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Summary of Decisions - February 3, 2014 – February 7, 2014

February 7, 2014 - 10:27am


Personnel Security (10 CFR Part 710)

On February 4, 2014, 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 relating to his diagnosed mental condition and conduct. Specifically, the Hearing Officer concluded that the individual had not mitigated the DOE’s concerns regarding his disruptive and inappropriate behavior in the workplace, including engaging in loud arguments using profanity, and other aggressive behavior outside the workplace, all of which led a DOE-consultant psychologist to diagnose him as suffering from a personality disorder that causes a significant defect in judgment or reliability.  OHA Case No. PSH-13-0100 (William M. Schwartz)

Freedom of Information Act (FOIA) Appeals

On February 4, 2014, OHA issued a decision denying a FOIA Appeal filed by Wynship W. Hillier.  Mr. Hillier had filed a FOIA request for any information about him in the DOE’s possession.  In a December 2013 determination, the DOE’s National Nuclear Security Administration (NNSA) indicated that it its search for records responsive to Mr. Hillier’s request yielded two documents, which NNSA released in their entirety to Mr. Hillier.  In his Appeal, Mr. Hillier challenged the adequacy of NNSA’s search.  OHA’s review of Mr. Hillier’s appeal indicated that he sought more information on appeal than in the underlying FOIA request.  OHA noted that such an attempt to use the administrative appeal process to expand the scope of a FOIA request is not permitted.  With respect to NNSA’s determination, OHA concluded that NNSA’s search in response to Mr. Hillier’s FOIA request was reasonably calculated to reveal records responsive to the request, despite the fact that it did not yield the amount of documents that Mr. Hillier expected.  Therefore, the search was adequate.  Accordingly, OHA denied Mr. Hillier’s appeal. OHA Case No. FIA-14-0003

On February 3, 2014, OHA issued a decision denying an Appeal from a FOIA determination issued by the Loan Programs Office (LPO). The Appellant appealed LPO’s decision to withhold information in the released documents pursuant to Exemption 5, and contested the adequacy of LPO’s search for documents.  LPO provided the Appellant with the credit subsidy cost estimate matrices for the Oglethorpe Power Corporation (OPC) and the Georgia Power Company (GPC) and made redactions on those documents.  The costs were provided to the Office of Management and Budget (OMB) to either approve or modify, before OMB would get back to LPO to provide those amounts to the companies.  Thus, OHA concluded that the matrices were predecisional as they were not yet reviewed by OMB, and accordingly, LPO properly invoked Exemption 5.  Moreover, the Appellant argued that LPO should have provided the credit cost estimate matrix for a third company – the Municipal Electric Authority of Georgia (MEAG).  However, OHA agreed that the scope of the Appellant’s Request did not include MEAG’s credit subsidy costs as it was not yet transferred to OMB for review.  OHA Case No. FIA-14-0006

Privacy Act Appeal

On February 6, 2014, OHA granted in part a Privacy Act Appeal filed by Vicki Locklair (Appellant) of a determination issued by the Office of the Chief Information Office (CIO).  In her request, the Appellant asked for a copy of her personnel security folder.  CIO released 136 documents to the Appellant.  In her Appeal, the Appellant claimed that she did not receive a DVD copy of her 2013 security interview, a DVD or cassette and video copy of her two 2006 security interviews, a DVD or cassette and video of her 2006 Accelerated Access Authorization Program (AAAP) psychological evaluation, and her 2006 AAAP Minnesota Multi-Phasic Inventory (MMPI) test results.  After contacting CIO, OHA determined that a DVD copy of the 2013 security interview existed in her folder at the time of her request, along with cassette copies of her two 2006 security interviews.  CIO sent these items for transcription after the date of the request.  We found that because the electronic versions existed in her security folder at the time of the request, they should have been released to the Appellant.  Therefore, we remanded the matter to CIO for these items.  As to the 2006 psychological evaluation and MMPI results, the Appellant was provided with what was in her personnel security folder at the time of the request.  Therefore, OHA granted the Appeal as to the 2013 security interview and two 2006 security interviews and denied the remainder of the Appeal.  OHA Case No. FIA-14-0005