Security Office (LSO) sent the Individual a Letter of Interrogatory (LOI) asking him, among other things, about his alcohol and drug consumption. In his response to the LOI, the Individual admitted to past cocaine, psilocybin, and peyote use in the 1970s and ending in 1980. The Individual also admitted having used marijuana intermittently, beginning in the 1970s, and escalating his use to a regular basis in 2017 until he stopped his use in April 2021.

The Individual was later referred for an examination to a DOE -contractor psychologist (DOE Psychologist).The DOE Psychologist found that indicated that the Individual habitually or binge consume alcohol to the point of impaired judgment. The DOE Psychologist's Report also found that the Individual had an emotional, mental, or personality condition or conditions that can impair judgment, stability, reliability, or trustworthiness.

The Individual presented testimony from his counsellor, his wife. The CEO of his company as well as his own testimony along with Peth tests that indicated that he had been abstinent for 2 months from alcohol and a report from his counselor indicating had underwent eight sessions with his counselor . After reviewing the testimony including the DOE Psychologist who found that the Individual's period of abstinence was too brief to conclude that the Individual had been rehabilitated from his prior alcohol misuse, the Administrative Judge found that the Individual had not resolved the Guideline G security concerns raised by his alcohol use.

With regard to the Guideline H security concerns arising from his prior illegal drug use, the Administrative Judge found that the passage of time had mitigated the Individual use of cocaine, psilocybin, and peyote. However, given the relative recency of Individual marijuana use and the lack of evidence in the record which would mitigate such use, the Administrative Judge found that the Guideline H security concerns raised by the Individual's prior marijuana use had not been resolved.

The Administrative Judge found that the Individual had mitigated the concerns under Guideline I . Specifically the Administrative Judge found that the DOE Psychologist had misinterpreted a significant fact used in his diagnosis of the Individual as having a mental condition. Consequently, after reviewing all the evidence the Administrative Judge found that the Guideline I concern raised by the DOE Psychologist's diagnosis of the Individual as having a mental condition had been resolved.

The Administrative Judge found that the Individual had not, at this time, offered sufficient evidence to conclude that the Guideline G and H security concerns had been resolved. Consequently, the Administrative Judge found that that the Individual's clearance should not be granted. (OHA Case No . PSH-23-0075, Cronin)

Access Authorization Not Restored; Guidelines E (Personal Conduct), F (Financial Considerations), and J (Criminal Conduct)

On July 25, 2023, an Administrative Jude 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 her to hold a security clearance. the Local Security Office (LSO) received potentially derogatory information indicating that the DOE's Office of the Inspector General (OIG) determined that the Individual fraudulently received a total of $ 48,787.96 from a DOE contractor by submitting false information.

The Individual provided evidence which indicated that she had occasionally listed her residential address on various forms and documents in a manner inconsistent with what she had listed in her 2018 Questionnaire for National Security Positions (QNSP). It was, however, clear that the Individual had left her former marital home in 2014, which was the address that had been used to claim the funds in 2105 and 2016. The Individual indicated that she had provided her employer with her mother's address, as she considered that address her permanent residential address. The record also indicated that although the Individual was no longer responsible for the maintenance of and upkeep of the former marital home, she did not agree with OIG's conclusion that she had used the address to fraudulently claim funds because her former spouse had not immediately assumed responsibility for the former marital home pursuant to their settlement agreement.

The record also indicated that the Individual had received relocation expenses by listing a former residence in a different state as her residential address. The Individual then proceeded to provide the moving company with a different address. Regarding this matter, she testified that she could not recall which address she had listed on her relocation paperwork, and she denied knowing the address of the storage facility.

The Individual failed to take any responsibility for her actions and did not provide any information that could meaningfully refute the conclusions reached by the OIG as stated in the report. Accordingly, the Administrative Judge determined that the Individual had failed to mitigate the stated Guideline E, F, and J concerns. (OHA Case No. PSH-23-0060, Rahimzadeh)