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Summary of Decisions - December 2, 2013 – December 6, 2013

December 6, 2013 - 2:44pm

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Personnel Security Hearing (10 CFR Part 710)

On November 29, 2013, an OHA Hearing Officer issued a decision in which he concluded the DOE should not restore an individual’s access authorization.   A Local Security Office (LSO) cited concerns raised by the individual’s use of alcohol habitually to excess and an opinion by a DOE consultant psychologist (DOE psychologist) that the individual’s excessive use of alcohol was an illness or mental conditions that causes or may cause a significant defect in judgment and reliability.  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.  The individual had abstained from the use of alcohol since June 23, 2013, a little over four months prior to the hearing.  Given this relatively short period of abstinence, neither the DOE psychiatrist nor the individual’s treating psychologist could express a high degree of confidence in a favorable prognosis for the individual.  The Hearing Officer agreed with this assessment, and concluded that the individual had not resolved the security concerns raised in the case.  OHA Case No. PSH-13-0107 (Steven J. Goering)

On December 6, 2013, an OHA Hearing Officer issued a decision in which he concluded the DOE should not restore an individual’s access authorization.   A Local Security Office (LSO) cited concerns raised by the individual’s use of alcohol and an opinion by a DOE consultant psychiatrist (DOE psychiatrist) that the individual met criteria for a diagnosis of Alcohol Abuse under the Diagnostic and Statistical Manual of Mental Disorders (DSM), Fourth Edition, Text Revision, and Alcohol Use Disorder, Mild, under the DSM, Fifth Edition, and that both disorders are illnesses or mental conditions that cause or may cause a significant defect in judgment and reliability.  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.  The individual had abstained from the use of alcohol since May 25, 2013, a little over five months prior to the hearing.  Given this relatively short period of abstinence, neither the DOE psychiatrist nor the designated psychologist at the individual’s workplace could express a high degree of confidence in a favorable prognosis for the individual.  The Hearing Officer agreed with this assessment, and concluded that the individual had not resolved the security concerns raised in the case.  OHA Case No. PSH-13-0108 (Steven J. Goering)

Freedom of Information Act Appeal

On December 3, 2013, OHA issued a decision denying an appeal (Appeal) from a Freedom of Information Act (FOIA) determination issued by the DOE’s National Nuclear Security Administration (NNSA). The Appellant contested the adequacy of the search for documents responsive to its FOIA request. The OHA reviewed NNSA’s description of its search.  NNSA described the searches that were conducted at the Lawrence Livermore National Laboratory and the Nevada Site Office, and thus, OHA determined that NNSA conducted an adequate search for responsive documents.  Therefore, the OHA denied the Appeal. OHA Case No. FIA-13-0073

Julie A. Reddick filed two Appeals regarding a request that she made under the Freedom of Information Act (FOIA) to the National Nuclear Security Administration (NNSA) and the Environmental Management Consolidated Business Center (EMCBC) for two specific documents generated during an Employee Concerns investigation.  In a September 23, 2013, response, to Ms. Reddick, EMCBC determined that the relevant documents were under the jurisdiction of DOE Headquarters.  Therefore, EMCBC did not search records at its location; rather it transferred the request to DOE Headquarters for a search.  In a September 24, determination, NNSA notified Ms. Reddick that its search for records did not yield any responsive documents.  On September 26, 2013, Ms. Reddick filed an Appeal, designated as OHA Case No. FIA-13-0063, challenging the adequacy of the agency’s search.  During the pendency of Ms. Reddick’s first Appeal, NNSA withdrew its September 24, 2013, determination.  On October 22, 2013, following a new search, NNSA issued a second final determination in response to Ms. Reddick’s FOIA request.  In the second determination, NNSA noted that its search yielded the two requested documents.  NNSA released one in its entirety, and withheld one in its entirety pursuant to FOIA Exemption 5.  Ms. Reddick filed a second Appeal, designated OHA Case No. FIA-13-0067, challenging the applicability of Exemption 5 to the withheld document.     On appeal, OHA found that, because NNSA located the two requested documents in its second search, Ms. Reddick’s challenge to the adequacy of the agency’s search, raised in her first Appeal (OHA Case No. FIA-13-0063), was moot.  In addition, OHA determined that NNSA properly invoked the deliberative process privilege in withholding a document under FOIA Exemption 5.  Accordingly, OHA dismissed as moot Ms. Reddick’s first Appeal, OHA Case No. FIA-13-0063, and denied her second Appeal.  OHA Case No. FIA-13-0067

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