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Summary of Decisions - September 10 – September 14, 2012

September 14, 2012 - 1:39pm

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Freedom of Information Act

On September 10, 2012, OHA issued a decision denying a Freedom of Information Act (FOIA) appeal filed by the Center for Contract Compliance (Appellant) of a final determination issued by the Loan Guaranty Program Office (LGPO). The Appellant requested copies of the certified payroll records from a contractor, Soil Tech, on the First Solar, Inc., (Desert Sunlight Solar Generation) Project in Riverside, California. LGPO released the records, but withheld information under Exemptions 4 and 6 of the FOIA. Challenging only the Exemption 6 withholdings, the Appellant claimed that the names and addresses of employees should not have been withheld. Exemption 6 shields from disclosure personnel the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. The court in Painting and Drywall Work Preservation, Inc., v. HUD, ruled specifically on the issued raised in this case and held that the possible public interest that arises because the employees are employed under the Davis-Bason Act does not outweigh their privacy interest in their names and addresses. Attempting to distinguish this case from Painting and Drywall Work Preservation, the Appellant claimed that the court found that there were other methods to contact the employees that are not available in this case. We disagree with that argument. The court merely noted the availability of face-to-face meetings at work as one possible alternative to obtaining the names and addresses of employees through a FOIA request. OHA Case No. FIA-12-0047

Personnel Security (10 CFR Part 710)

On September 12, 2012, a Hearing Officer issued a decision in which he determined that an individual’s access authorization should not be restored. In reaching this determination, the Hearing Officer found that the individual had not resolved security concerns associated with a recent Driving Under the Influence arrest and a determination from a DOE psychologist that the Individual suffered from Alcohol-Related Disorder, Not Otherwise Specified. Additionally, while finding that the individual had resolved concerns relating to inaccurate answers provided in a background investigation, a Questionnaire for National Security Positions, and a personnel security interview, the Hearing Officer found that the individual had not resolved concerns related to the individual’s alcohol disorder. At the hearing, the individual presented testimonial evidence that she had not consumed alcohol in the nine months prior to the hearing and that she had not meant to deceive the local security office with her inaccurate answers. She also presented testimony from her spouse confirming the length of her abstinence. However, the DOE psychologist, after listening to the testimony at the hearing, found that the individual, in the absence of participation in a treatment or educational program, had not demonstrated a sufficient period of abstinence from alcohol to provide a reasonable assurance that she was rehabilitated from her alcohol disorder. OHA Case No. PSH-12-0066 (Richard Cronin 202-287-1589) On September 13, 2012, an OHA Hearing Officer issued a decision in which she concluded that an individual’s security clearance should not be granted. The Local Security Office (LSO) conducted a Personnel Security Interview (PSI) of the individual to address concerns about the individual’s falsifications and financial irresponsibility. After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had not presented sufficient evidence to mitigate these security concerns. Specifically, she found that despite the individual’s acknowledgment of his financially irresponsible behavior and his assurances, his recent good-faith efforts to resolve his debts have not yet withstood the test of time. Given, the individual’s pattern of financially irresponsible behavior, the Hearing Officer was not convinced that the chances of a return to his previous behavior are acceptably low. With respect to the individual’s falsifications, the Hearing Officer did not find the testimonial evidence to be credible. She was not convinced that the individual did not “deliberately” omit information from his security forms. Case No. PSH-12-0059 (Kimberly Jenkins-Chapman, H.O.)

On September 14, 2012, an OHA Hearing Officer issued a decision in which he concluded that an individual’s security clearance should be restored. A Local Security Office suspended the individual’s security clearance due to security concerns about the individual’s unauthorized use of technology systems, noncompliance with rules pertaining to such systems, and inconsistent statements regarding such incidents. After conducting a hearing and evaluating the documentary and testimonial evidence, the Hearing Officer found that the individual had presented sufficient evidence to resolve these security concerns. Specifically, he found that the individual had obtained treatment for any underlying condition that led to some of those incidents, and secured training and instituted controls to significantly reduce the likelihood that such incidents will recur. OHA Case No. PSH-12-0060 (William M. Schwartz, H.O.)  

Contractor Employee Protection (10 CFR Part 708)

On September 12, 2012, an OHA Hearing Officer issued a Protective Order in a case involving a Complaint of Retaliation filed by John Robertson against KQ Services under the DOE’s Contractor Employee Protection Program and its governing regulations set forth at 10 CFR Part 708. During the process of pre-hearing discovery in the matter, counsel for KQ Services requested that the DOE Savannah River Operations Office (DOE-SR) Employee Concerns Program produce certain documents in its possession. On September 12, 2012, DOE-SR submitted a Stipulated Protective Order to which DOE-SR, Mr. Robertson, and counsel for KQ Services agreed to be bound. The Order states, inter alia, that the names or any other identifying information of certain individuals named in the documents shall remain confidential. OHA Case No. WBJ-12-0001

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