Summary of Decisions - May 20, 2013 – May 24, 2013

Personnel Security Hearing (10 CFR Part 710)

On May 22, 2013, an OHA Hearing Officer issued a decision in which he determined that the DOE should grant an individual access authorization.  As security concerns, a Local Security Office (LSO) cited the individual’s past and present association with persons engaged in illegal drug use and possession in his presence.  The Hearing Officer found that the individual no longer associates with persons who use illegal drugs or engage in any other illegal activity, and there was no basis in the record for a concern that the individual will have such associations in the future.  Accordingly, the Hearing Officer found that the DOE should grant the individual a security clearance.  OHA Case No. PSH-13-0022 (Steven J. Goering, H.O.)

On May 20, 2013, an OHA Hearing Officer issued a decision in which he determined that an individual’s DOE access authorization should not be restored.  The individual had been criminally charged with sexual misconduct involving a minor and had two previous incidents in which he had been accused of sexual misconduct involving a minor.  A DOE psychologist found that the individual suffers from Narcissistic Personality Disorder (NPD).  The Hearing Officer found that the individual had not shown that the allegations concerning sexual misconduct with minors were unfounded.  Moreover, three mental health professionals agreed that the individual suffers from NPD.  The individual did not show that he was receiving proper treatment for his mental condition.   OHA Case No. PSH-13-0011 (Steven L. Fine, H.O.)

On May 23, 2013, an OHA Hearing Officer issued a decision in which he determined that an individual’s DOE access authorization should not be granted.  The individual had a history of six arrests, five of which were alcohol-related and two of which were marijuana-related.  In addition, a DOE psychologist diagnosed the individual with Alcohol Dependence.  The Hearing Officer found that the individual had not mitigated any of the security concerns raised by his alcohol abuse and history of criminal conduct, because he was only in the early stages of his recovery from his alcohol dependence and his alcohol dependence was a contributing factor to much of his criminal conduct.  The Hearing Officer did find, however, that the individual had resolved the security concerns arising from his past marijuana use.  OHA Case No. PSH-13-0018 (Steven L. Fine, H.O.)

On May 20, 2013, a Hearing Officer determined that an individual’s security clearance should not be restored. In reaching this determination, the Hearing Officer found that the individual had not successfully addressed the DOE’s security concerns. Specifically, the Hearing Officer found that valid concerns remained regarding the individual’s honesty and reliability, his mental condition (Depressive Disorder NOS), and his numerous arrests and work-related disciplinary issues. The Hearing Officer found, however, that he had successfully addressed the DOE’s concerns regarding his finances. OHA Case No. PSH-13-0015 (Robert B. Palmer, H.O.)

Freedom of Information Act (FOIA) Appeal

On May 24, 2013, OHA issued a decision denying a FOIA appeal (Appeal) from a determination issued by the DOE Office of Information Resources (OIR). The Wall Street Journal, the Appellant, sought categories of records concerning IP addresses of computers that have accessed web pages administered by the DOE’s Energy Information Administration (EIA) or on which data on energy resources are first made public by the EIA. In its partial response to the Appellant’s request, the OIR withheld all IP addresses pursuant to Exemption 6. OIR stated that some of the withheld IP addresses would likely reveal the names of individual visiting the EIA sites and thus these IP addresses were protected under Exemption 6. Further, because it would require an immense effort to separate the exempt IP addresses from the non-exempt IP addresses, OIR found that the exempt and non-exempt IP addresses were inextricably intertwined and could not be reasonable segregated. Thus, OIR withheld all of the IP addresses. OHA found that, given the vast number of IP addresses encompassed in the request, there were IP addresses that would reveal the names of specific individuals accessing the site. OHA further found that these individuals had a protectable privacy interest regarding the potential release of their names. Balancing this privacy interest against the very small public interest that would be furthered by release of the names, OHA found that the release of these IP addresses (revealing the names of private individuals) would constitute an unwarranted invasion of personal privacy and thus were protected pursuant to Exemption 6. Further, OHA found that OIR was correct that, given the immense burden - $235,000, 3,000 worker hours, and the need to develop new software - to separate the exempt IP addresses from the non-exempt IP addresses, the non-exempt IP addresses were inextricably intertwined with the non-exempt IP addresses and that OIR was justified in withholding all of the IP addresses. Given its findings, OHA denied the Appeal. OHA Case No. FIA-13-0006

On May 23, 2013, OHA issued a decision denying a FOIA appeal (Appeal) from a determination issued by the National Energy Technology Laboratory (NETL).  The Appellant appealed the NETL’s decision to apply Exemption 7(a) to withhold the requested documents regarding stimulus grants that were awarded to the North American Power Group.  OHA determined that the NETL sufficiently invoked exemption 7(a) as the withheld information pertained to ongoing law enforcement investigations involving the Inspector General’s Office and the U.S. Attorney’s Office, and that accordingly, release of the information would cause foreseeable harm to the pending investigations.  OHA Case No. FIA-13-0028

On May 20, 2013, OHA issued a decision denying a FOIA appeal (Appeal) from a determination issued by the DOE’s Richland Operations Office (ROO). The Appellant, the Hanford Challenge, contested the ROO’s denial of a fee waiver in processing its FOIA request.  The OHA concluded that as the requested records pertained to an alleged whistleblower reprisal concerning only one individual, those records would not contribute significantly to the public’s understanding of the DOE’s overall support of contractors who are defending whistleblower investigations at the Hanford site.  OHA Case No. FIA-13-0026