Summary of Decisions - December 18, 2023 - December 26, 2023

FOIA Appeal (FIA) 

On December 21, 2023, the Office of Hearings and Appeals (OHA) denied a Freedom of Information ( FOIA) appeal filed by Al Evans (Appellant) from a determination letter issued by the Department of Energy's (DOE) Office of Public Information. The Appellant sought records of successful applicants for a DOE vacancy announcement. The Appellant challenged the adequacy of DOE's search, and DOE's decision to withhold portions of interview records pursuant to Exemptions 5 and 6 of the FOIA. OHA concluded DOE's search was reasonably calculated to locate records responsive to the Appellant's FOIA request. As to Exemption 5, OHA concluded the withheld information was pre-decisional and reflected the deliberative process of the interviewers, and was properly withheld. As to Exemption 6, OHA concluded there was a substantial privacy interest in the withheld information, a minimal public interest in release of the information, and release of the information would constitute a clearly unwarranted invasion of personal privacy, so the information was properly withheld. Consequently, the Appellant's appeal was denied. (OHA Case No. FIA-24-0008) 

Personnel Security Hearing (PSH) 

Access Authorization denied; Guidelines E and F 

On December 21, 2023, an Administrative Judge (AJ) determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be granted. 

The Individual submitted a Questionnaire for National Security Positions (QNSP) to a Local Security Office (LSO) in which she was required to report (1) any terminations from employment during the previous seven years, (2) any passports she had ever held that were issued by any country other than the United States, (3) and the names of any children she had.  The Individual had failed to comply with these requirements.  The Individual did disclose that she had substantial past due student loan debts and had pled guilty to misdemeanor falsification resulting from her receipt of a dividend from a state program after she submitted an application from which she had omitted information that disqualified her from receiving that dividend. 

The AJ noted that the Individual had not repaid the debt or entered a repayment plan and had not resolved the security concerns raised by her misdemeanor falsification charge and omission of information from her QNSP. 

The Administrative Judge therefore concluded that the Individual's access authorization should not be granted. (OHA Case No. PSH-23-0145, Fine) 

Access Authorization Restored; Guideline G (Alcohol Consumption) 

On December 22, 2023, an Administrative Judge (AJ) determined that an Individual's access authorization should be restored under 10 C.F.R. Part 710. The DOE Local Security Office (LSO) suspended the Individual's security clearance because he had been arrested and charged with Driving While Intoxicated and a DOE-consultant psychologist determined that he was binge consuming alcohol. At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline G, and the Individual put forth sufficient evidence to resolve the Guideline G concerns . Accordingly, the AJ concluded that the Individual's access authorization should be restored.(OHA Case No. PSH-23-0113, Thompson III) 

Access Authorization restored; Guidelines G (Alcohol Consumption); E (Personal Conduct) 

On December 26, 2023, an Administrative Judge (AJ) determined that the Individual's access authorization should be restored under 10 C.F.R. Part 710. In January 2023, the Individual failed an employer mandated random breath alcohol test (BAT).  In May 2023, a DOE Psychologist evaluated the Individual and his Report stated the Individual's May 2023, PEth result was positive although he had reported his last alcohol use was approximately 30 days prior to his PEth test. The DOE Psychologist diagnosed the Individual with Alcohol Use Disorder, Mild, and recommended that he complete the Intensive Outpatient Program (IOP) that he was enrolled in at the time of the evaluation, and complete a year of abstinence, evidenced by negative PEth tests. He also recommended the Individual participate in aftercare twice weekly, attend individual counseling, attend Alcoholics Anonymous (AA) including obtaining a sponsor, and complete ongoing PEth tests and random testing. At the hearing, the Individual acknowledged his problematic alcohol consumption, and admitted he had violated his employer's policies that prohibited reporting to work under the influence of alcohol. He had completed his IOP and testified he attends individual counseling with his treating Licensed Professional Counselor (LPC) and attends aftercare twice weekly. He also testified that he attends AA twice weekly, testified to the 12-step work he is doing with his AA sponsor, and provided AA attendance sheets. He corroborated his claims of abstinence with six consecutive negative PEth tests and six random BAT tests. His witnesses, including his treating LPC and colleagues confirmed his testimony regarding his IOP, aftercare, and AA attendance, and testified as to his honesty, reliability, and trustworthiness. The DOE Psychologist opined that the Individual had shown sufficient evidence of rehabilitation and reformation and that his prognosis was good. He also testified that it was theoretically possible that the Individual's May 2023 PEth result might have been caused by residual alcohol use, as claimed by the Individual, and he opined that he gave great weight where an individual has evidence of several consecutive negative PEth tests.  The AJ found that the Individual had resolved the concerns raised by his alcohol use, and had mitigated the Guideline G concerns. As the Guideline E concerns were related to his alcohol use, the AJ found that the Individual mitigated the Guideline E concerns as the stressors or factors that caused his less than forthcoming behavior regarding alcohol have been alleviated through treatment, and the alleged behavior was unlikely to recur due the Individual's ongoing abstinence from alcohol. (OHA Case No. PSH-23-0118, Balzon) 

