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Summary of Decisions - December 17, 2012 – December 21, 2012

December 21, 2012 - 1:13pm

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Personnel Security Hearing (10 CFR Part 710)

On December 21, 2012, 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 associated with a recent 2012 Bankruptcy Petition and a determination from a DOE psychologist that the I\individual suffered from Pathological Gambling. At the hearing, the individual presented testimonial evidence that she had been abstinent from gambling for eight months, regularly attended Gamblers Anonymous (GA), and was receiving counseling from a professional counselor.  However, the DOE psychologist, after listening to the testimony at the hearing, found that the individual had not demonstrated a sufficient period of abstinence from gambling to provide a reasonable assurance that she was rehabilitated from her gambling disorder. Given the evidence produced at the hearing, the Hearing Officer found that the individual had failed to sufficiently resolve the concerns associated with her gambling and pattern of financial irresponsibility.  OHA Case No. PSH-12-0116 (Richard A. Cronin, H.O.)

On December 18, 2012, an OHA Hearing Officer issued a decision in which he determined that an individual should not be granted a DOE access authorization.  The individual had a history of two alcohol alcohol-related arrests.   In addition, a DOE psychologist found that the individual would consume six to eight alcoholic beverages during the evening, once or twice a week.  The DOE psychologist accordingly concluded that the individual habitually used alcohol to excess.  The Hearing Officer found that, since the individual continued to drink excessive amounts of alcohol, and stated no intention to change his level of consumption, he had not mitigated the security concerns.  OHA Case No. PSH-12-0113 (Steven L. Fine, H.O.)

Freedom of Information Act (FOIA) Appeal

On December 20, 2012, OHA issued a decision granting in part a Freedom of Information Act (FOIA) Appeal filed by Environmental Defense Institute (EDI) from a determination issued by the DOE Idaho Operations Office (Idaho).  EDI filed a request in which it sought several documents concerning the Advanced Test Reactor, located at the Idaho National Laboratory. In a February 8, 2011, determination, Idaho provided responsive documents, but withheld portions of one responsive document on the basis of Exemption 3.  EDI raised several challenges to the determination in its Appeal.  Except for the challenge regarding Idaho’s application of Exemption 3, EDI’s challenges were addressed in a separate Decision and Order issued in OHA Case No. TFA-0465.  Because Exemption 3 protects from disclosure information that is properly identified as Unclassified Controlled Nuclear Information (UCNI) pursuant to the Atomic Energy Act of 1954, we referred this Appeal to the Office of Health, Safety and Security, which is responsible for reviewing such information.  That Office determined that some of the information previously withheld under Exemption 3 was properly identified as UCNI, and therefore should continue to be withheld from public disclosure under Exemption 3 of the FOIA.  It also determined that some of the information initially withheld did not qualify for protection under Exemption 3.  Consequently, we remanded the matter to Idaho for a new determination as to whether the information previously withheld but not currently withholdable should be released to EDI or withheld pursuant to any other provision of the FOIA.  OHA Case No. TFC-0009

Whistleblower Appeal (10 CFR Part 708)

On December 20, 2012, OHA issued a decision denying an Appeal of a Dismissal of a “Whistleblower” Complaint filed by Wendy L. Warren (Appellant or Ms. Warren), under 10 CFR Part 708.  Ms. Warren filed the Complaint against her former employers, MS Technology, Inc. (MS) and B&W Y-12, L.L.C. (B&W).  The Appellant alleges in her complaint that MS and B&W terminated her employment after she reported fraud, gross mismanagement, gross waste of funds, and abuse of authority.  Ms. Warren claims that she reported timekeeping irregularities by her supervisor.  An OHA Investigator dismissed the Complaint, finding that the Appellant’s disclosure was too vague and unsupported to come within the ambit of Part 708 protection.  In considering the Appeal, OHA found that the Appellant’s Statement of Issues filed to support her Appeal contained a re-characterization of information she had previously submitted in her Complaint.  For instance, in her Complaint, she stated that she met with the manager of Y-12’s Office of Employee Concerns (OEC) on September 8, 2010, to report “an intimidating situation,” without giving any details.  In her Appeal, however, she affirmatively states that she told the OEC manager that her supervisor was committing timecard fraud.  In denying her Appeal, OHA found that the OHA Investigator correctly relied on the information before him in dismissing the Complaint, and that the Appellant cannot now re-plead her case to make it fit within the regulatory scheme.  OHA Case No. WBA-12-0001

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