Summary of Decisions - May 22, 2023 - May 26, 2023

FOIA Appeal (FIA)

FOIA; Fee Waiver; Denied

On May 22, 2023, the Office of Hearings and Appeals (OHA), denied a Freedom of Information Act ( FOIA) appeal filed by Paul Bubbosh, of George Mason University (Appellant), seeking the names of businesses seeking a pre-application consultation with the Department's Title 17 Innovative Clean Energy Loan Guarantee Program. The Appellant appealed an Interim Response issued by the Department of Energy's Office of Public Information on May 1, 2023, in which it denied the Appellant's request for a fee waiver because the Appellant's request for records were not in the public interest.

In the appeal, the Appellant argued his request was in the public interest because disclosure of the requested records would contribute to the public's understanding of government operations or activities by "allowing the public to know and understand the entities that are seeking loan assistance by the DOE," "identifying how the government interacts with businesses," and would "likely result in potential recommendations for improvement in the process."

After reviewing the Appellant's submission, OHA found the Appellant did not demonstrate that a reasonably broad audience existed that would be interested in the names of business seeking consultations with the DOE Loan Program's Office. OHA also found the Appellant did not demonstrate he intended, and was able, to disseminate the information obtained from the disclosed records with the public. Accordingly, the Appellant's appeal was denied. (OHA Case No. FIA-23- 0017)

Personnel Security Hearing (PSH)

Access Authorization Not Restored; Guideline G (Alcohol Consumption), Guideline J (Criminal Conduct)

On May 24, 2023, an Administrative Judge found that an Individual's security clearance should not be restored. The Individual had been arrested and charged with DUI in 2022, his sixth drinking and driving charge. A DOE-contractor Psychologist diagnosed the Individual with Alcohol Use Disorder, Moderate Severity. At the hearing, evidence was presented that the Individual had not complied with the Psychologist's treatment recommendations and the Psychologist testified that the Individual was not rehabilitated or reformed. Furthermore, there was not sufficient evidence to show that the Individual had reformed from his long pattern of alcohol -related criminal conduct. The Administrative found that the security concerns about the Individual's alcohol consumption and criminal conduct were not resolved and, therefore the Individual's security clearance should not be restored. (OHA Case No. PSH-23-0039, Martin)

Access Authorization Not Granted; Guideline E (Personal Conduct) and Guideline I (Psychological Conditions)

On May 24, 2023, an Administrative Judge determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The Individual was arrested for a drug-related offense while attending college and was denied a security clearance by the United States Navy after an investigation revealed that he failed to disclose his illegal drug use and arrest. The Individual completed a Questionnaire for National Security Positions (QNSP) in 2022 in which he disclosed that he had been required to undergo a psychological evaluation after engaging in disruptive behavior while attending college, had been hospitalized after bizarre behavior in 2019, and was fired from a job in 2020. However, an investigation revealed that the Individual failed to disclose that he had been diagnosed with Bipolar Disorder and had not complied with treatment recommendations. A DOE - contracted Psychologist (DOE Psychologist) evaluated the Individual and endorsed the Individual's diagnosis with Bipolar Disorder. At the hearing, the Individual asserted that he was unaware of his diagnosis with Bipolar Disorder when he completed the QNSP, he was undergoing treatment with a psychologist, and that the other incidents cited as security concerns were isolated events which were unlikely to reoccur. However, the Individual had not consulted with a psychiatrist concerning potential medication to control symptoms of Bipolar Disorder. The DOE Psychologist opined that the Individual remained at risk of Bipolar Disorder impairing his judgment, stability, reliability, or trustworthiness. The Administrative Judge concluded that the Individual's explanations for his omissions on the QNSP were implausible, his pattern of disruptive and inappropriate conduct continued to call into question his judgment and reliability, and that his Bipolar Disorder continued to present a risk of impairing his judgment, stability, reliability, and trustworthiness. Therefore, the Administrative Judge determined that the Individual should not be granted access authorization. ( OHA Case No. PSH-23-0066, Harmonick)

