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Summary of Decisions - January 20, 2014 – January 24, 2014

January 24, 2014 - 9:30am


Personnel Security (10 CFR Part 710)

On January 22, 2014, an OHA Administrative Judge issued a decision in which he determined that an individual’s request for a DOE access authorization should not be granted.  During a personnel security interview, the individual estimated that he was intoxicated twice during a typical month.  A DOE psychologist subsequently diagnosed the individual with Alcohol-Related Disorder Not Otherwise Specified (NOS) and noted that the individual habitually used alcohol to excess.  At the hearing, the individual unsuccessfully attempted to recant his admission that he drank to intoxication twice a month. The individual also unsuccessfully challenged the Alcohol-Related Disorder NOS diagnosis by presenting the testimony of his own expert, a physician who had treated the individual for a previous substance abuse issue.  Accordingly, the Administrative Judge found that the individual had not mitigated the security concerns associated with his use of alcohol.  OHA Case No. PSH-13-0112 (Steven L. Fine)

On January 23, 2014, an OHA Administrative Judge issued a decision in which he determined that an individual’s DOE access authorization should not be restored.   The individual had a history of two alcohol-related arrests and a DOE psychologist diagnosed the individual with Alcohol Use Disorder (Moderate Severity).  At the hearing, the individual failed to show that he had received sufficient treatment and that he had abstained from using alcohol for a sufficient period of time to establish that he was reformed or rehabilitated from his Alcohol Use Disorder.  The record showed that the individual had not complied with the post-discharge treatment recommendations of his Intensive Outpatient Program.  In addition, the record showed that the individual had only abstained from alcohol for a period of seven months at the time of the hearing, far short of the minimum period of abstinence recommended by the DOE psychologist.  Accordingly, the Administrative Judge found that the individual had not sufficiently mitigated the security concerns raised by his alcohol-related arrests and the DOE psychologist’s diagnosis.    OHA Case No. PSH-13-0114 (Steven L. Fine)

On January 24, 2014, an OHA Hearing Officer issued a decision in which she concluded that an individual’s security clearance should not be restored.  In May 2013, as part of a background investigation, the local security office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address concerns about his alcohol use.  During that PSI, the individual was referred to a DOE consultant psychologist (DOE psychologist) for an agency-sponsored evaluation who concluded that the individual suffers from Alcohol Use Disorder, Severe.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual has not demonstrated adequate evidence of rehabilitation from Alcohol Use Disorder, and thus has not mitigated the DOE’s security concerns.  Accordingly, the Hearing Officer concluded that the individual’s security clearance should not be restored.  OHA Case No. PSH-13-0110 (Kimberly Jenkins-Chapman)

Freedom of Information Act (FOIA) Appeal

On January 24, 2014, OHA issued a decision denying a FOIA Appeal filed by Donna Deedy relating to her request for information regarding nuclear worker health effects research.  In a December 2013 determination, the DOE’s Office of Health, Safety and Security, Office of Health and Safety (HS) indicated that it its search for records responsive to Ms. Deedy’s request yielded eleven responsive documents, which HS released in their entirety to Ms. Deedy.  In her Appeal, Ms. Deedy challenged the adequacy of HS’ search, maintaining that she did not receive “all pertinent documents requested.” OHA’s review of Ms. Deedy’s appeal indicated that Ms. Deedy requested more documents in her 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 HS’ determination, OHA first determined that one of the documents that Ms. Deedy requested does not exist.  Because the FOIA does not require an agency to create records in response to a FOIA request, OHA concluded, HS could not be required to produce a record that did not exist.  Finally, OHA determined that HS’ search in response to Ms. Deedy’s FOIA request was reasonably calculated to reveal records responsive to the request and, therefore, was adequate.  Accordingly, OHA denied Ms. Deedy’s appeal. OHA Case No. FIA-14-0001