Personnel Security Hearing (10 CFR Part 710)

On July 13, 2016, an OHA Administrative Judge issued a decision in which he concluded that an individual should not be granted access authorization. The LSO alleged that the individual had a Antisocial Personality Disorder, which is an illnesses that causes, or may cause, a significant defect in the individual’s judgment or reliability (Criterion H) and had evidenced that he was not honest, reliable or trustworthy due to, inter alia, his alleged omission from his QNSP of required information in 13 instances and his alleged pattern of criminal conduct, comprised of 18 arrests, citations or charges (Criterion L). With respect to the Criterion H security concerns, the Administrative Judge found that the DOE psychologist failed to address what the DSM-5 describes as the essential feature of Antisocial Personality Disorder (i.e., that the onset of the conduct disorder began before age 15) and that psychologist acknowledged at the hearing that his written report contains discrepancies from the DSM-5 which the psychologist testified he could not explain. For these reasons, the Administrative Judge held that the psychologist’s report and testimony did not support a security concern with respect to the Antisocial Personality Disorder diagnosis. With respect to Criterion L, the Administrative Judge noted that the individual acknowledged during the hearing that his earlier testimony had been false, with respect to the nature of his manager’s assistance in completing the individual’s QNSP, in an effort to protect his manager from any adverse consequences of the manager’s actions; the Administrative Judge held that such false testimony at an administrative review hearing was disqualifying under Criterion L. With respect to the individual’s history of criminal conduct, the Administrative Judge noted that, while many of these instances cited by the LSO may be subject to mitigation individually, the individual had a 35-year history of involvement with law enforcement (1979 to 2013) and that three years of compliance with criminal laws was insufficient to evidence reformation of his pattern of criminal conduct. OHA Case No. PSH-16-0026 (Wade M. Boswell)

On July 11, 2016, an OHA Administrative Judge issued a decision in which she determined that an individual’s access authorization should be restored.  In reaching this determination, the Administrative Judge found that the individual had resolved the security concerns arising from his failure to file his federal and state income taxes for the years 2011 through 2014. The individual testified that he intended to file his returns and believed he would not be penalized because he would be receiving a refund for all of the tax years in question. Promptly after a November 2015 personnel security interview, he contacted a new tax accountant and filed all of his delinquent federal and state tax returns, 2011 through 2014, in December 2015. The individual testified that he now fully understands his legal obligation to file income tax returns despite whether or not he would be receiving a refund, and stated that he will file his tax returns in a timely fashion in the future. The individual has now filed his federal and state tax returns for the tax years 2011 through 2014, thereby fulfilling his obligation to file tax returns for those years.  He has also submitted evidence that he filed his 2015 federal tax return, and testified credibly that he now completely understands his obligation to file federal tax returns. The individual’s failure to file his federal and state tax returns stemmed from procrastination, misinformation and negligence, not a willful disregard of the law.  The Administrative Judge therefore determined that the individual had adequately resolved the Criterion L security concerns at issue. OHA Case No. PSH-16-0017 (Kimberly Jenkins-Chapman)

Freedom of Information Act (FOIA) Appeal

On July 11, 2016, OHA denied an Appeal of a FOIA determination issued by the DOE Office of Scientific and Technical Information (OSTI). The Appellant, who believed that he may have been a victim of a human radiation experiment associated with the DOE or its predecessors, had filed a request with OSTI for information that would allow him to file claim for benefits and resources. In response to his request, OSTI determined that it could locate no responsive records because the information the Appellant sought was not related to a subject matter on which OSTI collects information. In his Appeal, the Appellant challenged the adequacy of OSTI’s search. OHA found, however, that OSTI was not required to conduct an additional search for responsive records because OSTI does not collect records of the type the Appellant requested and because the DOE does not have a compensation program for victims of human radiation experiments. Accordingly, OHA denied the Appeal.  OHA Case No. FIA-16-0038 

On July 13, 2016, the OHA denied a Freedom of Information Act (FOIA) Appeal filed by Tim Hadley from a determination issued to him by the Department of Energy’s Office of Inspector General (OIG). In his Appeal, Mr. Hadley challenged the OIG’s application of FOIA Exemptions 6 and 7(C) to withhold names and other identifying information from a copy of a Memorandum of Interview that was released to him by the OIG. In its Decision, the OHA concluded that the OIG had properly applied these Exemptions because the OIG is a law enforcement agency, and the individuals whose names were withheld had a protectable privacy interest that outweighed the public interest in disclosure. Accordingly, the OHA denied the Appeal.   OHA Case No. FIA-16-0041

Contractor Employee Protection (10 CFR Part 708)

On July 14, 2016, OHA granted an Appeal involving a Complaint filed by Dr. Shou-Yuan Zhang against Brookhaven Science Associates (BSA) under the DOE’s Contractor Employee Protection Program, 10 CFR Part 708. In his Complaint, Dr. Zhang alleged that in an email to a BSA official, he reported research misconduct and that, in response, BSA transferred him to a new position. The DOE’s Brookhaven Site Office (BHSO) dismissed the Complaint on the grounds that Dr. Zhang had not made a disclosure protected by Part 708 and that BSA had offered Dr. Zhang remedies that were equivalent either to the remedies he sought or the remedies available under Part 708. On appeal, OHA found that, considering all materials in a light most favorable to Dr. Zhang, it could not conclude that Dr. Zhang had not made a protected disclosure. OHA further found that it did not appear as if the remedies offered by BSA were such that dismissal at this stage was merited. Accordingly, OHA granted the Appeal and remanded the matter to the BHSO for further processing. OHA Case No. WBU-16-0006