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Summary of Decisions - June 17, 2013 - June 21, 2013

June 21, 2013 - 8:34am

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Personnel Security Hearing (10 CFR Part 710)

On June 20, 2013, an OHA Hearing Officer issued a decision in which he concluded that an individual’s security clearance should not be restored.  During the individual’s periodic re-investigation for security clearance eligibility, the individual reported higher alcohol consumption than he had during the earlier Personnel Security Interview (PSI) and a psychological investigation.  The Local Security Office (LSO) investigated this discrepant reporting, and the individual acknowledged that he had been intentionally dishonest about his alcohol consumption because he was afraid he would lose his job.  Based on the higher reported alcohol consumption, a DOE psychologist diagnosed the individual as suffering from Alcohol Dependence and recommended the individual abstain from alcohol for ten months and participate in an intensive outpatient alcohol treatment program to evidence adequate rehabilitation and reformation.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented evidence to mitigate the security concerns. The individual was not abstaining from alcohol – he had had three drinks the evening before the hearing – and had not participated in any treatment programs.  In addition, at the hearing, he acknowledged that he had intentionally lied about his alcohol consumption during the 2011 PSI and psychological evaluation because he feared he would lose his job if he told the truth.  OHA Case No. PSH-13-0016 (Wade M. Boswell, H.O.)

On June 18, 2018, an OHA Hearing Officer issued a decision in which he determined that an individual’s DOE security clearance should not be restored.  The individual had exhibited a pattern of failing to appropriately manage her financial affairs evidenced by her failure to honor her debts and pay her taxes on time.  The individual was not able to fully resolve her financial issues because she had not established a sufficient pattern of responsible financial conduct to mitigate her past financial irresponsibility and had not shown that she understood the causes of her financial distress.  For these reasons, the Hearing Officer concluded that the individual had not mitigated these security concerns at the hearing.  OHA Case No. PSH-13-0035 (Steven L. Fine, H.O.)

Freedom of Information Act (FOIA) Appeals

On June 18, 2013, OHA issued a decision remanding an appeal (Appeal) from a FOIA determination issued by the DOE’s Richland Operations Office (ROO). The Appellant, Hanford Atomic Metals Trade Council, contested the ROO’s invocation of Exemption 5 to the redactions it made in the released documents. The released documents contained communications regarding the DOE’s contractors’ labor negotiations with the Appellant, a union.  The OHA reviewed the withheld information and the ROO’s justifications for its redactions, and determined that the documents were either not inter- or intra-agency documents or that they did not involve a deliberative process. Therefore, the OHA remanded the Appeal with instructions to issue a new determination. OHA Case No. FIA-13-0030

On June 19, 2013, OHA issued a decision denying an appeal (Appeal) from a determination issued by the Office of Inspector General (OIG).  The Appellant filed a request under the FOIA and the Privacy Act seeking, inter alia, information about complaints filed against Poli A. Marmolejos, OHA Director, and any related internal investigations.  In its determination letter, the OIG informed the Appellant that it neither confirmed nor denied the existence of any such records described in the request (a so-called Glomar response).  Citing FOIA Exemption 7(C), the determination letter went on to state that, lacking an individual’s consent, an official acknowledgment of an investigation, or an overriding public interest, even to acknowledge the existence of such records pertaining to an individual could reasonably be expected to constitute an unwarranted invasion of personal privacy.  The Appellant challenged the OIG’s response.  After reviewing the subject matter of the request, the method by which the request was processed, and the OIG justification offered in the determination letter, the OHA found that the OIG appropriately invoked its Glomar response; any other response to the request could reasonably be expected to constitute a clearly unwarranted invasion of personal privacy under Exemption 7(C).  Accordingly, the Appeal was denied.  OHA Case No. FIA-13-0035

On June 19, 2013, OHA issued a decision granting in part and denying in part an appeal (Appeal) from a FOIA determination issued by the Office of Information Resources (OIR).  The Appellant appealed the OIR’s decision to withhold portions of released documents pursuant to Exemption 5 and contested the adequacy of its search.  The OIR stated that portions of the documents were withheld pursuant to the deliberative process privilege of Exemption 5. The OHA, acting through the Chief Information Officer pursuant to a delegation from the Director, OHA, reviewed the withheld information and determined that the OIR properly invoked the deliberative process privilege as the nature of the withheld information was predecisional and contained signatures/initials of concurring DOE employees which represented the individuals’ personal opinions pertaining to the draft text of certain OHA case documents.  The OIR stated that one office conducted a search for responsive documents:  the Office of Hearings and Appeals.  In response to inquiries, the official who conducted the search discovered three additional documents that may be responsive to the original FOIA request.  Therefore, the OHA remanded the case to the OIR for a new determination on these three additional documents only.  OHA Case No. FIA-13-0031

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