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Summary of Decisions - April 22, 2013 – April 26, 2013

April 26, 2013 - 9:25am

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Personnel Security Hearing (10 CFR Part 710)

On April 23, 2013, a Hearing Officer issued a decision in which he determined that an individual’s access authorization should not be restored. In reaching this decision, the Hearing Officer found that the individual had not resolved security concerns associated with a Major Depressive Disorder (MDD) diagnosis by a DOE psychologist, a determination by the DOE psychologist that the individual used alcohol habitually to excess, and the individual’s history of financial irresponsibility including his failure to file federal tax returns for 2010 and 2011. The individual presented testimony and evidence showing that he has was receiving treatment for his MMD and alcohol problems, that he had filed his delinquent tax returns, and that he was actively trying to resolve his debt problems.  However, the Hearing Officer found that the individual was still in the relatively early stages of his treatment program and that the individual had not, as of the date of the hearing, contacted all of his creditors. Based on the record, the Hearing Officer found that the individual had not presented sufficient mitigating evidence to justify restoring his security clearance.  OHA Case No. PSH-13-0007 (Richard Cronin, H.O.)

Freedom of Information Act (FOIA) Appeals

On April 25, 2013, OHA issued a decision denying a FOIA Appeal from a determination issued by the Office of Information Resources (OIR).  The Appellant appealed the OIR’s decision to withhold portions of released documents pursuant to Exemption 5 and contested the adequacy of OIR’s search.  OIR stated that portions of the documents were withheld pursuant to the attorney-client and deliberative process privileges of Exemption 5. OHA, acting through the Chief Information Officer pursuant to a delegation from the OHA Director reviewed the withheld information and determined that OIR properly invoked the attorney-client privilege as the information withheld consists of 1) a communication among DOE attorneys recommending legal advice to be communicated to a DOE program office, and 2) a communication of legal advice from DOE’s attorneys to a DOE program office. OHA also determined that the OIR properly invoked the deliberative process privilege as the nature of the withheld information was predecisional and contained opinions pertaining to what legal advice should be provided to a DOE program office regarding a particular executive correspondence document. OIR stated that three offices conducted a search for responsive documents:  the Office of the Executive Secretariat, the Office of the General Counsel, and OHA.  Upon review of each office’s description of its search, OHA determined that OIR conducted an adequate search for responsive documents.  Therefore, OHA denied the Appeal.  OHA Case No. FIA-13-0020 (OCIO)

On April 24, 2013, OHA granted in part a FOIA Appeal filed by the Cause of Action (Appellant) of a determination issued by the Loan Guarantee Program Office (LGPO).  In its request, the Appellant asked for the names of 460 applicants who have applied to LGPO since its inception along with additional information about those applicants.  On February 5, 2013, LGPO sent a final response to the Appellant in which it produced responsive documents, but withheld portions of those documents under Exemption 4.  The Appellant appealed claiming that LGPO did not respond in a timely fashion and its response was incomplete.  In addition, the Appellant claimed that the information LGPO withheld under Exemption 4, should be released.  LGPO stated that it does not have a copy of the actual data that GAP used to draft its report.  LGPO explained that it provided raw data for GAO’s report, which GAO analyzed and used to create the report.  LGPO did not continue to update these raw data files after providing the information to GAO.  LGPO asserted it is not required to create records for the purposes of responding to a FOIA request.  OHA agreed.  However, LGPO did locate information responsive to the request after the Appeal was filed.  It will release that information to the Appellant on remand.  As to Exemption 4, OHA found the withheld information was “commercial or financial,” “obtained from a person,” and “confidential.”  The Appellant argued that the information was not “obtained from a person,” because DOE created the document in question.  OHA disagreed, finding that the information was provided by the loan applicants and compiled by DOE.  OHA also found that release of the information would cause substantial competitive harm to the loan applicants because it could harm them in possible future funding situations and give their competitors information about the loan applicants’ future business interests and the funding requirements associated with those interests.  Therefore, OHA granted the Appeal as to the information found on Appeal and denied the remainder of the Appeal.  OHA Case No. FIA-13-0015

On April 25, 2013, OHA issued a decision remanding a FOIA (Appeal) from a determination issued by the Office of Information Resources (OIR) and Office of Nuclear Energy (NE).  The Appellant appealed the OIR and NE’s decision to withhold a draft plan in its entirety pursuant to Exemption 5.  The OIR and NE claimed that as the plan was still in draft form, that it was predecisional and deliberative.  OHA concluded that Exemption 5 was properly invoked, but remanded the matter so that the OIR and NE could release reasonably segregable portions of the draft plan and issue a new determination.  OHA Case No. FIA-13-0019

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