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Summary of Decisions - July 30 – August 3, 2012

August 3, 2012 - 9:07am


Personnel Security (10 CFR Part 710)

On July 31, 2012, an OHA Hearing Officer issued a decision in which he determined that anindividual’s DOE security clearance should be restored. The Individual had exhibited a patternof failing to appropriately manage his financial affairs evidenced by his failure to honor hisdebts. The Individual was able to show that his financial problems were limited to a short periodduring the final years of a previous marriage. Nonetheless, the individual was not able to fullyresolve his financial issues because he had retained a dilatory Bankruptcy attorney. Theindividual had otherwise put his financial affairs in order, having incurred no further delinquentdebt after separating from his previous spouse, and therefore established a sufficient pattern ofresponsible financial conduct to mitigate his financial irresponsibility. For these reasons, theHearing Officer concluded that the Individual had mitigated these security concerns at thehearing. OHA Case No. PSH-12-0042, (Steven L. Fine, H.O.)

On August 1, 2012, a Hearing Officer issued a Decision concluding that the DOE should notrestore an individual’s access authorization. The individual had his wages garnished, his truckrepossessed, and his home foreclosed upon. He also owed more than $18,000 on 12 collectionaccounts, and had eight accounts in the amount of $65,000 charged-off by his creditors. Hisdebts stemmed from a combination of medical-related unemployment and poor financialmanagement. Also, when the individual completed several security forms, he had failed toreport a number of traffic tickets and a criminal charge. The Hearing Officer found that theindividual had not resolved the security concerns. He had worked with an attorney to file forbankruptcy, which included drafting a budget and taking courses to learn how to better managehis finances. The bankruptcy is not yet final, however, and the individual has not had time toshow a period of financial responsibility. Regarding the omissions, the individual showed thathe had lost track of his traffic tickets and had not tried to hide them. He was unable to show,however, that he had similarly overlooked his criminal charge. OHA Case No. PSH-12-0035,(David M. Petrush, H.O.).

On August 1, 2012 a Hearing Officer issued a Decision in which he determined that anindividual’s access authorization should not be restored. In reaching this determination, theHearing Officer found that the individual had not resolved security concerns under Criterion Lassociated with his two bankruptcies, his failure to file federal income tax returns for the years2007 through 2010, and his excessive indebtedness. At the hearing, the Individual presentedevidence that he had recently employed two firms to help resolve his tax and financial problemsand that he has filed tax returns for the years in question. He also presented testimony from threeco-workers testifying to his excellent character and lack of security incidents at work. Further,the Individual presented testimony providing reasons why he had not filed returns. Nonetheless,the Hearing Officer found that none of the Individual’s reasons provided sufficient mitigation toexcuse his failure to properly supervise his finances. Given this finding, the Hearing Officerdetermined that the individual’s security clearance should not be restored. OHA Case No. PSH-12-0027, (Richard Cronin, H.O.).

On August 3, 2012, an OHA Hearing Officer issued a Decision in which she concluded that theDOE should not restore an individual’s suspended access authorization. A DOE OperationsOffice referred the individual’s request for a security clearance to administrative review under10 CFR Part 710, citing the individual’s past outstanding delinquent debts and her pattern offinancial responsibility, as well as her omission of a judgment secured against her by a creditoron a security questionnaire, as security concerns under 10 C.F.R. Part 710. The individualrequested a hearing before an OHA Hearing Officer. After conducting a hearing and evaluatingthe documentary and testimonial evidence, the Hearing Officer concluded that the Individualmitigated the security concerns raised by her omission of a judgment on a security questionnairebecause her omission was not a deliberate falsification of the questionnaire. However, theHearing Officer determined that the individual had not resolved the security concerns raised byher pattern of financial irresponsibility. The Hearing Officer found that the individual had begunto address her outstanding debts, but her financial situation remained unstable. Accordingly, theHearing Officer recommended that the individual’s suspended security clearance should not berestored at this time. OHA Case No. PSH-12-0053, (Diane DeMoura, H.O.)

Freedom of Information Act and Privacy Act Appeals

On July 30, 2012, the Office of Hearings and Appeals (OHA) issued a decision granting anappeal (Appeal) from a Privacy Act determination issued by the Office of Information Resources(IR). The appellant filed a Privacy Act request for his personnel security file. In itsdetermination, IR withheld portions of five documents under Privacy Act Exemption (k)(1) andFreedom of Information Act (FOIA) Exemptions 1, 3, and 6. Due to the classified nature of theinformation withheld under Privacy Act Exemption (k)(1) and FOIA Exemption 1, the Appealwas bifurcated and the portion of the Appeal that challenged those withholdings was assignedCase No. FIC-12-0001, and will be addressed in a future decision. Consequently, OHAaddressed in this decision only the information that IR withheld under FOIA Exemptions 3 and6. Although it invoked FOIA Exemptions 3 and 6 to withhold portions of the five documents, IRdid not invoke any Privacy Act exemptions to withhold the same information.Without reaching whether FOIA Exemptions 3 and 6 were properly applied,OHA determined that the matter must be remanded to IR for a new determination, because anywithholdings under the Privacy Act must be justified under both the Privacy Act and the FOIA.OHA Case No. FIA-12-0038, (William M. Schwartz, 287-1522). On July 30, 2012, the Office ofHearings and Appeals (OHA) Director denied a Freedom of Information Act (FOIA) Appealfiled by the National Security Archive (Appellant) of a final determination issued by the Officeof Information Resources (OIR). The Appellant documentsrelated to the “First Meeting of the Parties to the Montreal Protocol on Substances that Depletethe Ozone Layer” held in Helsinki, Finland on May 2-5, 1989. OIR forwarded the request to theOffice of Policy and International Affairs (OPIA) and the Executive Secretariat (ES) for a searchof their records. ES responded that the records were not within their purview and OIR sent aletter to the Appellant informing them of that fact. OPIA conducted a search of its records anddid not locate responsive documents. In its Appeal, NSA challenged the search for responsiverecords, including whether OPIA searched for responsive records at the National Records Center.OHA contacted OPIA to ascertain the scope of its search for responsive documents; however,OPIA provided no response. Based on that information, OHA granted the Appeal in part andremanded to OIR so that the request may be forwarded to OPIA for an explanation of its searchfor responsive records and a determination whether responsive documents exist. OHA Case No.FIA-12-0039,

On July 31, 2012, the Office of Hearings and Appeals issued a decision regarding an Appealfiled by the National Security Archive from a determination issued by the National NuclearSecurity Administration (NNSA) of the Department of Energy (DOE) under the Freedom ofInformation Act. The National Security Archive had requested documents concerning aninteragency training exercise entitled “Mighty Derringer” that took place in December 1996. Inan April 21, 2011, determination, NNSA withheld portions of a responsive document on thebasis of Exemptions 1 and 3. The appellant restricted his appeal to withholdings made pursuantto Exemption 1. Because Exemption 1 protects from disclosure information that is properlyclassified under criteria established in an Executive Order, we referred this Appeal to the Officeof Health, Safety and Security, the office which is responsible for reviewing the classification ofinformation. That Office determined that some of the information previously withheld underExemption 1 was properly classified as National Security Information, and therefore should bewithheld from public disclosure under Exemption 1 of the FOIA. It also determined that some ofthe information initially withheld did not qualify for protection under Exemption 1.Accordingly, we granted the Appeal in part and denied it in part. Case No. TFC-0010..