Personnel Security (10 CFR Part 710)

On November 26, 2014, an OHA Administrative Judge issued a decision in which he determined that an individual’s request for a DOE access authorization should not be granted.  A local security office alleged that the individual (1) deliberately provided false or misleading information on a Questionnaire for National Security Positions (QNSP), (2) provided false or misleading information on a Pre-Employment/Pre-Clearance Suitability Investigation form (the Pre-Employment Form) submitted to his employer, (3) had exhibited an “inability to work with women”, (4) had exhibited an inability to follow rules or regulations, and (5) had a history which demonstrated the presence of impaired judgment and reliability.  At the hearing, the individual disputed each of these allegations.  The Administrative Judge found that individual had sufficiently mitigated the security concerns arising from his alleged inability to work with women and his alleged inability to follow rules or regulations.  The Administrative Judge found, however, that the individual had deliberately provided false information on a QNSP and on the Pre-Employment Form, and had exhibited impaired judgment and reliability.  The Administrative Judge concluded that the associated security concerns had not been resolved.   OHA Case No. PSH-14-0082 (Steven L. Fine)

Freedom of Information Act (FOIA) Appeal

On November 24, 2014, OHA issued a decision denying appeals filed by Tim Hadley (the Appellant) of two FOIA determinations that the DOE’s Office of Headquarters Procurement Services (Procurement) issued to him in response to two related requests for contracts, task orders, agreements, etc., with “no deliverables.”  In October 2014, Procurement issued determinations indicating that it did not have records responsive to the Appellant’s requests.  On appeal, in response to OHA’s inquiry, Procurement informed us that, after receiving Appellant’s FOIA requests, it consulted with individuals with the most knowledge of the subject matter of the requests and, based on the subject matter experts’ responses, concluded that the requested records do not exist.  Because the FOIA pertains only to records in an agency’s possession at the time of a request, and does not require an agency to create records in response to a FOIA request, OHA denied the appeal.  OHA Case Nos. FIA-14-0072 and FIA-14-0073

On November 24, 2014, denied a FOIA appeal filed by Joseph Ercole (the Appellant) a determination that the DOE Office of Science Chicago Office (CH) issued to him in response to a request for documents that he filed regarding a job vacancy announcement for which he applied and was not selected.  In September 2014, CH issued a determination in which it identified and released various responsive documents, withholding portions of some documents pursuant to FOIA Exemption 6.  The Appellant appealed CH’s determination with respect to a portion of his FOIA request for which CH indicated that it did not locate any responsive documents. On appeal, in response to OHA’s inquiry, informed us that its human resources office concluded that the requested records at issue do not exist because the type of document that the Appellant requested was not applicable to the job vacancy announcement at issue.  Given CH’s statement regarding the non-existence of the records that the Appellant sought, and because the FOIA pertains only to records in an agency’s possession at the time of a request, and does not require an agency to create records in response to a FOIA request, OHA denied the appeal.  OHA Case Nos. FIA-14-0078

On November 26, 2014, OHA denied a FOIA appeal filed by Alex Wellerstein of a determination issued by the Office of Resource Management (RM) of the Office of Environment, Health, Safety, and Security.  In the appeal, the Appellant challenged RM’s search for responsive documents, stating that the released index reflects fewer documents than the decades-old index that the Republic of the Marshall Islands Embassy had and 2,942 fewer documents than the actual final index for the database that was taken offline in 2013.  OHA contacted RM, which stated that it located a 1995 version of the database that was converted to a pdf file.  A version of the index was given to the Republic of the Marshall Islands in 2005, but RM could not locate a copy of that index.  Further, there was no fixed index for the most recent version, the one that was taken offline in 2013, because of the dynamic nature of the database.  Therefore, OHA found that RM conducted an adequate search for the requested index and denied the appeal.  OHA Case No. FIA-14-0071