FOIA Appeal (FIA)
FOIA; Appeal Denied
On August 10, 2022, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) appeal filed by Saurabh Dixit from a final determination letter issued by the Department of Energy's (DOE) Office of Public Information (OPI). Appellant's FOIA request sought a list of organizations having embargoes, a list of restrictions imposed on organizations by DOE, and a list of restrictions on foreign nationals who have past associations with embargoed organizations. OPI referred Appellant's request to the DOE Office of Environment, Health, Safety, and Security (EHSS) to perform a search. EHSS conducted an electronic search for records including a search for several forms of electronic documentation, but found no responsive documents.
On appeal, Appellant argued that his request to visit one of DOE's national labs was rejected because of his past association with an embargoed organization, and asserted that because DOE conducts very strict screening for foreign visits and assignments, DOE must have the responsive records. OHA contacted EHSS, and discovered that the EHSS subject matter expert (SME) who performed the search has in-depth knowledge and expertise of past and current requirements and policies for agency-level unclassified foreign national access including foreign national access to DOE sites. The EHSS SME explained that if Appellant's requested documents existed in DOE records, it would have been collected in the FACTS system, which documents and tracks foreign national access across the DOE complex. Further, EHSS's electronic search was most likely to uncover responsive documents because the entire policy development process for the relevant DOE Order, DOE Order 142.3B-Unclassified Foreign National Access Program, was conducted online. EHSS had searched using search terms provided in the FOIA request and focused on obtaining any information that indicated that DOE had either developed or implemented restrictions on foreign national access. Upon review, OHA found that EHSS provided a sufficiently detailed description of its search, and determined that the search was reasonably calculated to uncover responsive documents . Accordingly, OHA denied Appellant's appeal. (OHA Case No. FIA-22-0024)
Personnel Security Hearing (PSH)
(OHA Case No. PSH-22-0104, Fine)
Access Authorization Granted; Guidelines F (Financial Considerations.
On August 12, 2022, an Administrative Judge determined that the Individual's access authorization should be granted under 10 C.F.R. Part 710. The Individual is employed by a DOE contractor in a position that requires her to hold a security clearance. The Local Security Office (LSO) received derogatory information regarding the Individual's financial irresponsibility. Regarding Guideline F, the LSO cited his charge off and collection account and debts to the Internal Revenue Service (IRS) and his state tax authority for tax year 2018. The Judge found that the Individual has mitigated the Guideline F concerns regarding his financial irregularities. The Individual testified that his financial difficulties resulted from a bad business decision and the related closing of that business. The Individual made a valiant effort to satisfy all his debts prior to the hearing. In addition, he has paid off his state tax liability and has a payment plan with the IRS. The Individual also showed that his is current on all his other bills. Accordingly, the Individual was able to demonstrate that he had resolved the security concerns arising under Guideline F. (OHA Case No. PSH-22-0075, Fishman)
Access Authorization not restored; Guidelines E (Personal Conduct), G (Alcohol Consumption), H (Drug Involvement and Substance Misuse), and J (Criminal Conduct)
On August 9, 2022, an Administrative Judge (AJ) determined that an Individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual had a long -standing history of severe multi-substance abuse, including opioid abuse and had been diagnosed by a DOE Psychologist with both Opioid Use Disorder (OUD) and Alcohol Use Disorder (AUD). In addition, the Individual had a longstanding history of failing to provide truthful, complete, and candid answers during national security investigative or adjudicative processes and engaging in omission and falsification in order to conceal his illicit drug use from the LSO. The Individual also had a history of illegal drug use after signing a DOE Drug Certification in which he promised to discontinue all illegal drug use. Further, the Individual waited almost two and a half years to report his enrollment in a treatment program for his opioid addiction, thereby violating his reporting obligations.
After the hearing, the AJ found that the Individual had shown through the submission of drug test results, that he had abstained from opioid use and other illegal drug activity for three and a half years . Accordingly, the AJ found that the Individual had resolved the security concerns raised by the Individual's OUD and illegal drug use.
The AJ similarly found that the security concerns raised by the individual's criminal conduct had been resolved since the Individual's criminal conduct consisted of his illegal drug use and acquisition.
The AJ found that the Individual had not resolved the security concerns raised by his AUD since he was still using alcohol and becoming intoxicated on a regular basis.
The AJ found that the Individual had an especially egregious and longstanding history of failing to provide truthful, complete, and candid answers during national security investigative or adjudicative processes and engaging in omission and falsification in order to conceal his illicit drug use from the LSO, noting that the Individual had a history of illegal drug after signing a DOE Drug Certification in which he promised to discontinue all illegal drug use; and had waited almost two and a half years to report his enrollment in a treatment program for his OUD, thereby violating his reporting obligations . The AJ found that some of the Individual's hearing testimony concerning these issues was of questionable candor, and therefore concluded that given the Individual's lengthy history of untrustworthiness and untruthfulness, those current examples of less than complete candor indicated that the security concerns raised by the Individual's history of deception remained unresolved.
The AJ therefore concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-22-0083, Fine)