Summary of Decisions - July 25, 2022 - August 05, 2022

FOIA Appeal (FIA)

FOIA; Appeal Denied

On July 25, 2022, the Office of Hearings and Appeals (OHA) denied the Freedom of Information ( FOIA) Appeal filed by Rowland Hume (Appellant) from a final determination letter (Determination Letter) issued by the Department of Energy's (DOE) National Nuclear Security Administration ( NNSA). On Appeal, the Appellant argued that the agency failed to conduct an adequate search.

On July 8, 2022, NNSA send 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 argues that NNSA told him it would conduct a proper search. The Appellant goes on to state that in the Determination Letter, the NNSA stated that they did not have records relating to the NEST deployment in 1997, as the database was not created until 2003. The Appellant took issue with this assertion, as he believes it directly contradicted a prior statement from the NNSA analyst, which indicated that the NNSA did have such records in its possession. The Individual also asked that a new search be conducted. OHA construed this argument to be a challenge to the adequacy of the search that was conducted for the requested NEST records.

After examining the email exchange that resulted in the alleged contradictory statement, OHA did not agree with the characterization of the exchange, finding that the FOIA analyst did not provide an unequivocal statement that the NNSA possessed the requested records. She also did not guarantee that the databases at the disposal of the site offices possessed the requested records. Rather, she merely provided a generic statement indicating that if there are any responsive documents, the site offices that were operating in 1997, and now under NNSA jurisdiction, may still have documents predating the establishment of the NNSA in their possession.

OHA reached out to NA-80. OHA discovered that NA-80 had asked NA-84 to conduct the search for responsive documents, and NA-84 was directed to search the Asset Readiness Management System (ARMS) database for responsive records. NA-80 also directed the search of the NEST compendium, which is an "unofficial NEST history project."

OHA's review of the search shows NNSA conducted a search reasonably calculated to uncover all relevant documents. The facts indicate that NNSA made a good faith effort, using a thorough list of search terms and searching all offices where records could reasonably be expected to be found . Accordingly, OHA found that NNSA's search was reasonable and used appropriate methods. ( OHA Case No. FIA-22-0022)

FOIA; Appeal Denied

On July 15, 2022, the Office of Hearings and Appeals (OHA) denied the Freedom of Information ( FOIA) Appeal filed by Inteum Company (Appellant) from a final determination letter (Determination Letter) issued by the Department of Energy's (DOE) Office of Public Information (OPI). On Appeal, the Appellant argued that the agency improperly made redactions pursuant to FOIA Exemption 3.

The Appellant argued that the Exemption 3 redactions were inappropriate because the 41 U.S.C. § 2102 only prohibits the release of contractor information before the award of a contract. However, the Determination Letter cites 41 U.S.C. § 4702 as the statute justifying the Exemption 3 redactions. 41 U.S.C. § 4702 prohibits agencies from releasing any proposal submitted by a contractor that has not been incorporated into a contract between the agency and the contractor. The redactions here were made to prevent the release of documents submitted to DOE by contractors who made ultimately unsuccessful bids. Therefore, the redactions were appropriate, and the appeal is denied. ( OHA Case No. FIA-22-0023)

Personnel Security Hearing (PSH)

Access Authorization Not Restored; Guidelines G (Alcohol Consumption) and J ( Criminal Activity)

On July 28, 2022, an Administrative Judge (AJ) determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be restored.  The Individual had a history of two recent Driving While Intoxicated (DWI) arrests.  A DOE Psychologist subsequently found that the Individual meet the criteria for Alcohol Use Disorder (AUD) set forth in the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition (DSM-5) and had not been reformed or rehabilitated.

At the Hearing, the Individual did not dispute that he had been properly diagnosed with and AUD, and instead contended, that he had sufficiently mitigated the security concerns raised by both diagnoses . However, the AJ found that the Individual had not submitted sufficient evidence to mitigate the security concerns raised by his AUD.

The AJ found that Individual's testimony demonstrated a high level of insight, introspection, and intelligence, noting that the Individual clearly understood the significance of his AUD diagnosis and had made a strong commitment to his sobriety. However, as discussed below, the AJ found that contradictions between the Individual's treatment programs (TP) records and the Individual's hearing testimony raised concerns regarding the Individual's credibility.

The TP records indicated that the Individual consumed alcohol in early April 2022, while the Individual testified that his last alcohol use occurred on January 16, 2022.  Therefore, if the Individual's last use of alcohol occurred in early April, he would have only been abstaining from alcohol use for three months at the time of the hearing, which would be insufficient to establish a pattern of abstinence. More importantly, the AJ found, it would mean that the Individual provided false testimony under oath, and that he provided false information to his father, his counselor, and his Sponsor as well.  When confronted with the information from the TP records indicating that the Individual used alcohol in early April 2022, the Individual testified that that information was false, and was only placed in the TP record in order to ensure that his treatment would be covered by his insurance. The AJ found that the Individual submitted no evidence corroborating this assertion . Moreover, while the Individual repeatedly testified that he intends to permanently abstain from alcohol use, his Counselor reported only that the Individual intended to abstain from alcohol use only "until he feels like his feet are more firmly on the ground with being in social situations." Finally, during his hearing testimony, the Individual testified that he had not had much trauma in his life, while his records from the TP quite clearly indicated the contrary.

