FOIA Appeal (FIA)

Appeal Denied; Inadequate Search

On September 2, 2021, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act Appeal filed by Mensur Omerbashich (Appellant) from a final determination issued by the Nation Nuclear Security Administration (NNSA). On Appeal, the Appellant alleged that the responsive documents were incomplete. The Appellant went on to make a new request and asked that the NNSA provide him with a key/legend to assist in his understanding of the requested documents. After review, OHA determined that the NNSA produced the document sought by the Appellant. Further, FOIA does not require the agency to provide answers to questions or to define terms. As the NNSA provided the Appellant with the agreed-upon records, OHA found that the Appellant's appeal should be denied. OHA Case No. FIA-12-0013.

Personnel Security Hearing (PSH)

Access Authorization Not Granted; Guideline E and F

On September 1, 2021, an Administrative Judge determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be granted. The Individual is employed by a DOE contractor in a position that requires him to hold a DOE security clearance. The Local Security Office (LSO) received potentially derogatory information regarding the Individual's personal conduct and financial state. Under Guideline E, the LSO alleged: On December 9, 2019, the Individual's employer (hereinafter X Corporation) filed a complaint for damages in excess of $200,000 against the Individual personally, as well as his LLC, alleging that during the Individual's tenure of employment, he awarded contracts for business and conferred benefits to his LLC and himself in the form of kickbacks and/or bribes; 2) the Individual confirmed that while employed with X Corporation, in exchange for guaranteeing work to a traffic control company, he would take a percent of the amount paid by X Corporation for the work performed by the traffic control company (resulting in his receipt of approximately $120,000 from February 2018 through September 2019); 3) the Individual created an audio recording of a meeting without the permission or the knowledge of meeting attendees, knowing that this action was in violation of workplace policies. Under Guideline F, the LSO alleged that: 1) the Individual has a collection account totaling $45,234, which he does not intend to resolve; 2) As stated above, X Corporation filed a complaint for damages against the Individual in the amount of $200,000, which he does not intend to defend and which will result in a financial judgement against the Individual.

Through the evidence and testimony, it was determined that the Individual's explanations as to why he failed to disclose the arrangement he had made with the traffic control company were less than credible, and further, his explanations failed to resolve concerns over the Individual's judgement. It was also determined that regarding the matter of the recording, the Individual failed to consider company policy or the ethics of making the audio recording. Similarly, the Individual's reasons for making the recording did not allay concerns regarding his poor judgement.

The Administrative Judge also determined that the matter of the unresolved collection account did not happen so long ago, was not infrequent, and did not happen under such circumstances that would not cast doubt on the Individual's judgment. The Individual disputed the validity of the debt but did not attempt to resolve the matter until 2021, having already ceased making payments in 2013. The Individual's indifference to the matter of the debt is also reflected in his indifference to the progression of the lawsuit filed against him, which suggests that he did not entirely grasp the gravity of the events that were transpiring. Based on the totality of the circumstances and the fact the Individual failed to act in good faith to repay or resolve his debts, the Administrative Judge was unable to conclude that the Individual resolved Guideline F concerns.

Based on the testimony of all witnesses and the evidence submitted, the Administrative Judge therefore concluded that the Individual's access authorization should not be granted. (PSH-21-0060; Kimberly Jenkins-Chapman).

Access Authorization Not Granted; Guideline E (Personal Conduct)

On September 2, 2021, an Administrative Judge (AJ) determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The Individual is   a prospective employee of a DOE contractor for a position that requires the possession of a security clearance. As part of the application for access authorization, the Individual completed a Questionnaire for National Security Positions form in 2019. The DOE Local Security Office subsequently obtained the following information regarding the Individual's past employment misconduct that raised security concerns under Guideline E of the Adjudicative Guidelines: the Individual received written and verbal warnings from an employer in 2019, he resigned from a position in 2018 to avoid possible termination after violating the company's policy, and he was fired from multiple positions between 2012 and 2017 for policy and rule violations.

At the hearing, the Individual did not dispute the terminations, but rather provided witness testimony to resolve the security concerns based on his conduct. At the conclusion of the hearing, the AJ determined that the DOE appropriately invoked Guideline E and that the Individual failed to resolve the security concerns for the following reasons. First, the AJ did not find the security concerns to be mitigated by the severity of the offense, passage of time, frequency, nor surrounding circumstances because the record established a pattern of failing to follow employer rules, sometimes intentionally, up until relatively recently. Second, the AJ found that the Individual had failed to take full responsibility for his conduct. Therefore, the AJ remained concerned regarding the Individual's reliability and judgment. Accordingly, the AJ concluded that the Individual should not be granted access authorization. (Case No. PSH-21-0073, James P. Thompson III)