Access Authorization Granted; Guideline G (Alcohol Consumption)

On May 26, 2023, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. In June 2022, the Individual was charged with Driving While Intoxicated (DWI). In response, the Local Security Office sent him to undergo a psychological evaluation.  After the October 2022 evaluation, the DOE-consulting Psychologist ( DOE Psychologist) diagnosed the Individual with Unspecified Alcohol Use Disorder (AUD). She recommended the Individual remain abstinent from alcohol for six months, attend alcohol rehabilitation counseling or attend Alcoholics Anonymous (AA) at least three times weekly, obtaining a sponsor . Lastly, the DOE Psychologist recommended the Individual undergo "at least three PEth tests" to provide evidence of abstinence from alcohol. The Individual and his witnesses testified that he has not been abstinent, but he has been controlling his alcohol consumption.  Further, he only consumes alcohol at home. At the hearing, the DOE Psychologist confirmed her diagnosis and stated that the Individual was not rehabilitated or reformed from his alcohol disorder. She continued that the Individual consumed alcohol in what would be considered a binge episode two days before the hearing, according to his testimony. Accordingly, the Individual was not able to demonstrate that he had resolved the security concerns arising under Guideline G. (OHA Case No. PSH-23-0048, Fishman)

Access Authorization Restored; Guideline G (Alcohol Consumption and J (Criminal Conduct)

A DOE Contractor employs the Individual in a position that requires him to hold an access authorization.  On March 26, 2022, the Individual was arrested and charged with driving while intoxicated (DWI).  As a result of this incident and two other past alcohol related charges (both minor in possession of alcohol charges), the Individual was asked to complete a letter of interrogatory (LOI) in May of 2022.  In July of 2022, the Individual was asked to undergo an evaluation with a DOE contractor psychologist. The DOE Psychologist . The DOE Psychologist diagnosed the Individual with Unspecified Alcohol-Related Disorder and concluded that he binge consumed alcohol to the point of impaired judgment.  The DOE Psychologist determined  that the Individual could demonstrate rehabilitation or reformation by completing an IOP program, continuing in aftercare for a minimum of six months, and completing Phosphatidylethanol (PEth) tests for 12 months.

The Individual immediately started his abstinence from alcohol after the day of his DWI arrest and later entered and completed an Intensive Outpatient Program for his alcohol misuse problem. The Individual also submitted documentation of monthly negative PEth tests.

A counselor from the Individual's IOP program and the DOE Psychologist testified ta the hearing their opinion that the Individual had been rehabilitated and reformed from his alcohol misuse problem.

The Administrative Judge found tat the Individual had resolved the Guideline G concerns regarding his alcohol misuse. The Administrative Judge also found that because the Individual's only criminal charges were related to his past alcohol misuse and that he had been rehabilitated from his alcohol problem, the Individual had also resolved the Guideline J security concerns. given this evidence, the Administrative Judge found that the Individual's clearance should be restored. (OHA Case No. PSH- 23-0035, Cronin)

Access Authorization Restored; Guideline G (Alcohol Consumption)

On May 23, 2023, an Administrative Jude determined that the Individual's access authorization should 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 regarding the Individual's alcohol consumption. Regarding the Guideline G allegations, the LSO alleged that after evaluating the Individual in September 2022 the second DOE Psychologist determined that the Individual meets the diagnostic criteria for Alcohol Use Disorder (AUD), Severe, in Early Remission, pursuant to the DSM-V, that this condition impaired her judgement, and that she did not show adequate evidence of rehabilitation or reformation . The LSO also alleged that in April 2019, the first DOE psychologist determined that the Individual met the diagnostic criteria for SU, Alcohol, Moderate, in early full remission, pursuant to the DSM -V. The LSO alleged that in July 2022, the Individual told her employer's Occupational Medicine (OM) psychologist that from September 2020 to June 2022, "she would consume one large alcoholic seltzer in addition to a quarter of a pint of vodka on most evenings after work and that on weekends she would consume several cans of alcoholic seltzer and a quarter of a pint of vodka. The LSO also indicated that the Individual "admitted that from late 2019 to September 2020, she 'drank excessively.'" Finally, the LSO alleged that in August 2018, the Individual was arrested and charged with DWI and Abuse of a Child when the breath alcohol test (BAT) registered results at .21 g/210L after she consumed five mini liquor bottles of whiskey and two beers prior to her arrest.

