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Summary of Decisions - December 10, 2012 – December 14, 2012

December 14, 2012 - 2:29pm

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Personnel Security Hearing (10 CFR Part 710)

On December 13, 2012, an OHA Hearing Officer issued a decision in which she concluded that an individual’s security clearance should not be granted.  A Local Security Office conducted a Personnel Security Interview of the individual to address concerns about the individual’s alcohol use.   A DOE psychiatrist examined the individual and concluded that the individual suffers from Alcohol Dependence.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented sufficient evidence to resolve the security concerns.  Specifically, she found that the individual had not yet established a pattern of abstinence, and therefore had not demonstrated adequate evidence of rehabilitation at this time.  OHA Case No. PSH-12-0104 (Kimberly Jenkins-Chapman, H.O.)

On December 13, 2012, an OHA Hearing Officer issued a decision in which she 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 the security concerns arising from her diagnosis of Narcissistic Personality Disorder (NPD) or her misuse of technology.  The individual was diagnosed by a DOE psychologist with NPD and Adjustment Disorder, with Mixed Anxiety and Depressed Mood.  The DOE psychologist found that the NPD was an illness or mental condition which causes or may cause a significant defect in judgment or reliability.  The individual presented the testimony of her psychiatrist, who indicated that she did not suffer from NPD.  However, the Hearing Officer found that she was more persuaded by the DOE psychologist who had specific expertise in the area of NPD.  The Hearing Officer further found that the individual had not mitigated the concern raised by the NPD diagnosis, primarily because she had not accepted the diagnosis and was not receiving treatment.  In addition, the Hearing Officer found that the individual had failed to mitigate the security concerns raised by her unauthorized use of her supervisor’s password to access her co-workers’ personnel files.  The individual and her husband testified that she was regretful about her conduct.  Notwithstanding, the Hearing Officer observed that the individual’s misconduct was severe and continued for a period of six years, and she did not admit her misconduct until confronted.  OHA Case No. PSH-12-0096 (Janet R. H. Fishman, H.O.)

On December 13, 2012, 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 regarding his history of   legal problems, including arrests, warrants issued for his arrest, and protective orders issued against him. Although the Hearing Officer concluded that the fact that many of these issues arose during the course of an acrimonious divorce, and the fact that the individual had entered into counseling were mitigating factors, these factors were outweighed by the severity of the individual’s most recent assaultive behavior, and by the long-standing nature of the individual’s anger management problems. OHA Case No. PSH-12-0106 (Robert B. Palmer, H.O.)

Freedom of Information Act (FOIA) Appeals

On December 14, 2012, OHA issued a decision remanding in part an appeal (Appeal) from a FOIA determination issued by the Loan Guarantee Program Office (LGPO).  The Appellant appealed the LGPO’s decision to withhold portions of the released documents pursuant to Exemption 4 and contested the adequacy of its search.  The Appellant claimed that Exemption 4 could not apply as the documents were agency records and as the LGPO did not adequately explain why the withheld portions were confidential and entitled to Exemption 4 protection.  OHA determined that while the documents originated from a “person,” and not the DOE, that the LGPO did not adequately justify withholding a substantial portion of the information contained in the two documents.  OHA also determined that the LGPO did not sufficiently explain why it did not produce the other documents that the Appellant claimed should have been provided in response to its FOIA request.  Thus, OHA remanded in part the Appeal to the LGPO.  OHA Case No. FIA-12-0072

On December 14, 2012, OHA issued a decision denying an appeal (Appeal) from a FOIA determination issued by the DOE’s Office of Information Resources (OIR). The Appellant contested the adequacy of the search for documents responsive to its FOIA request, which was conducted by the Office of Headquarters Procurements Services (OHPS).  The OHA reviewed the OHPS’ description of its search and determined that it conducted an adequate search for responsive documents. Therefore, the OHA denied the Appeal. OHA Case No. FIA-12-0073

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