Personnel Security (10 CFR Part 710)

On November 13, 2015, an OHA Administrative Judge issued a decision in which he determined that an individual’s DOE access authorization should be restored.  The individual was diagnosed by a DOE psychologist with “personality traits that are mental conditions which cause, or may cause, a significant defect in her judgment or reliability,” and had a history of criminal activity.  The Administrative Judge found that the individual had voluntarily entered a counseling or treatment program for a condition that is amenable to treatment, and is currently receiving counseling or treatment with a favorable prognosis by a duly qualified mental health professional.  Moreover, the Administrative found that the individual’s past emotional instability was, in part, a temporary condition (e.g., one caused by the deaths of the individual’s children), that has been resolved, and there has been no indication of a problem since January 2, 2015.  The Administrative Judge further found that the individual’s criminal activity was clearly symptomatic of her mental conditions.  Based upon the determination that the concerns raised by her mental conditions have been sufficiently resolved, the Administrative Judge found that the concerns about the individual’s judgment, reliability and trustworthiness raised by her criminal conduct were also resolved.  Therefore, the Administrative Judge found that the individual had resolved all of the security concerns raised by DOE.  OHA Case No. PSH-15-0065 (Steven L. Fine)

Freedom of Information Act (FOIA) Appeals

On November 12, 2015, OHA issued a decision denying a FOIA appeal (Appeal) from a determination issued by the DOE’s Office of Information Resources (OIR). In the Appeal, Mr. Valvo (Appellant), challenged an OIR determination to withhold portions of documents relating to certain communications between White House and DOE staff. OIR provided the Appellant with five E-mail chains but withheld portions of the documents pursuant to Exemptions 5 and 6. Upon review of the E-mail chains at issue, OHA found that the Exemption 5 withheld material consisted of recommendations and deliberations concerning proposed media events to highlight the American Recovery and Reinvestment Act of 2009. As such, the material was protected by Exemption 5’s deliberative process privilege and was properly withheld pursuant to Exemption 5. As for the material withheld pursuant to Exemption 6, Executive Office of the President (EOP) E-mail addresses and two biographies of private sector employees, OHA agreed with OIR’s assessment that the EOP and private sector employees had privacy interests that would be affected by release of the information. Further, OHA also agreed with OIR’s determination that release of the information would not further the public interest by providing the public with information regarding the operations and activities of the Government. After weighing these interests, OHA found that release of the Exemption 6 material would constitute a clearly unwarranted invasion of personal privacy. Thus, OHA found that OIR properly applied Exemption 6 to the E-mail chains provided to the Appellant. In sum, because OHA found that OIR properly withheld the material in the E-mail chains pursuant to Exemptions 5 and 6, the Appeal was denied.  OHA Case No. FIA-15-0060

On November 10, 2015, OHA granted in part and denied in part a FOIA and Privacy Act Appeal filed by Bradley P. Jones from a determination issued to him by the DOE Office of the Inspector General (OIG). In the Appeal, the Appellant challenged the use of Exemptions 5, 6, 7(A), 7(C), and 7(D) and the adequacy of the search for responsive documents. OHA found that although the use of the exemptions was appropriate, in some instances, OIG inadvertently redacted words that should not have been withheld. OHA remanded these documents to OIG to make this correction. OHA further found that the search conducted was not adequate and remanded the request to the DOE Office of the Chief Information Officer for further processing. OHA Case No. FIA-15-0058