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Summary of Decisions - July 21, 2014 – July 25, 2014

July 25, 2014 - 1:28pm

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Personnel Security (10 CFR Part 710)

On July 22, 2014, an OHA Administrative Judge issued a decision in which he determined that the DOE should not restore an individual’s access authorization.  As security concerns, under Criterion K of 10 CFR Part 710, a Local Security Office (LSO) cited the individual’s October 2013 arrest for possession of cocaine and his admission that he had used cocaine in 2011 and 2012.  The LSO also raised concerns under Criterion L regarding his questionable judgment in driving with a Blood Alcohol Content in excess of the legal limit and his criminal activity (cocaine use and driving while intoxicated).  The Administrative Judge found that the individual had not resolved these concerns.  The individual attended a 12-hour substance abuse counseling program and will be on probation until mid-2015.  Although the individual is committed to abstaining from cocaine use and is abiding by his probation terms in avoiding all alcohol, the Administrative Judge felt that too little time had elapsed since the individual’s counseling and commitment to find that he had sufficiently mitigated the LSO’s security concerns.  OHA Case No. PSH-14-0039 (William M. Schwartz)

On July 22, 2014, an OHA Administrative Judge (AJ) issued a decision in which he concluded that the DOE should not restore an individual’s access authorization.  After conducting a hearing, convened at the individual’s request, and evaluating all relevant evidence, the AJ concluded that the individual had not mitigated the security concerns raised under criteria (f), (g) and (l) by his false statements during Personnel Security Interviews, his failure to provide complete and truthful answers on a Questionnaire for National Security Positions, his illegal activity, his failure to adhere to DOE security requirements, and his failure to safeguard classified information and sensitive government information technology systems. Therefore, the AJ was unable to conclude that restoring the individual’s security clearance would not endanger the common defense and be clearly consistent with the national interest.  OHA Case No. PSH 14 0034 (Robert Palmer)

On July 25, 2014, an OHA Administrative Judge issued a decision in which he determined that the DOE should not grant DOE access authorization to an individual.  As security concerns under Criterion L of 10 CFR Part 710, a Local Security Office (LSO) cited the individual’s failure to file Federal and state tax returns for 2008 through 2012.  The Administrative Judge found that the individual had not resolved these concerns.  The individual explained that she had been unable to obtain documentation of her income in 2009 and 2010. Although she had proper documentation to file her 2011 and 2012 taxes, she believed that she lacked sufficient skills to do so, and could not afford to use a commercial tax filing service.  She had, however, filed her taxes for 2013, and acknowledged that she must file the outstanding tax returns.  Nevertheless, the Administrative Judge felt that the individual had not taken sufficient steps toward resolving her tax matters for him to conclude that she had mitigated the LSO’s security concerns.  OHA Case No. PSH-14-0046 (William M. Schwartz)

Freedom of Information Act (FOIA) Appeals

On July 21, 2014, OHA issued a decision denying a FOIA Appeal filed by Tim Hadley (Appellant) of a determination issued by the Office of Information Resources (OIR).  OHA also dismissed two other Appeals filed by the Appellant of determinations issued by Office of the Inspector General (OIG) and Oak Ridge Office (Oak Ridge), respectively, on procedural grounds.  In his Appeal of the OIR determination, Mr. Hadley challenged OIR’s withholdings under Exemptions 5, 6, and 7(C).  However, OHA found that OIR properly applied the cited exemptions in withholding the information.  OHA determined that the information withheld under Exemption 5 was predecisional and reflected the give-and-take of the consultative process.  Further, release of the information would not be in the public interest because there was no public interest in the disclosure.  OHA further found that the information withheld under Exemptions 6 and 7(C) was information that applied to particular individuals, such as names, initials, and signatures; titles; and telephone numbers.  The information identifying the names and signatures of the current federal OIG employees whose information was withheld, would also compromise a significant privacy interest.  Federal employees involved in law enforcement possess protectable privacy interests in their identities.  OHA has consistently found that OIG is a law enforcement agency.  Release of any information could result in identifying those OIG employees.  In balancing the privacy interests found, OHA considered whether release would further the public interest by shedding light on the operations and activities of the government.  OHA found that the public interest in the withheld information is minimal at best.  Therefore, the privacy interest outweighed the public interest and, accordingly, OHA denied the Appeal.  OHA Case Nos. FIA-14-0036, FIA-14-0039, FIA-14-0040

On July 24, 2014, OHA issued a decision denying a FOIA Appeal filed by Tim Hadley (Appellant) of a determination issued by the Oak Ridge Office (Oak Ridge).  In his Appeal, the Appellant challenged Oak Ridge’s withholdings under Exemption 6.  OHA found that Oak Ridge properly withheld the information under Exemption 6 as applied to particular individuals.  Release of the information would compromise a significant privacy interest of the persons named contractor employees.  In balancing the privacy interests found, OHA considered whether release would further the public interest by shedding light on the operations and activities of the government.  OHA found that the public interest in the withheld information is minimal at best.  Therefore, the privacy interest outweighed the public interest.  OHA Case No. FIA-14-0045

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