Summary of Decisions - May 9, 2016 – May 13, 2016

Personnel Security (10 CFR Part 710)

On May 10, 2016, an OHA Administrative Judge issued a decision in which he concluded that an individual’s security clearance should be restored. The LSO began an investigation of the individual after being contacted by a woman who stated that her daughter was in a relationship with the individual and that the woman had concerns about the individual’s judgment and reliability. The LSO largely relied upon information from meetings with the parents, 65 emails/texts from the daughter to her mother, and two secretly recorded conversations between the individual and the daughter. In the Notification Letter, the LSO alleged security concerns under Criteria F, H and L. The Administrative Judge’s found that (1) the hearsay evidence offered by the LSO was unreliable (based largely in the information being contradicted by the testimony of third parties) and (2) portions of the testimony of the individual’s then-girlfriend (who testified under subpoena) was knowingly false; and, therefore, the Administrative Judge accorded de minimus weight to such evidence. With respect to the individual’s six statements in the PSI which the LSO alleged were deliberately false, the Administrative Judge found that in three of those instances the individual had provided correct information, in two of those instances the LSO failed to identify the basis for alleging a false statement, and in the remaining instance the allegation did not relate to significant information. With respect to the DOE consulting psychiatrist’s diagnoses of the individual as meeting the DSM-5 criteria for Paranoid Personality Disorder and Antisocial Behavior Disorder, the Administrative Judge found the evaluation unpersuasive. DOE psychiatrist testified that he assumed certain information about the individual’s psychological functioning in order to reach the diagnoses and that without those assumptions his evaluation was inconclusive. The individual’s forensic psychologist performed standard psychological testing as part of his evaluation of the individual, which testing was found valid and evidenced no psychopathology. The sole allegation of criminal conduct was a domestic violence report which was filed three days after the individual’s girlfriend had moved out of his residence and was not investigated by local law enforcement.  Based upon the testimony of the individual and his former girlfriend, the Administrative Judge concluded that the individual’s conduct occurred in unusual circumstances with no evidence of similar conduct in other relationships and was, therefore, unlikely to recur. On this basis, the Administrative Judge found that the individual had resolved the security concerns arising under Criteria F, H and L.  OHA Case No. PSH-15-0081 (Wade M. Boswell)

Freedom of Information Act (FOIA) Appeal

On May 12, 2016, OHA denied a Freedom of Information Act (FOIA) Appeal filed by the Republican National Committee (Appellant) from a determination issued to it by the Office of Information Resources (OIR). In its determination, the OIR withheld, pursuant to Exemption 6 of the FOIA, information in an email between former Secretary of Energy Steven Chu and former Secretary of State Hillary Clinton. OIR also withheld two attachments to that email in their entirety pursuant to Exemption 6. The Appellant challenged OIR’s withholding of the attachments only. In its determination, OHA found that a significant privacy interest would be compromised by the release of the attachments and that there was little or no public interest in their disclosure. After balancing the relevant privacy interests against the public interest involved, OHA found that OIR had properly applied Exemption 6 to the two attachments. OHA further found that no portions of the attachments were reasonably segregable. Accordingly, OHA denied the Appeal. OHA Case No. FIA-16-0026