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Summary of Decisions - July 15, 2013- July 19, 2013

July 19, 2013 - 10:14am

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Personnel Security Hearing (10 CFR Part 710)

On July 17, 2013, an OHA Hearing Officer issued a decision in which he concluded that an individual should be granted an authorization access.  When the individual was 17 years old (2007), he was diagnosed with sudden onset diabetes (Type 1–Insulin Dependent) and with Adjustment Disorder NOS.  Three months later, immediately following a traumatic telephone call with his girlfriend, he ingested a handful of over-the-counter medication in a suicide attempt. At that time, he was diagnosed with “Depression NOS.”  Due to the security concerns raised by this history of treatment for psychological disorders, the individual was referred to a DOE consulting psychologist who diagnosed the individual as suffering from Depressive Disorder NOS and Anxiety Disorder NOS, based upon the individual’s responses on the Rorschach test and his personal history.  However, the Hearing Officer found this analysis attenuated. The individual’s forensic psychologist (who was also a neuropsychologist with a research background on the effect of diabetes on executive function and depression) evaluated the individual and concluded the individual is not currently manifested any mental disorders. Her explanation relied upon the brain development that takes place between the teenage years and the early 20’s. The Hearing Officer found this analysis persuasive and consistent with (1) the individual’s success in managing his diabetes since his teenage years, and (2) no suicide attempts or suicidal ideation since the time of his teenage suicide attempt in 2007. OHA Case No. PSH-13-0012 (Wade M. Boswell, H.O.)

On July 15, 2013, a Hearing Officer issued a decision in which he determined that an individual should not have an access authorization granted to him. In reaching this determination, the Hearing Officer found that the individual had substantially mitigated security concerns regarding financial irresponsibility associated with 14 delinquent credit accounts, a 2005 bankruptcy, a 1995 arrest for stealing a credit card, termination from three positions for failure to follow company rules, and marriage to an undocumented alien. The individual provided testimony attesting to his recent efforts to resolve the delinquent accounts and asserted that he was improperly discharged from two of his employment positions. Additionally, the individual presented testimony from two supervisors and two cousins indicating that the individual was a hard worker and lived frugally. Notwithstanding, the Hearing Officer found that the individual had not presented sufficient evidence to establish that he had been improperly discharged from two positions.  Further, the Hearing Officer found that, while the individual had made progress in resolving his past financial difficulties, the individual had not demonstrated a sufficient period of financial responsibility to overcome the security concerns raised by his protracted history of mismanaging his finances. OHA Case No. PSH-13-0053 (Richard Cronin, H.O.)

On July 16, 2013, an OHA Hearing Officer issued a decision in which he determined that the DOE should not restore an individual’s access authorization.  As security concerns, a Local Security Office (LSO) cited the individual’s failure to pay federal and state income taxes for most years from 2002 through 2011, which demonstrated a pattern of financial irresponsibility.  The Hearing Officer found that the individual had resolved these concerns with respect to his state tax delinquency, as he had paid the state what he owed and was current on his state taxes.  Regarding his federal tax debt, which was recently calculated at over $90,000, the individual presented evidence that he had entered into a payment plan with the IRS and had made a first payment on the plan, and in addition had engaged an attorney to assist him with both past and future tax matters.  Nevertheless, the Hearing Officer concluded that despite the individual’s efforts, too little time had passed to establish a sustained pattern of financial responsibility in light of the long history of financial irresponsibility.  OHA Case No. PSH-13-0046 (William M. Schwartz, H.O.)

On July 15, 2013, an OHA Hearing Officer issued a decision in which he determined that the DOE should grant an individual access authorization.  As security concerns, a Local Security Office (LSO) cited the individual’s dual citizenship, his holding a passport issued by his country of birth and substantial investments maintained in that country, and his availing himself of benefits available to citizens of that country.  The Hearing Officer found that the individual had resolved these concerns:  the individual was willing to relinquish his foreign citizenship, no longer intended to renew his now expired foreign passport, and had transferred the majority of his foreign assets to the United States (for reasons unrelated to his security clearance process).  Regarding the two foreign citizen benefits that had raised concerns for the LSO, he successfully mitigated those concerns by revealing that (1) as a non-resident citizen of his country of birth, he was not in fact eligible for free medical care, as he had formerly believed, and (2) having transferred the bulk of his assets out of this country of birth, the exemption available to citizen income tax filers was now of minimal monetary value.   OHA Case No. PSH-13-0045 (William M. Schwartz, H.O.)

Freedom of Information Act (FOIA) Appeals

On July 17, 2013, OHA issued a decision denying a consolidated appeal (Appeal) from a FOIA determination issued by the Idaho Operations Office (IOO). Appellants appealed the IOO’s determination that the requested videotape was not an agency record. IOO informed OHA that the requested videotape was created and maintained by its contractor, Battelle Energy Alliance (BEA), and that pursuant to its contract, the videotape is deemed contractor-owned as BEA preserved it in anticipation of litigation and it concerns an employee-related investigation. Thus, OHA concluded that the requested videotape is not an agency record and denied the appeal.  OHA Case Nos. FIA-13-0047 and FIA-13-0048

