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Summary of Decisions - June 10, 2013 - June 14, 2013

June 14, 2013 - 2:49pm

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Personnel Security Hearing (10 CFR Part 710)

On June 11, 2013, an OHA Hearing Officer issued a decision in which he concluded that an individual’s authorization access should be restored.  A Local Security Office suspended the individual’s security clearance following the individual contemplating suicide and, subsequently, being diagnosed by a DOE consulting psychologist as meeting the criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic. The DOE psychologist had recommended, inter alia, that the individual undergo at least six months of counseling.  As of the date of the hearing, the individual had fully engaged in the counseling process for nine months and offered credible testimony of the benefits of that counseling from his counselor, family members and himself.  The DOE psychologist opined at the hearing that the individual no longer met the diagnostic criteria for Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic, or other illness that causes, or may cause, a significant defect in his judgment or reliability.  OHA Case No. PSH-13-0019 (Wade M. Boswell, H.O.)

On June 10, 2013, an OHA Hearing Officer issued a decision in which he determined that an individual’s DOE access authorization should not be restored.  The individual had been criminally charged with sexual misconduct involving two minors.  A DOE psychologist found that the individual suffers from Personality Disorder Not Otherwise Specified (PDNOS).  The Hearing Officer found that the individual had not shown that the allegations concerning sexual misconduct with minors were unfounded.  Moreover, three mental health professionals agreed that the question of whether the individual suffers from PDNOS turned on the question of whether the individual had engaged in sexual misconduct with minors.  The individual did not show that he was receiving proper treatment for his PDNOS.  Based upon the record, the Hearing Officer concluded that the security concerns remained unresolved.  OHA Case No. PSH-12-0144 (Steven L. Fine, H.O.)

On June 10, 2013, an OHA Hearing Officer issued a decision in which he determined that the DOE should not restore an individual’s access authorization.  As security concerns a Local Security Office cited:  (1) the individual’s admission that his wages were being garnished in the amount of $150 weekly to satisfy a federal income tax debt of approximately $11,000, and that he owed approximately $3,600 in back state income taxes; (2) his failure to file a 2010 state income tax return; (3) collection accounts totaling $15,443, a charged-off account of $1,242, and a 60-day delinquency in payments on a vehicle; (4) his failure to resolve past due accounts despite his intentions expressed in 2010; and (5) his statement that that he did not feel that he was living within his means and that he was overextended financially.  The individual presented evidence that he had made arrangements to pay his tax liability and other outstanding debt.  However, the Hearing Officer, noting that the DOE had previously put the individual on notice that it was concerned with his outstanding debts and tax compliance, was not convinced that the individual would follow through on his commitment to pay his outstanding debt.  The Hearing Officer found that the individual had not yet fully established a pattern of financial responsibility, and that there were reasons to doubt that he would be able to sustain such a pattern in the long term.  OHA Case No. PSH-13-0031 (Steven J. Goering, H.O.)

On June 13, 2013, 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 regarding her finances. Specifically, the Hearing Officer found that the individual’s financial problems resulted primarily from her poor financial decisions, that she had not demonstrated a sufficient pattern of financially responsible behavior, and that the progress that she had made in resolving her indebtedness had been due in part to the assistance of her ex-husband, which was not guaranteed to continue. OHA Case No. PSH-13-0034 (Robert B. Palmer, H.O.)

Freedom of Information Act (FOIA) Appeals

On June 10, 2013, OHA granted FOIA Appeal filed by Torres Consulting & Law Group, LLC (Appellant), of a determination issued by the DOE Loan Guarantee Program Office (LGPO).  In its request, the Appellant asked for information relating to the Abengoa Mohave construction project.  LGPO released documents to the Appellant but withheld information under Exemptions 4 and 6 of the FOIA.  The Appellant claimed that LGPO improperly withheld the wage rates under Exemption 4.  OHA disagreed, stating that release of the financial information could cause the contractors substantial competitive harm by giving their competitors an undue advantage in bidding on future contracts.  The Appellant also claimed that LGPO should not have relied on Exemption 6 to withhold the names, addresses, and license numbers of the contractors.  OHA agreed but noted that the information was properly withheld under Exemption 4.  The Appellant also argued that once the contractor employees’ names, addresses, and other identifying information were withheld, those employees no longer had a privacy interest in their deduction, contribution, and payment information.  We agreed and remanded the matter for a new determination either releasing the information or justifying its withholding under a different FOIA provision.  The Appellant also claimed that LGPO could not use Exemption 6 to withhold the hours worked, once other identifying information had been withheld.  While OHA agreed with this assessment, we noted that LGPO also used Exemption 4 to properly withhold the information.  OHA Case No. FIA-13-0027

On June 10, 2013 OHA issued a decision denying a FOIA appeal (Appeal) from a determination issued by the DOE’s Office of Information Resources (OIR) and the Chief Financial Officer (CF), where the OIR and CF withheld the names of employees in official time sheets pursuant to FOIA Exemption 6. The Appellant, Washington Examiner, contested the application of Exemption 6 to the withheld information, claiming that there was no privacy interest in the names and that there is a public interest in the information.  The OHA reviewed the redacted information and determined that there was a significant privacy interest in that information and that it outweighed any potential public interest in its release.  Therefore, the OHA denied the Appeal. OHA Case No. FIA-13-0033

On June 12, 2013, OHA issued a decision remanding a FOIA appeal (Appeal) from a determination issued by the DOE’s Idaho Operations Office (IOO). The Appellant, Post Register, contested the IOO’s adequacy of search for responsive documents and determination that most of the requested documents were not agency records.  The OHA concluded that the IOO did not demonstrate that the requested records – pertaining to “vulnerable non-safety measures” – were contractor-owned.  The IOO’s contract, the DOE Energy Acquisition Regulation (“DEAR”), did not contain a clause identifying such records as contractor-owned.  Thus, OHA relied on the language in the DEAR stating that records not identified as contractor-owned are the property of the government.  Therefore, the OHA remanded the Appeal. OHA Case No. FIA-13-0029

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