Personnel Security Hearing (10 CFR Part 710)

On October 27, 2015, an OHA Administrative Judge issued a decision in which he concluded that an individual’s security clearance should not be restored.  The individual was arrested for driving while intoxicated after she had combined alcohol consumption with prescription medication (including two muscle relaxers). A DOE consulting psychologist evaluated the individual and diagnosed her with Alcohol Abuse, an illness which causes, or may cause, a significant defect in the individual’s judgment or reliability, and recommended six months of abstinence and counseling to evidence adequate reformation and rehabilitation.  The individual’s psychologist testified that the individual suffered from Generalized Anxiety Disorder, but that he could not disagree that she suffered from atypical Alcohol Abuse. As of the date of the hearing, the individual had been abstinent from alcohol and in treatment for only one month.  The DOE psychologist testified as to the individual’s history of combining alcohol and medications and opined that one month of abstinence and treatment was insufficient to demonstrate her ability to control her consumption of alcohol.  Under these circumstances, the Administrative Judge found that the individual had not resolved the security concerns arising under Criteria H and J.  OHA Case No. PSH-15-0048 (Wade M. Boswell)

On October 26, 2015, an OHA Administrative Judge issued a decision in which he concluded that an individual’s security clearance should not be restored.  During a security reinvestigation, the individual acknowledged accrual of debt and financial delinquencies due to gambling. The local security office (LSO) subsequently referred the individual to a DOE consulting psychologist who diagnosed the individual with Gambling Disorder, Severe (Persistent, In Early Remission), an illnesses that causes, or may cause a significant defect in the individual’s judgment or reliability. Following the psychological evaluation, the individual experienced several gambling relapses. By the date of the hearing the individual had been abstinent from gambling for 3 months and had completed both a 6-week residential treatment program and an Intensive Outpatient Program for gambling; however, the DOE psychologist testified that her diagnosis remained unchanged in the absence of 12 months of gambling abstinence. The LSO also alleged security concerns related to the individual’s gambling, including financial delinquencies and for omission of mental health counseling on her QNSPs. With respect to finances, the individual demonstrated at the hearing that she was current on all debt and had begun prepaying her debt; however, the Administrative Judge held that since her financial delinquencies arose from her gambling, she could not mitigate those concerns until she resolved the Criterion H concerns arising from her Gambling Disorder. With respect to her non-disclosure of mental health counseling, the Administrative Judge held that the individual reasonably believed that such counseling was family, marital and grief counseling not required to be reported. Under these circumstances, the Administrative Judge found that the individual had resolved the security concerns arising from her non-disclosure of mental health counseling, but not the security concerns arising under Criterion L for gambling-related financial delinquencies or under Criterion H for her Gambling Disorder.  OHA Case No. PSH-15-0061 (Wade M. Boswell)

Freedom of Information Act (FOIA) Appeal

On October 29, 2015, OHA issued a decision denying a FOIA Appeal filed by Philip Zwiefelhofer (Appellant) from a determination issued to him by the National Nuclear Security Administration (NNSA). In the Appeal, the Appellant challenged the NNSA’s finding that any responsive records in the possession of Los Alamos National Security, LLC, the management and operating contractor for Los Alamos National Laboratory, would not be “agency records” subject to disclosure under the FOIA. OHA began its analysis by reviewing the adequacy of the search for responsive records at the NNSA’s Los Alamos Field Office, finding that the search was reasonably calculated to uncover responsive records. OHA then found that any responsive records held by LANS would not be agency records because those records had not been obtained by DOE and because they were defined by contract as records belonging to LANS. Therefore, OHA denied the Appeal.  OHA Case No. FIA-15-0054