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Summary of Decisions - July 22, 2013- July 26, 2013

July 26, 2013 - 10:06am

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Personnel Security Hearing (10 CFR Part 710)

On July 25, 2013, an OHA Hearing Officer issued a decision in which he concluded that an individual’s security clearance should not be restored.  A Local Security Office began an investigation of an individual’s eligibility for access authorization after the individual was arrested for “public nuisance,” having fallen asleep along the side of a building while intoxicated and partially undressed. The DOE consulting psychologist evaluated the individual and concluded that although he did not meet any DSM-IV-TR classification for alcohol disorders, he was a user of alcohol habitually to excess which is a condition that causes or could cause significant defects in his judgment and reliability.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that although the individual had completed an Intensive Outpatient Program (IOP) for alcohol treatment and was working with both a counselor and an Alcoholic Anonymous (AA) sponsor, he had not been abstinent for the amount of time or completed the requisite work with an AA sponsor that the DOE psychologist had concluded would be necessary to evidence control over his alcohol consumption.  The Hearing Officer further found that the individual had been misleading regarding his IOP treatment. OHA Case No. PSH-13-0037 (Wade M. Boswell, H.O.)

On July 25, 2013, an OHA Hearing Officer issued a decision in which she concluded that an individual’s security clearance should be restored.  In January 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 the individual’s falsifications and drug use.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had presented sufficient evidence to resolve the security concerns associated with her falsifications on three security forms as well as her past use of marijuana.  The Hearing Officer particularly noted the individual’s youth and immaturity at the time of her falsifications and drug use.  Accordingly, the Hearing Officer concluded that the individual’s security clearance should be restored.  OHA Case No. PSH-13-0040 (Kimberly Jenkins-Chapman, H.O.)

On July 26 2013, an OHA Hearing Officer issued a decision in which she concluded that an individual’s security clearance should not be restored.  In November and December 2012, as part of a background investigation, the local security Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address concerns about the individual’s pattern of criminal conduct.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented sufficient evidence to mitigate the security concerns associated with his three charges of Driving Under the Influence.  Accordingly, the Hearing Officer concluded that the individual’s security clearance should not be restored.  OHA Case No. PSH-13-0044 (Kimberly Jenkins-Chapman, H.O.)

Freedom of Information Act (FOIA) Appeals

On July 25, 2013, OHA denied a FOIA Appeal filed by UNROW Human Rights Impact Litigation Clinic (Appellant) of a determination issued by the Office of Information Resources (OIR).  In its request, the Appellant asked for a copy of the “cable from the Embassy of the United State in London bearing the reference ID ‘09LONDON1156’ sent on May 15, 2009, with the subject ‘HMG Floats Proposal for Marine Reserve Covering the Chagos Archipelago (British Indian Ocean Territory.’” In its determination, OIR stated that the document was under the jurisdiction of the Department of State (DOS).  The Appellant asserted that “the DOE is not released from the responsibility of fulfilling our request simply because the document originated within another agency.”  OHA agreed that the determination issued by OIR was inadequate.  The determination did not describe OIR’s search for the requested document.  After receipt of the Appeal, OHA contacted OIR and determined that OIR had searched the Office of Legacy Management, which did not have possession of the document but suggested that either the Office of Policy and International Affairs or the Office of Intelligence and Counterintelligence (IN) might have the document.  OIR contacted both these offices; neither had the document.  IN suggested that OIR contact DOS to determine if it had the document.  OIR contacted DOS, which stated that it had received the same request and that the request was under review.  OIR also contacted the National Nuclear Security Administration and the Golden Field Office, neither of which had the document.  After receipt of the Appeal, OIR also conducted a searched of the headquarters computer system that included documents from the Secretary’s office, using the search terms London, Chagos, HMG, and Marine.  The requested document was not within the system.  OHA found that, given the previous information, OIR’s search for the requested document was adequate.  OIR asked those offices most likely to have the document and the document was not located.  The standard for agency search procedures is reasonableness, not exhaustion of files.  OHA Case No. FIA-13-0049

On July 22, 2013, OHA issued a decision denying an appeal (Appeal) from a FOIA determination issued by the Environmental Management Consolidated Business Center (EMCBC). The Appellant appealed the EMCBC’s determination that it located no responsive records, and challenged the adequacy of its search.  EMCBC explained that it forwarded the request to the site that would have the requested documents, if there were any, and that after conducted a search, the site could not locate any responsive documents.  Thus, OHA concluded that EMCBC conducted an adequate search for records and denied the Appeal.  OHA Case No. FIA-13-0050

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