Exceptions (EXC)

EXC-18-0003

Application for Exception; Granted in part; Special hardship

This Decision and Order considers an Application for Exception filed by Diversified Power International, LLC (DPI), a manufacturer of battery chargers. In its Application, DPI seeks relief from the Energy Conservation Program: Energy Conservation Standards for Battery Chargers (Standards) published on June 13, 2016, at 81 Fed. Reg. 38265 and codified at 10 C.F.R. 430.32(z). Compliance with the Standards is required for equipment manufactured on or after June 13, 2018.

DPI asserts that it will face serious financial consequences if required to immediately comply with the Standards. As set forth in this Decision and Order, we have concluded that DPI’s Application for Exception should be granted in part. OHA Case No. EXC-18-0003

FOIA Appeal (FIA)

FIA-18-0040

Freedom of Information Act Appeal; Appeal Denied; Adequacy of Search

On December 14, 2018, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) appeal filed by Kendra Albert, Esq. on behalf of Ms. Muira McCammon (Appellant) from a final determination issued by the Department of Energy's Office of Public Information (OPI). On appeal, Appellant asserted that OPI had not conducted an adequate search for "any tweets sent out on Twitter that were deleted or kept in draft form from the Twitter handle @fossilenergygov . . . [and] copies of any e-mails or correspondence regarding the drafting and deletion of these tweets." The Office of Fossil Energy (FE) indicated that it did not have any records of Tweets deleted from the FE Twitter account, and that FE drafted Tweets outside of the Twitter account and that there were therefore no Tweets kept in draft form in the drafts folder of the account. FE also searched the e-mail accounts of every member of the FE staff with access to the FE Twitter account using the keywords "tweet," "Twitter," and "delete," but found no records. OHA determined that the adequacy of FE's search was not negatively affected by omitting "draft" from its search terms since FE did not prepare draft Tweets through its Twitter account and could therefore infer that no e-mails would exist about non-existent drafts. As no records of deleted Tweets existed, FE did not keep Tweets in draft form on the FE Twitter account, and FE employed reasonable search terms to search the e-mail accounts of all members of its staff with access to the FE Twitter account,   OHA concluded that the search was adequate. Accordingly, OHA denied Appellant's appeal. OHA Case No. FIA-18-0040 .

FIA-18-0039

Freedom of Information Act Appeal; Appeal Denied; Agency Records, Exemption 4, Exemption 5, Segregability

On December 13, 2018, the Office of Hearings and Appeals (OHA) granted in part and denied in part a Freedom of Information Act (FOIA) Appeal filed by Savannah River Site Watch (Appellant) from a final determination issued by the Department of Energy's Savannah River Operations office (SRO). On Appeal, the Appellant alleged that SRO had improperly asserted that the records responsive to the request were not agency records.  The Appellant also alleged that SRO had improperly invoked Exemptions 4 and 5 of the FOIA in withholding responsive records and that, by withholding the documents in their entirety, SRO had failed to segregate non-exempt information from it withholdings. OHA determined that the responsive records were agency records and that SRO had improperly invoked Exemption 4. OHA also determined that SRO had not properly segregated non-exempt information from exempt information. Finally, OHA determined that SRO had properly invoked Exemption 5. Accordingly, OHA granted the Appeal in part and denied the Appeal in part. OHA Case No. FIA-18-0039 .

Personnel Security Hearing (PSH)

PSH-18-0058

Personnel Security; Access Authorization Not Granted; Guidelines E, F, and J

On December 13, 2018, an Administrative Judge issued a decision in which he determined that an Individual should not be granted access authorization. In a Notification Letter issued to the Individual, the DOE alleged the existence of derogatory information under Adjudicative Guidelines E, F, and J. The Individual had unpaid collection accounts and state and local tax debt. He had several prior criminal charges related to alcohol use and he previously fled a state to avoid criminal charges.  And he failed to disclose some of his collection accounts on the paperwork he submitted for a security clearance. After conducting a hearing, the Administrative Judge first determined, among other things, that the Individual had not mitigated the Guideline F financial concerns because he had not resolved his tax debts despite having significant opportunity to do so.  Second, as to the Guideline J criminal conduct concerns, while the Individual’s last conviction for driving under the influence was over a decade old, he had nevertheless been a fugitive from a state for over a decade and only addressed the outstanding warrant and charges once he sought a security clearance. Third, as for the Guideline E personal conduct   concerns, although the Individual’s failure to disclose his collection accounts in his clearance paperwork may have been a mistake, his history of financial irresponsibility and present lack of awareness regarding his state tax debt presented a doubt that he would accurately disclose information in the future. The Administrative Judge therefore concluded that the Individual had not mitigated the security concerns and accordingly concluded that the Individual should not be granted access authorization. OHA Case No. PSH-18-0062 (James P. Thompson III).

PSH-18-0066

Personnel Security; Access Authorization Restored; Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct)

On December 11, 2018, an OHA Administrative Judge (AJ) issued a decision in which he determined that an Individual’s DOE access authorization should be restored. A DOE-consultant psychiatrist ("DOE Psychiatrist") diagnosed the individual ("Individual") with Alcohol Use Disorder, Moderate under the DSM-5, after police charged him with Negligent Use of a Deadly Weapon (Intoxication), and transported him to a hospital for involuntarily observation. During the incident which led to this arrest and hospitalization, the Individual, who was intoxicated at the time, had threatened to beat his minor son, and while in the possession of a firearm, threatened to commit suicide. The incident further resulted in an investigation by the child protection authorities, who found that the concerns were substantiated.  At the hearing conducted by the AJ, the Individual was able to establish through testimony and the submission of laboratory testing results that he had abstained from alcohol use for the past 13 months. The Individual also provided testimony and evidentiary support for additional steps he has taken to address his Alcohol Use Disorder, including undergoing individual counseling, family therapy, receiving alcohol education counseling, and attending Alcoholics Anonymous (AA) meetings. In addition, the Individual complied with the recommendations of the child protection authorities. The Psychiatrist and the individual’s Counselor both testified that the Individual’s Alcohol Use Disorder was now in full sustained remission, and the probability for relapse is low. Importantly, both the Psychiatrist and the Counselor testified that the Individual’s behaviors which led to his arrest, hospitalization, and investigation by the child protection authorities resulted from his Alcohol Use Disorder, and were therefore unlikely to recur now that his ALCOHOL Use Disorder has been successfully treated.  Accordingly, the AJ found that Individual had presented compelling evidence that he has gained the insight and understanding to recognize that he has a problem with alcohol, the destructive role that alcohol has had in his life, and his need to permanently abstain from alcohol use., and had has taken the appropriate actions to address and treat his Alcohol Use Disorder by obtaining alcohol education counseling, undergoing individual and family counseling, and attending AA meetings. Most importantly, The AJ found that these actions have been effective; as demonstrated by the Individual’s abstinence from alcohol use for 13 months. The AJ further found that as long as the Individual abstains from alcohol use, the defects in judgment, reliability, stability, and trustworthiness that were exhibited during his criminal activity are highly unlikely to recur. The AJ therefore found that the Individual had mitigated the security concerns raised under Guidelines G and J. Accordingly, the AJ found that the Individual's access authorization should be restored. OHA Case No. PSH-18-0066 (Steven L. Fine).