On July 17, 2013, OHA issued a decision denying an appeal (Appeal) from a FOIA determination issued by the Office of Information Resources (OIR).  The Appellant had filed a FOIA request seeking copies of all management training records and documents for four named DOE employees in OHA.  The Appellant appealed the OIR’s decision to withhold portions of the released documents pursuant to Exemption 6 and contested the adequacy of its search.  The withheld portions consisted of certain course titles and course codes that implicate personal privacy information about OHA employees who took those specific courses.  The OIR stated in its decision letter that portions of the documents were withheld pursuant to Exemption 6 of the FOIA because the public interest in releasing the information did not outweigh the overriding privacy interests in keeping the information confidential. OHA, acting through the Chief Information Officer pursuant to a delegation from the Director, OHA, reviewed the withheld information and determined that the OIR properly invoked Exemption 6.  OHA determined the withheld information was personal privacy information, the disclosure of which could lead to injury, embarrassment, jealousy or harassment and would potentially have a deleterious effect on employee morale and workplace efficiency.  OHA stated that these substantial privacy interests outweighed the public interest in disclosure, and therefore the release of the information at issue would constitute a clearly unwarranted invasion of personal privacy.  The OIR stated that two offices conducted a search for responsive documents: OHA and the Office of the Chief Human Capital Officer.  Upon review of each office’s description of its search, OHA determined that the OIR conducted an adequate search for responsive documents.  Therefore, OHA denied the Appeal.   OHA Case No. FIA-13-0039

On July 17, 2013, OHA issued a decision denying an appeal (Appeal) from a FOIA determination issued by the Office of Information Resources (OIR).  The Appellant filed a two-part request under the Freedom of Information Act (FOIA).  The request sought 1) copies of time and attendance records for OHA employees, and 2) copies of counseling memoranda or disciplinary actions involving time and attendance for OHA employees, including, but not limited to, Avery R. Webster and XXXXX.  In response to the first part of the request, the OIR released one document in part, withholding portions pursuant to Exemption 6 of the FOIA.  In response to the second part of the request, the OIR informed the Appellant that it neither confirmed nor denied the existence of any such records (a so-called Glomar response).  The Appellant challenged the OIR’s invocation of Exemption 6, its use of a Glomar response, and the adequacy of the search.  After reviewing the unredacted documents, OHA determined that the OIR properly invoked Exemption 6 as the withheld information would reveal information about particular employees’ use of sick leave and vacation time.  This significant privacy interest outweighs the relatively minimal public interest in shedding light on the government’s activities.  OHA also determined that the OIR’s issuance of a Glomar response was appropriate because providing any other response would necessarily reveal potentially embarrassing information about the named individuals and would therefore constitute a clearly unwarranted invasion of personal privacy.  Finally, OHA reviewed the search conducted by the OIR and determined that it was reasonably calculated to uncover responsive documents.  Accordingly, the Appeal was denied.  OHA Case No. FIA-13-0040

On July17, 2013, OHA issued a decision granting, in part, an appeal (Appeal) from a FOIA determination issued by the Office of Health, Safety and Security (HSS).  The Appellant had filed a FOIA request seeking copies of any and all records that contain the time of arrival and/or departure of a named OHA employee at the FOHO gym located in the DOE Forrestal Building, from August 2007 to the present.  In its response, HSS stated that after conducting a search of its files, HSS did not locate any responsive documents.  The Appellant contested the adequacy of the search conducted in response to Appellant’s request.  Upon review of a description of the search conducted by HSS, OHA determined that HSS conducted a search reasonably calculated to find responsive documents.  Further, OHA concluded that any records kept by FOHO are not agency records for purposes of the FOIA, and therefore are not subject to disclosure under FOIA.  However, OHA noted that in the FOIA request, the Appellant requested that DOE check all systems of records, including those in possession of the named employee, who works in OHA.  OHA concluded that the search should have been assigned to OHA, in addition to HSS.  Accordingly, OHA granted the Appeal to the extent that it remanded the matter back to OIR with directions that OIR assign the request to OHA for OHA to conduct a search for responsive records, and that OIR then issue a new determination with respect to OHA’s search.  OHA Case No. FIA-13-0041

On July 17, 2013, OHA issued a decision granting in part, and denying in part, an appeal (Appeal) from a FOIA determination issued by the Office of Health, Safety and Security (HSS).  The Appellant had filed a FOIA request seeking copies of any and all records that contain the time of arrival and/or departure of a named OHA employee from the DOE Forrestal Building from August 2007 to the present.  The Appellant appealed the decision of HSS to withhold the responsive documents in their entirety pursuant to FOIA Exemption 6, and also contested the adequacy of the search conducted by HSS.  The withheld documents consisted of 126 pages revealing the exact dates and times that the named employee entered and exited the Forrestal Building, and the specific entrance and exit portals through which the employee passed. OHA reviewed the withheld documents and determined that HSS had properly withheld them in their entirety under Exemption 6.  OHA determined that release of the withheld information could subject the named employee to harassment, and possible injury, by revealing his patterns of being in a specific place at an exact time, and could have a deleterious effect on the named employee, and on employee morale and workplace efficiency.  OHA stated that these substantial privacy interests outweighed the public interest in disclosure, and therefore the release of the information at issue would constitute a clearly unwarranted invasion of personal privacy.  OHA further determined that HSS had properly withheld the responsive documents in their entirety. Upon review of the description of the search conducted by HSS, the OHA determined that HSS conducted an adequate search for responsive documents.  However, the OHA noted that in the FOIA request, the Appellant requested that DOE check all systems of records, including those in possession of the named employee, who works in OHA.  OHA concluded that the search should have been assigned to OHA, in addition to HSS.  Accordingly, OHA granted the Appeal to the extent that it remanded the matter back to OIR with directions that OIR assign the request to OHA for OHA to conduct a search for responsive records, and that OIR then issue a new determination with respect to OHA’s search.  OHA Case No. FIA-13-0042

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