Summary of Decisions - June 26, 2023 - June 30, 2023

FOIA Appeal (FIA)

FOIA; Appeal Denied

On June 26, 2023, the Office of Hearings and Appeals (OHA) denied the Freedom of Information ( FOIA) Appeal filed by Aerotest Operations, Inc. (Appellant) from a determination letter issued by the Department of Energy's (DOE) Office of Public Information (OPI). On Appeal, the Appellant argued that the released records were improperly redacted information pursuant to Exemption 4. After reviewing the redacted records, we found that all of the redacted information was commercial and /or financial information related to pricing and contract terms and that the contractor kept this information closely held. Therefore, OIG's redaction of information pursuant to FOIA Exemption 4 was appropriate. (OHA Case No. FIA-23-0020)

Personnel Security Hearing (PSH)

Access Authorization not Restored; Guideline G (Alcohol Consumption)

On June 28, 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 by a contractor at a DOE facility and possessed a security clearance. On June 15, 2022, after reporting to work, his supervisor smelled the presence of alcohol on the Individual's breath. The supervisor then escorted the Individual to the facility's employee health department where they conducted a breath alcohol test (BAT) that indicated that the Individual tested positive at 0.03 percent.

The Individual was examined by a DOE contractor psychologist (DOE Psychologist) and was diagnosed as suffering from Alcohol Use Disorder. The DOE Psychologist concluded that the Individual had not demonstrated rehabilitation or reformation from his alcohol misuse problem. To demonstrate rehabilitation or reformation, the DOE Psychologist recommended that the Individual commit to and complete an intensive outpatient program (IOP) of at least eight weeks' duration and that on his successful completion of the IOP, the Individual should continue involvement in an aftercare program for 12 months (including random alcohol urine or breath testing) along with twice weekly attendance in a support group such as Alcoholics Anonymous (AA) with the help of a mature sponsor.

After receiving the Report, the Individual enrolled in and completed an IOP and, after completing that program on January 4, 2023, began to attend the IOP's aftercare program. The Individual also saw an IOP counselor for individual counselling. He generally attended the aftercare program once or twice a week. Additionally, the Individual underwent PEth testing monthly along with random breath alcohol tests at work. The Individual went to a number of AA meetings but subsequently quit attending AA.

The DOE Psychologist testified that Despite the Individual's submitted PEth tests for January, February and March 2023, the Individual did not have tests for November and December 2022. When asked about whether the Individual had shown adequate evidence of rehabilitation or reformation, the DOE Psychologist opined that the Individual had not met his criteria for rehabilitation. The DOE Psychologist testified that the Individual only had sufficient testing (PEth tests) to confirm his abstinence for 4 months as opposed to the ideal goal of 12 months of abstinence and that the Individual was in an early stage of his rehabilitation. Given the information before him, the DOE Psychologist opined that the Individual's current prognosis was "guarded."

In light of the DOE Psychologist testimony and the other evidence presented at the hearing, the Administrative Judge found that the Individual has not, at this time, offered sufficient evidence from which I can conclude that the Guideline G security concerns had been resolved. Consequently, the Administrative Judge found that that the Individual's clearance should not be restored. (OHA Case No . PSH-23-0047, Cronin)

Access Authorization Not Granted; Guideline G (Alcohol Consumption), Guideline I (Psychological Condition)

On June 28, 2023, an Administrative Judge found that an Individual's security clearance should be not granted. The Individual had been diagnosed with Alcohol Use Disorder, which raised concerns under Guidelines G and I. The Individual presented evidence that he had been abstaining from alcohol for almost two months and testified that he had not followed any of the recommendations made by the DOE Contractor Psychologist who evaluated him. The Psychologist testified that the Individual was not rehabilitated from his alcohol use disorder and had not demonstrated a pattern of abstinence or modified consumption. The Administrative Judge found that the security concerns about the Individual's alcohol consumption were not resolved and, therefore the Individual's security clearance should not be granted.  (OHA Case No. PSH-23-0070, Martin)

Access Authorization Not Restored; Guideline F (Financial Considerations)

On June 28, 2023, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual completed a Questionnaire for National Security Positions in 2022 in which he disclosed that he had not filed federal or state personal income tax returns for the 2020 or 2021 tax years. During an interview with an investigator as part of background investigation into his eligibility for access authorization, the Individual represented that he would file the tax returns by October 2022. In response to a November 2022 letter of interrogatory from the local security office (LSO), the Individual admitted that he had not yet filed the tax returns but represented that he would do so within the next several months. At the hearing, the Individual presented evidence that he had filed some of the tax returns in April 2023. Based on the security concerns presented by the Individual's unwarranted delay in filing the tax returns, and the lack of the evidence that he had filed all the tax returns he was required to file, the Administrative Judge concluded that the Individual had not resolved the security concerns asserted by the LSO under Guideline F. Therefore, the Administrative Judge determined that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0071, Harmonick)

Access Authorization Not Restored; Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), Guideline H (Drug Involvement and Substance Misuse), & Guideline J (Criminal Conduct)

On June 30, 2023, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. In 2018, while possessing access authorization, the Individual was arrested and charged with Driving Under the Influence of Alcohol (DUI) and marijuana possession. The Individual did not disclose this arrest to the local security office (LSO) as required. A court ordered the Individual to undergo an alcohol evaluation via which he was diagnosed with Alcohol Use Disorder (AUD). In 2021, the Individual completed a Questionnaire for National Security Positions (QNSP) in connection with a periodic review of his eligibility for access authorization in which he disclosed his arrest for DUI but did not disclose that he had also been charged with marijuana possession. The LSO learned of the Individual's marijuana-related arrest and questioned him via a letter of interrogatory (LOI) about why he had not disclosed it on the QNSP. In his response, the Individual admitted that he had intentionally failed to disclose this information because he feared that it would negatively affect his career and committed to appropriately disclose derogatory information going forward. However, the LSO subsequently learned that the Individual had been arrested and charged with another DUI since submitting the QNSP which he had not disclosed in his response to the LOI. At the hearing, the Individual admitted to having consumed alcohol the weekend prior to the hearing. A DOE-contracted psychologist testified that the Individual's AUD continued to impair his judgment and reliability. The Administrative Judge concluded that the Individual had not resolved any of the security concerns asserted by the LSO, and therefore determined that the Individual's access authorization should not be restored. (OHA Case No. PSH-23-0076, Harmonick)