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Summary of Decisions - November 18, 2013 – November 22, 2013

November 22, 2013 - 11:00am

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Freedom of Information Act Appeals

On November 20, 2013, OHA issued a decision denying in part and dismissing in part a Freedom of Information Act (FOIA) Appeals filed by Dinsmore & Shohl, L.L.P. (D&S).  The D&S Appeal related to a FOIA request filed with the National Nuclear Security Administration (NNSA) for documents pertaining to the Waste Solidification Building Project at DOE’s Savannah River Nuclear Site in Aiken, South Carolina. In response to the FOIA request, NNSA identified numerous documents, releasing all but two of them in their entirety to D&S.  NNSA withheld the two remaining documents in their entirety pursuant to FOIA Exemptions 4 and 5, respectively.  In its Appeal, D&S challenged the adequacy of NNSA’s search for responsive records, as well as the applicability of the cited FOIA exemptions to the two withheld documents.  On Appeal, OHA determined that NNSA’s search was reasonably calculated to reveal records responsive to the FOIA request and, therefore, was adequate.  Accordingly, OHA denied the portion of the Appeal pertaining to the adequacy of the search.  During the pendency of the Appeal, NNSA released the two previously-withheld documents, rendering moot the issue of the applicability of Exemptions 4 and 5 to those documents.  Therefore, OHA dismissed the portion of the Appeal pertaining to NNSA’s previous withholding of the two documents pursuant to the two cited exemptions.  OHA Case No. FIA-13-0062

On November 21, 2013, OHA dismissed a FOIA Appeal filed by Christina Nicholas (the Appellant).  The Appellant sought to appeal a decision regarding a claim under the Energy Employees Occupational Illness Compensation Program (EEOICP) and she sought another search for the requested document by OHA.   OHA dismissed the Appeal on the grounds that OHA lacked jurisdiction over EEOICP claims and did conduct its own searches for FOIA Requests that did not result in a favorable determination.  Moreover, OHA was notified that the Department of Labor, with which the original FOIA Request was filed, located a responsive document that it requested the DOE to review and determine whether or not to release it to the Appellant in full or in part.  Currently, the DOE is reviewing that document and deciding whether or not to release it to the Appellant. OHA Case No. FIA-13-0072

“Whistleblower” Complaint (10 CFR Part 708)

On November 19, 2013, an OHA Hearing Officer issued a Supplemental Decision involving a complaint filed by Denise Hunter against The Whitestone Group (Whitestone) under the DOE’s Contractor Employee Protection Program and its governing regulations set forth at 10 CFR Part 708.  In an Initial Agency Decision, the Hearing Officer determined that Ms. Hunter had prevailed in her Part 708 complaint, and ordered the parties to submit calculations of relief.  After considering the submissions of both parties and their responses to additional questions posed by the Hearing Officer, he determined that Ms. Hunter was entitled to a total of $173,490 in relief, including back pay and benefits, interest on back pay, attorney’s fees, and reimbursement of costs and expenses incurred in pursuing her remedies under Part 708.  OHA Case No. WBX-12-0004

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