Access Authorization Not Granted; Guideline F (Financial Considerations) 

On December 19, 2023, an Administrative Judge (AJ) determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The DOE Local Security Office (LSO) suspended the Individual's security clearance investigation after it discovered that he had significant outstanding delinquent debt. 

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline F, and the Individual did not put forth sufficient evidence to resolve the Guideline F concerns because he disclosed a relatively new delinquent debt and had yet to resolve the significant delinquent debts that precipitated the hearing. Because the concerns remained unresolved, the AJ concluded that the Individual should not be granted access authorization. ( OHA Case No. PSH-23-0119, Thompson III) 

Access Authorization Not Granted; Guideline G (Alcohol Consumption) 

On December 21, 2023, an Administrative Judge determined that the Individual's access authorization should not be granted under 10 C.F.R. Part 710. In November 2022, the Individual completed a Questionnaire for National Security Positions (QNSP) on which he admitted that he was hospitalized for issues related to alcohol misuse in May 2021 and October 2021. After evaluating the Individual, a DOE-consulting Psychiatrist (DOE Psychiatrist) opined that the Individual had an Alcohol Use Disorder (AUD), severe, in partial remission. He also opined that the Individual had not demonstrated adequate evidence of rehabilitation or reformation.  The Individual's Phosphatidylethanol (PEth) test, taken immediately following the evaluative interview, was positive with a reading of 157 ng/mL. At the hearing, the Individual testified that he began overconsuming alcohol with the onset of the pandemic due to isolation and depression. He stated that the May 2021 hospitalization was for medical monitoring for his withdrawal symptoms. Although he completed a two -week outpatient treatment program following that hospitalization, the program consisted of primarily YouTube videos, with no individual or group counseling. By October 2021, the Individual was again overconsuming alcohol. He entered an inpatient rehabilitation program, which included one -on-one counseling, group counseling, and seminars to help with abstinence.  Following his two weeks at the inpatient program, he was linked with outpatient group therapy and one -on-one counseling with an alcohol therapist.  That therapy continued from November 2021 until June 2022, at which time the therapist discharged the Individual with the instruction that he contained the proper skills and knowledge to avoid a relapse in the future should he decide to consume alcohol in the future. 

At the hearing, the Individual presented letters from four medical professionals: a psychiatrist, a psychologist, the IRP-recommended therapist, and his current therapist. Only the IRP -recommended therapist and his current therapist have treated the Individual. All four of these medical professionals were of the opinion that the Individual could consume alcohol moderately. After hearing the testimony and reviewing the submissions, the DOE Psychiatrist confirmed his opinion that the Individual was suffering from AUD, severe, in partial remission. He also confirmed that the Individual had not demonstrated adequate evidence of rehabilitation or reformation. He concluded that the Individual had demonstrated three months of sobriety and two months of attending the SMART program, which was insufficient to show rehabilitation or reformation from his AUD, severe, diagnosis. Especially important was that, based on the results of the PEth test, the Individual underreported his alcohol consumption prior to the evaluation. Additionally, the DOE Psychiatrist denoted that the Individual had two significant failures at attempting to drink in moderation. This coupled with his underreporting to the DOE Psychiatrist convinced the Administrative Judge that he had not mitigated the concerns raised by his alcohol consumption. Accordingly, the Individual was not able to demonstrate that he had resolved the security concerns arising under Guideline G. (OHA Case No. PSH-23-0129, Fishman)