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Summary of Decisions - November 26, 2012 – November 30, 2012

November 30, 2012 - 1:32pm


Personnel Security Hearing (10 CFR Part 710)

On November 26, 2012, an OHA Hearing Officer issued a decision in which he concluded that an individual’s security clearance should not be restored.  A Local Security Office suspended the individual’s security clearance because the individual demonstrated financial irresponsibility through his current delinquent debts and charged off debts, and his inability or unwillingness to live within his means.  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented sufficient evidence to resolve these security concerns.  Specifically, he found that the individual exhibited poor judgment in voluntarily accumulating over $49,000 in federal tax liability, and that his recent steps toward fiscal discipline were insufficient mitigation of his failure to manage his financial affairs, which raised questions about his reliability and trustworthiness, and consequently his ability to protect classified information.  OHA Case No. PSH-12-0107 (William M. Schwartz, H.O.)

On November 29, 2012, an OHA Hearing Officer issued a decision in which she concluded that an individual’s suspended DOE access authorization should be restored.  A DOE Operations Office suspended the individual’s security clearance and referred him to administrative review, citing a domestic incident which resulted in the individual’s arrest, and a subsequent opinion by a DOE consultant-psychologist that the individual met the diagnostic criteria for Post-Traumatic Stress Disorder (PTSD), Dysthymic Disorder, and Alcohol-Related Disorder Not Otherwise Specified (NOS).  After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer determined that the individual had mitigated the security concerns.  With respect to the alcohol-related security concerns, the Hearing Officer found that the individual took steps to address his Alcohol-Related Disorder, NOS by becoming an active participant in Alcoholics Anonymous (AA) – attending several meetings per week, working closely with a sponsor, and establishing relationships with fellow AA members. In addition, the individual, having committed to abstinence from alcohol, demonstrated nearly over eight months of abstinence from alcohol, and the individual’s treating psychologist, a forensic psychologist who evaluated the individual in order to provide testimony at the hearing (“the individual’s psychologist”), and the DOE consultant-psychologist opined that the individual was unlikely to relapse in the future. The Hearing Officer further concluded that the individual had mitigated the security concerns arising from his mental health conditions.  Specifically, the Hearing Officer was persuaded by the opinions of the three mental health experts that the individual had made substantial progress in his treatment, was unlikely to experience a recurrence, and no longer had a condition which caused or may cause a significant defect in his judgment or reliability. Consequently, the Hearing Officer determined that the DOE should restore his suspended security clearance.  OHA Case No. PSH-12-0080 (Diane DeMoura, H.O.)

On November 28, 2012, 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 charged with committing a sexual battery.  Although the individual had testified that a jury had acquitted him of this charge, the individual did not provide any documentation to corroborated this assertion.  More critically, the Hearing Officer determined that the individual had failed present sufficient evidence to resolve the concerns raised by his conduct which led to the charge of sexual battery.  The individual had also intentionally provided misleading information during a personnel security interview regarding the circumstances of his arrest.  The Hearing Officer therefore concluded that the individual had not mitigated the security concerns relating to his honesty, reliability and trustworthiness.  OHA Case No. PSH-12-0097 (Steven L. Fine, H.O.)

On November 29, 2012, 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 the individual’s omission of numerous debts in answer to questions regarding his finances on Questionnaire for National Security Positions (QNSP), information omitted from a March 2006 response by the individual to a Letter of Interrogatory (LOI), and the individual’s history of financial difficulties.  The Hearing Officer found the individual’s omission of information requested on his QNSP raised concerns that the individual had not resolved.  Specifically, the Hearing Officer did not find credible the individual’s claim that these omissions were not deliberate.  In addition, because of both the continued risk of the individual’s future financial instability, and the issues of judgment of reliability raised by his behavior related to finances, the Hearing Officer could not find that the individual has resolved the concerns in this case related to his handling of finances. OHA Case No. PSH-12-0095 (Steven J. Goering, H.O.)

Freedom of Information Act (FOIA) Appeal

On November 29, 2012, OHA issued a decision denying a FOIA appeal (Appeal) of determinations issued by the DOE’s Richland Operations Office (ROO) and Oak Ridge Office (ORO).  Martha J. McNeely, the Appellant, sought her medical and radiation exposure records from the period 1947 through 1953 while she was a child living at the now-DOE Hanford facility.  In her Request, the Appellant suggested several locations at ROO where responsive records might exist. Additionally, the Appellant, in her Request, suggested that responsive records might exist at ORO and consequently, ROO forwarded the Appellant’s Request to ORO. ROO issued a determination regarding her request in which it provided several documents. One of the documents, an X-Ray medical procedure list had the names of individuals, other than the Appellant’s, redacted pursuant to Exemption 6. ROO issued a determination letter to the Appellant in which it stated that it could not locate any records responsive to her Request.  The Appellant challenged the propriety of ROO’s Exemption 6 withholdings and argued that both Offices had failed to make an adequate search for documents. Upon obtaining details as to the search that ROO and ORO made, OHA determined that each office had made a search reasonably calculated to uncover responsive documents by using the identifying information provided by the Appellant and searching all facilities most likely to contain responsive documents. Consequently, the searches for responsive documents conducted by ROO and ORO were adequate under the FOIA. With regard to ROO’s Exemption 6 withholdings, OHA found that there was little public interest in the release of the individual’s names and that the individuals had a significant privacy interest regarding their medical records. Consequently, OHA found that release of the names contained in the X-Ray medical procedure list would constitute a clearly unwarranted invasion of personal privacy and that ROO properly withheld the individual names on the X-Ray medical procedure list pursuant to Exemption 6. OHA Case No. FIA-12-0071

On November 29, 2012, OHA issued a decision denying an appeal (Appeal) from a Freedom of Information Act (FOIA) determination issued by the Golden Field Office (GFO).  The Appellant appealed the GFO’s decision to withhold portions of the released documents pursuant to Exemption 4.  The Appellant claimed that Exemption 4 could not apply as the company whose records the Appellant was seeking, Abound Solar, commenced bankruptcy proceedings, and therefore, did not have any “commercial interests” to protect from the public.  However, OHA determined that despite the pending bankruptcy proceedings, Abound Solar may nonetheless suffer competitive harm from the released information, and therefore it may be entitled to protection under Exemption 4. OHA Case No. FIA-12-0068