The Individual testified on her own behalf and presented the testimony of four other witnesses. The evidence in the record established that the Individual had been arrested and criminally charged in 2018 after consuming alcohol and driving. The Individual properly reported the 2018 incident and underwent treatment at an outpatient facility. The first DOE Psychologist who evaluated the Individual in 2019 diagnosed the Individual with Substance Use (SU), Alcohol, Moderate, in Early Full Remission. The Individual remained abstinent from alcohol for several months, and her alcohol consumption increased to the point where she admitted herself into an inpatient rehabilitation facility in 2022. The Individual completed the program, joined Alcoholics Anonymous (AA), regularly participated in EAP classes, sought one-on-one therapy with a counselor, and submitted to a number of alcohol tests, which were negative. The Individual also shifted her understanding of her alcohol consumption and her primary purpose in receiving treatment in 2022 was because she understood her alcohol consumption was maladaptive. Further, although the second DOE Psychologist diagnosed the Individual with AUD, she testified that the Individual had shown adequate evidence of rehabilitation and reformation. Accordingly, the Individual had mitigated the stated Guideline G concerns pursuant to the mitigating factor at ¶ 23(b). (OHA Case No. PSH-23-0037, Rahimzadeh)

Access Authorization Granted; Guideline G (Alcohol Consumption)

On May 23, 2023, an Administrative Judge determined that the Individual's access authorization should be granted under 10 C.F.R. Part 710. In February 2022, the Individual was cited and charged with Criminal Mischief.  Previously, In October 2020, he was arrested and charged with Battery Against a Household Member. And in Jude 2012, police cited and charged him with Wrongful Use of Public Property. The Individual admitted to consuming alcohol prior to all three incidents. After the Individual self-reported the February 2022 incident, the Local Security Office (LSO) sent the Individual to undergo a psychological evaluation. After the July 2022 evaluation, the DOE-consulting Psychologist (DOE Psychologist) diagnosed the Individual with Alcohol Use Disorder (AUD), mild, in early remission. He recommended the Individual remain abstinent, enroll in an Intensive Outpatient Program (IOP), and actively participate in in-person Alcoholics Anonymous (AA). The DOE Psychologist also diagnosed the Individually with suffering from a Neurocognitive Disorder. The Individual presented evidence at the hearing that he suffered a Traumatic Brain Injury (TBI) in a 2018 motorcycle accident.  The DOE Psychologist indicated that the TBI caused a frontal lobe impairment that lessened the buffer between having an emotional feeling and acting on it when the Individual consumed alcohol. The Individual's girlfriend and mother testified that he has expressed to them that he never intends to consume alcohol again. The Individual's current and past supervisors testified that the Individual was honest, trustworthy, and reliable, which was confirmed by the girlfriend and mother . The Individual presented a letter from his counselor, which indicated that counseling had been affective for the Individual. He also submitted numerous negative phosphatidylethanol laboratory blood tests. The Individual indicated that he was attending online AA, was working on step three, and did not have a sponsor. He stated that he attended online due to his erratic work schedule, which also was why his two attempts at working with a sponsor were not successful. At the hearing, the DOE Psychologist confirmed his AUD, mild, diagnosis, but opined that the Individual has demonstrated rehabilitation. The DOE Psychologist stressed that, during the evaluation, the Individual did not seem to understand the severity of his maladaptive alcohol use, which contrasted with the Individual's honest and vulnerable testimony. Due to the Individual's mitigation of the concerns raised under Guideline G concerns, the Administrative Judge found that the Individual mitigated the concerns raised by his alcohol use. Accordingly, the Individual was able to demonstrate that he had resolved the security concerns arising under Guideline G. (OHA Case No. PSH-23-0034, Fishman)