Summary of Decisions - June 16, 2014 – June 20, 2014

Personnel Security (10 CFR Part 710)

On June 17, 2014, an OHA Administrative Judge issued a decision finding that the individual should be granted a security clearance after she determined that the individual had mitigated the security concerns associated with her close and continuing contact with family members in a foreign country and her continuing connections to other persons and entities in that foreign country.  The Administrative Judge found that the individual is a loyal U.S. citizen with an overwhelming preference to be in this country. She held that the individual’s political, professional and social interests are aligned with this country only, and that she is committed to American values and traditions. The Administrative Judge also determined that the individual is a dedicated, loyal employee with a strong sense of right and wrong. Considering the “total person” concept, the Administrative Judge held that individual’s “heart and mind” are allied with the U.S. and that if she is ever faced with the choice of deciding between the interests of the U.S. and that of her foreign national friends, family members or the foreign country, the evidence supports a finding that she will choose the U.S. interests. Accordingly, the Administrative Judge concluded that the Individual had resolved all the security concerns at issue.  OHA Case No. PSH-14-0010 (Ann S. Augustyn)

On June 19, 2014, an OHA Administrative Judge issued a decision finding that the DOE should restore the individual’s security clearance after she determined that the individual had mitigated the security concerns associated with his wife’s close and continuing contact with family members in a foreign country, his connections to foreign nationals, and some allegiance issues relating to him.   The Administrative Judge found that the individual’s relationship with his family is currently strained, with only minimal contact among them, and that it is therefore unlikely that he will be susceptible to exploitation, inducement, manipulation, pressure or coercion by them.  The Administrative Judge also determined, based on her evaluation of the individual and his witnesses’ demeanor and credibility, that the individual’s devotion to his children, his work, and the U.S. are so strong that he will resolve any conflict that might arise in favor of the U.S.  She also noted that the evidence is replete with references to the individual’s loyalty to the U.S. government, and his strong sense of ethics and duty. In the end, she concluded that individual’s “heart and mind” are allied with the U.S. and that if he is ever faced with the choice of deciding between the interests of the U.S. and that of his foreign national family or his place of birth, he will choose the U.S. interests. Accordingly, the Administrative Judge concluded that the individual had resolved all the security concerns at issue.  OHA Case No. PSH-14-0011 (Ann S. Augustyn)

On June 18, 2014, an OHA Administrative Judge issued a decision in which he determined that an individual’s DOE access authorization should be granted. The individual has a history of five arrests for Driving Under the Influence of Alcohol (DUI).  A DOE psychologist also diagnosed the individual with alcohol abuse.  At the hearing, the individual acknowledged that he suffers from alcohol abuse.  However, he successfully showed that he is reformed and rehabilitated from his alcohol use disorder by showing that he had taken several remedial actions including attendance at Alcoholics Anonymous (AA) meetings, obtaining an AA sponsor, working AA’s Twelve-Step Program, and attending individual counseling.  At the time of the hearing, the individual had established an eight-month period of abstaining from alcohol use, and the DOE psychologist opined that there was no longer a significant risk that the individual would relapse into problematic alcohol use.  Accordingly, the Administrative Judge found that the individual had mitigated the security concerns raised by his DUI arrests and alcohol abuse.  OHA Case No. PSH-14-0031 (Steven L. Fine)

On June 20, 2014, an OHA Administrative Judge (AJ) issued a decision in which she concluded that an individual should not be granted DOE access authorization.  A DOE Operations Office referred the individual, an applicant for access authorization, to administrative review after it determined that certain information pertaining to the individual’s various delinquent debts and purported pattern of financial irresponsibility raised security concerns.  After conducting a hearing, which was convened at the individual’s request, and evaluating all relevant evidence, the AJ concluded that the individual had not presented sufficient evidence to fully resolve the cited security concerns.  The AJ based her finding on the individual’s ongoing delinquent debts and her continued inability to satisfy her financial obligations.  In this regard, the AJ concluded that the individual remained in a very precarious, highly unstable financial position as of the date of the hearing, and she presented little evidence which indicated that her situation will abate in the future.  Consequently, the AJ was unable to conclude that the individual’s financial difficulties were in the past and unlikely to recur such that they did not cast doubt on her current reliability, trustworthiness or good judgment.  OHA Case No. PSH-14-0028 (Diane DeMoura)

Freedom of Information Act (FOIA) Appeals

On June 16, 2014, OHA denied a FOIA Appeal filed by Torres Consulting & Law Group, LLC, (Appellant) of a determination issued by the DOE Oak Ridge Office (Oak Ridge).  In its Appeal, the Appellant challenged Oak Ridge’s finding that the requested documents were not agency records.  OHA found that despite the Appellant’s claims to the contrary, the records were not in the possession and control of Oak Ridge at the time of the request.  The Appellant argued that under the Davis-Bacon Act, Oak Ridge was required to keep copies of the records.  OHA disagreed.  Further, the Appellant argued that DOE’s contract with Battelle Memorial Institute described the records as agency records.  OHA also disagreed with the Appellant’s reading of the underlying regulations.  Therefore, OHA denied the Appeal.  OHA Case No. FIA-14-0032

On June 12, 2014, OHA issued a decision denying an (Appeal) from a FOIA determination issued by the Office of Legacy Management (LM).  The Appellant, Rachel Cook, requested all records regarding a deceased relative.  LM explained that it conducted a search through its Electronic Recordkeeping System (ERKS), and used the relative’s name and social security number as search terms.  However, LM could not locate any documents.  Accordingly, OHA concluded that LM conducted a reasonable search for documents and denied the appeal.  OHA Case No. FIA-14-0031