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Summary of Decisions - August 12, 2013 - August 16, 2013

August 16, 2013 - 1:27pm

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Personnel Security Hearing (10 CFR Part 710)

On August 13, 2013, a Hearing Officer issued a decision in which he determined that an individual’s access authorization should not be restored. In reaching this determination, the Hearing Officer found that the individual had not resolved security concerns regarding his mood disorder manifested by his actions in viewing and storing sexually explicit pictures on his government-issued computer. The individual presented testimony from mental health experts regarding the status of his recent treatment for his mood disorder. The individual’s treating psychotherapist testified that the individual needed additional time in treatment before he could be confident that his mood disorder was in control. With regard to the individual’s viewing of pornography, the individual testified that viewing the material was a mistake that would not be repeated. Additionally, an expert testified that the individual’s viewing of pornography was a result of the individual’s mood disorder. Given the testimony and evidence in the case, the Hearing Officer found that the individual had not sufficiently mitigated the security concerns arising from his mood disorder.  Further, the Hearing Officer found no mitigation of the individual’s misuse of his government-issued computer and, because the individual’s viewing of pornography stemmed from his still unresolved mood disorder, the Hearing Officer found that the security concerns relating to his honesty, reliability and trustworthiness had not been resolved.  OHA Case No. PSH-13-0056 (Richard Cronin, H.O.)

On August 16, 2013, an OHA Hearing Officer issued a decision in which she concluded that an individual should not be granted DOE access authorization.  A DOE Operations Office referred an applicant for a security clearance to administrative review citing as security concerns issues pertaining to the individual’s alleged falsification of security questionnaires, as well as the individual’s history of arrests.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer determined that the individual did not present sufficient evidence to mitigate the security concerns raised by his deliberate omissions of substantial information from security questionnaires in June 2012 and October 2012.   In addition, the Hearing Officer concluded that, despite the passage of a substantial period of time since the individual’s most recent criminal conduct, evidence in the record raised doubts regarding whether such conduct was unlikely to recur in the future.  OHA Case No. PSH-13-0058 (Diane DeMoura, H.O.)

On August 16, 2013, an OHA Hearing Officer issued a decision in which she concluded that the DOE should not restore an individual’s suspended DOE access authorization.  A DOE Operations Office referred the individual to administrative review based upon security concerns relating to the individual’s use of alcohol, including the individual’s two past arrests for Driving While Intoxicated (DWI) as well as his diagnosis of alcohol dependence by a DOE psychologist.   Following the hearing, the Hearing Officer determined that the individual had not presented sufficient evidence to mitigate the security concerns.  The Hearing Officer found that the individual had made excellent progress in treating his alcohol problem, including acknowledging his condition, voluntarily attending an intensive outpatient treatment program, and becoming an active participant in Alcoholics Anonymous – attending several meetings per week, working closely with a sponsor, and chairing meetings.  In addition, the individual, having committed to abstinence from alcohol, demonstrated six months of abstinence from alcohol and intended to maintain his abstinence indefinitely.  Nevertheless, the Hearing Officer was persuaded by the DOE psychologist’s testimony that, with only six months of abstinence and treatment, it was too early in the individual’s recovery to conclude that he was adequately rehabilitated from his condition.  Similarly, the Hearing Officer determined that insufficient time had elapsed since the individual’s most recent DWI arrest to fully resolve the security concerns raised by his past criminal conduct.  OHA Case No. PSH-13-0062 (Diane DeMoura, H.O.)

On August 13, 2013, an OHA Hearing Officer issued a decision in which she concluded that an individual’s suspended DOE access authorization should not be restored.  A DOE Operations Office suspended the individual’s security clearance and referred him to administrative review citing as security concerns issues related to the individual’s sexual addiction to pornography, including (1) the opinion by a DOE psychologist that the individual met the diagnostic criteria for Paraphilia, Not Otherwise Specified (NOS), (2) the individual’s misuse of a government computer over a 20-year period, and (3) the individual’s dishonesty during a past reinvestigation of his security clearance when asked whether he ever viewed sexually explicit materials at work.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer determined that the security concerns remained unresolved.  Specifically, with respect to the individual’s mental health condition, the Hearing Officer concluded that, despite the individual’s progress in treating his addiction, it was too early in his recovery process to conclude that he was successfully rehabilitated.  Consequently, regarding the remaining issues stemming from the individual’s underlying addiction – the past dishonesty and misuse of a government computer, the Hearing Officer concluded that insufficient time had elapsed to demonstrate a low likelihood of recurrence.  OHA Case No. PSH-13-0026 (Diane DeMoura, H.O.)

Freedom of Information Act (FOIA) Appeal

On August 14, 2013, OHA issued a decision granting, in part, an appeal (Appeal) from a FOIA determination issued by the Office of Information Resources (OIR).  The Appellant filed a FOIA request seeking copies of any and all records related to a named OHA employee’s use of flexiplace or telecommuting during her entire tenure at DOE.  In its response, OIR stated that after OHA and the Office of the Chief Financial Officer (CFO) conducted searches of their respective files, only one responsive document was identified.  OIR released this document to Appellant but withheld certain information that was deemed exempt from the FOIA under Exemption 6.  The Appellant contested both the Exemption 6 withholding and the adequacy of the search.  Upon review, OHA determined that the redacted portions of the released document were properly withheld under FOIA Exemption 6 because their disclosure would constitute a clearly unwarranted invasion of personal privacy.  On the issue of the adequacy of the search, OHA remanded the case to OIR with directions that OIR (1) provide an additional response to the Appellant regarding two additional responsive documents that OHA had located; and (2) assign CFO to make an additional search of CFO records, pending a new estimation of CFO’s search costs and the Appellant’s agreement to pay such search costs. OHA Case No. FIA-13-0051

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