FOIA Appeal (FIA)

Freedom of Information Act (FOIA) Appeal; Appeal Denied; Exemption 5
On March 2, 2021, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) Appeal filed by Peter Fairley (Appellant) from a final determination issued by the Department of Energy's Office of Public Information (OPI). On Appeal, the Appellant alleged that OPI had not properly applied Exemption 5 of the FOIA and had not properly assessed the foreseeable harm possible if the withheld information was released. After review, OHA determined that DOE had properly justified its use of Exemption 5. Accordingly, the Appeal was denied. OHA Case No. FIA-21-0005.

Personnel Security Hearing (PSH)

Personnel Security; Access Authorization Not Restored; Guideline E (Personal Conduct),  Guideline G (Alcohol Consumption), and Guideline I (Psychological Conditions) 
On March 2, 2021, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. Law enforcement officers came to the Individual's home three times from 2016 to 2017 - once for a domestic dispute between the Individual and his wife and twice after the Individual sent messages indicating that he was contemplating suicide. The Individual consumed alcohol prior to each incident. In a June 2018 interview with an Office of Personnel Management (OPM) investigator and in response to a January 2019 letter of interrogatory from the local security office (LSO), the Individual said that he had not consumed alcohol since September 2017. However, during a clinical interview with a DOE-contracted Psychologist (DOE Psychologist) the Individual reported that he had consumed alcohol regularly since 2017. Laboratory testing requested by the DOE Psychologist provided evidence that the Individual consumed alcohol heavily within several weeks of the clinical interview. The DOE Psychologist issued a report in which she concluded that the Individual met the diagnostic criteria for Alcohol Use Disorder (AUD), Moderate, under the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition ( DSM-5). The DOE Psychologist recommended that the Individual demonstrate rehabilitation or reformation by abstaining from alcohol for twelve months, participating in an intensive outpatient program for four weeks followed by aftercare meetings, participating in Alcoholics Anonymous (AA) or a comparable program, and undergoing alcohol testing over his period of abstinence from alcohol. The DOE Psychologist also opined that the Individual's dishonesty, suicidal statements, and derogatory behavior constituted an unspecified psychological condition which could impair his judgment, stability, reliability, and trustworthiness. The DOE Psychologist recommended that the Individual consult with a psychological professional for diagnosis and treatment. Prior to the hearing, the Individual underwent alcohol testing which provided evidence that he recently consumed alcohol on a regular, heavy basis. The Individual testified at the hearing that he had not intended to deceive the LSO or the OPM investigator, but had miscommunicated that he intended to abstain from alcohol. The Individual asserted that he consumed alcohol in moderation, and had not pursued treatment for AUD. The Individual also expressed that his personal wellness had improved since divorcing his wife and pursuing life coaching, and that he had not sought psychological treatment. A second DOE Psychologist opined that he endorsed the diagnosis of the Individual with AUD and that the Individual's prognosis was poor in light of his persistent misrepresentations about the volume of his alcohol consumption and lack of treatment. The second DOE Psychologist also opined that the Individual's suicide threats were indicative of a serious psychological condition requiring diagnosis and treatment. As the Individual's explanation for the inconsistencies in his self-reported drinking habits was not credible, and the Individual continued to represent that he was drinking in moderation despite laboratory evidence to the contrary, the Administrative Judge concluded that the Individual had not resolved the security concerns under Guideline E. Additionally, in light of the Individual's persistent alcohol consumption, lack of treatment, and the poor prognosis provided by the second DOE Psychologist, the Administrative Judge found that the Individual had not resolved the security concerns under Guideline G. Finally, the Administrative Judge concluded that the Individual had not sufficiently addressed the causes of his messages concerning suicide to resolve the security concerns under Guideline I. Therefore, the Administrative Judge concluded that the Individual's access authorization should not be restored. OHA Case No. PSH-21-0008 (Kimberly Jenkins-Chapman).