The AJ found that while it was possible that these contradictions had explanations, such explanations were either not provided during this proceeding, or if they were, were not sufficiently corroborated to resolve the concerns that they raise. Because the Individual had not submitted sufficient laboratory records to show that he has abstained from alcohol use since January of 2022, the AJ concluded that he would have had to rely upon the Individual's testimony to conclude that the Individual had abstained from alcohol use since January 16, 2022. The AJ found that contradictions discussed above meant that that the Individual's testimony, alone, could not be relied upon to resolve the security concerns raised from his two DUI arrests and his AUD, Mild, diagnosis.

The AJ found that Individual's criminal activity concerns were inextricably linked to his AUD noting that both of his arrests occurred after incidents in which the Individual was intoxicated and were clearly symptomatic of his AUD.  Accordingly, the since AJ found that the Individual had not convincingly shown that he is rehabilitated or reformed from his AUD, the Individual had not yet shown that the root cause of his criminal activity has been successfully addressed.

Accordingly, the Administrative Judge therefore concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-22-0076, Fine)

Access Authorization Restored; Guideline G (Alcohol Consumption)

On August 2, 2022, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should be restored. The Individual is employed as a DOE contractor in a position that requires him to hold a DOE security clearance. The Individual notified the local security office (LSO) of his arrest for on July 5, 2021, for Driving Under the Influence (DUI). Because the Individual had a prior arrest for DUI in 2011, the LSO referred the Individual to be examined by a DOE consultant psychologist (Psychologist). After examining the Individual, the Psychologist diagnosed the Individual with Alcohol Use Disorder, Moderate, and indicated that he was in early remission. She found that the Individual did not have a favorable prognosis at that time, and she recommended that the Individual remain abstinent for a period of twelve months, and that breathalyzer tests given to the Individual by his employer "should be 'supported' by at least two PEth tests" over a twelve-month period. The DOE Psychologist also recommended that the Individual attend weekly AA (or a similar program) meetings.

The Individual and his spouse provided testimony at the hearing as to the Individual's current 12 months abstinence from alcohol along with test results to confirm his testimony. The Individual resumed attending AA meetings again after he received the DOE Psychologist's report. At the time of the hearing, the Individual had attended approximately 27 AA meetings since March 2022.  At the time of the hearing, the Individual had received AA chips marking 90 days of sobriety, two months of sobriety, and one year of sobriety. The Individual also testified as to his family support group and that in the future he would consider resuming limited consumption of alcohol.

After listening to all the testimony presented at the hearing, the DOE Psychologist testified that she determined that the Individual met the diagnostic criteria for AUD, Moderate, and further, that at the time she evaluated him, he was in early remission. The DOE Psychologist, in her testimony, noted stated that although AA recommends abstinence, she also referenced in her report other support groups that would be equivalent to AA that do not mandate total abstinence. Based on the information presented to her, the DOE Psychologist indicated that she believes the Individual has "created his own program for setting that goal of?very occasional controlled drinking." At the hearing, the DOE Psychologist determined that the Individual had shown adequate evidence of rehabilitation and reformation, and that the Individual's prognosis is good and his chance of relapse is minimal.

Based on the testimony of all witnesses and the evidence submitted, the Administrative Judge concluded found the Guidelines G security concerns had been resolved and that the Individual's access authorization should be restored. (OHA Case No. PSH-22-0074, Cronin)

Access Authorization Not Granted; Guideline G (Alcohol Consumption)

On August 5, 2022, 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) discovered derogatory information regarding the Individual's alcohol use, which prompted the LSO to request that the Individual be evaluated by a DOE-consultant psychiatrist ("Psychiatrist"). Subsequently, the LSO informed the Individual that it possessed reliable information that created substantial doubt regarding his eligibility to possess a security clearance because the derogatory information raised security concerns under Guideline G of the Adjudicative Guidelines.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline G by citing the Psychiatrist's opinion that the Individual had habitually consumed alcohol to the point of impaired judgment and met the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition ( DSM-5), criteria for Alcohol Use Disorder (AUD), Severe, without adequate evidence of rehabilitation or reformation.

The AJ also concluded that the Individual did not put forth sufficient evidence to resolve the Guideline G security concerns for the following reasons. The DOE Psychiatrist credibly established that the Individual had been diagnosed with depression and AUD in 2017, and it had not been in remission until the Individual reportedly became completely abstinent in 2021 because the Individual had continued to consume alcohol despite knowing that his depression and physical health had been seriously impacted by his alcohol use. The DOE Psychiatrist had recommended several actions the Individual could take to address his AUD. However, by the date of the hearing, the Individual had not followed those recommendations. He had not participated in a counseling or treatment program other than attending AA once week, and he had previously failed to complete an abstinent -based treatment program ("Outpatient Treatment") in 2017. The Individual had also never successfully completed a treatment program or attended aftercare. Furthermore, the Individual did not accept that he had a problem with alcohol. He continued to consume alcohol against the advice of the Outpatient Treatment providers until 2021; he did not attend the recommended number of AA meetings or obtain an AA sponsor; and he intentionally appeared late to the one weekly AA session he did attend to avoid fully participating. Lastly, the Individual was incapable of obtaining random EtG testing or PEth testing recommended by the DOE Psychiatrist ahead of the hearing despite having the Psychiatrist recommendation and an evaluation from his own psychologist and prior experience with EAP and Outpatient Treatment. Finally, the AJ cited that the DOE Psychiatrist concluded at the hearing that the Individual was at the point of sustained remission, but with a low to moderate chance of relapse.

Accordingly, the AJ concluded that the Individual had not resolved the Guideline G security concerns . OHA Case No. PSH-22-0073 (James P. Thompson III)