FOIA Appeal (FIA)

Appeal Denied; Adequacy of Search

On January 4, 2021, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) appeal filed by Luis R. Comolli (Appellant) from a final determination issued by the Department of Energy's Office of Science-Bay Area Site Office ( BASO). Appellant's FOIA request sought radiation records documenting the radiation dose he was exposed to while operating an instrument (microscope Jeol 3100 with an electron accelerator) during his employment at Lawrence Berkeley National Laboratory (LBNL). BASO referred the case to the University of California (UC-LBNL), the management and operating contractor at LBNL. The Radiological Control Manager and Group Leader of the Radiation Protection Group and his staff at UC-LBNL performed three searches, including two searches of the UC-LBNL radiation monitoring database (database) and one search of UC-LBNL's hard copy files of radiation monitoring records. They searched the database and   hard copy files using Appellant's last name and employee identification number, but found no responsive records. Moreover, the Group Leader provided additional information that radiological monitoring of both the instrument and the room containing the instrument showed  that the levels of radiation were too low to require individual monitoring, which provides support for the absence of individual radiation exposure records for Appellant. Upon review,  OHA determined that the search was reasonably calculated to uncover responsive documents. Therefore, OHA denied Appellant's appeal. OHA Case No. FIA-21-0003 

Personnel Security Hearing (PSH) 

Personnel Security; Access Authorized Not Granted; Guideline F (Financial Considerations)

On January 4, 2021, an OHA Administrative Judge (AJ) issued a decision in which she determined that an Individual's DOE access authorization should not be granted. The

Individual is employed by a DOE contractor.  To support the Guideline F security concerns, the LSO alleged that the Individual had not filed his Federal or state income tax returns for tax years 2013 to 2018; the Individual has an unpaid charge-off account in the amount of $ 5263; and the Individual has additional unpaid collection accounts totaling $11,876 for debts owed to four separate creditors and five medical collections.

At the hearing, the Individual presented evidence and witness testimony reflecting that he successfully worked with a tax preparer to file his federal and state tax returns. The Internal Revenue Service (IRS) had accepted his proposal for a monthly payment agreement, however, it was still processing the remaining tax returns such that the installment agreement   did not yet include all of his outstanding tax balance. The Individual testified that he not made any payment arrangements with the state tax authority concerning his outstanding state taxes and had yet to make any payments to the IRS or state tax authority toward his approximately $36,412 overdue tax bill. The Individual testified that he had mitigated the security concerns regarding his other outstanding delinquent debts by initiating discussions with his creditors to make payment agreements and by informing his daughters that he will no longer be able to  provide them with as much financial assistance due to his priority of paying his outstanding debts. He asserted that his financial problems began 22 years ago when his wife passed away   and he was left to raise his two daughters as a single parent with no outside resources. He   further stated that his financial hardship continued because his previous jobs did not provide sufficient funds to pay for the needs of his daughters while simultaneously paying his debts. However, despite the fact that his daughters are both adults, he continues to provide them with approximately $1000 total every month, including providing funds for monthly rent and  food expenses for the past decade for his oldest daughter.

The AJ found that while the Individual had taken positive actions to improve his financial situation, he is still early in the process of reformation at this time. He delayed addressing his    tax obligations and outstanding debts until he was forced to address these issues in his QNSPS and LOI. Moreover, he did not submit evidence of any payments he had made for any of his outstanding debts. He also indicated that even with the increased salary of his current job, he has not been able to set aside any funds to pay his debts because he is still   paying for his daughters' expenses. Moreover, he admitted that he does not know the exact amount of his total monthly payments because he is still working out the details with his creditors. Accordingly, the AJ found that the Individual did not provide sufficient evidence to demonstrate that he has resolved the security concerns raised under Guideline F, and therefore found that the Individual's access authorization should not be granted at this time. OHA Case No. PSH 20-0052 (Kimberly Jenkins-Chapman).

Personnel Security; Access Authorization Restored; Guideline E (Personal Conduct), Guideline G (Alcohol Consumption)

On January 7, 2021, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should be restored. The Individual is employed by a DOE contractor in a position that requires him to hold a DOE security clearance. In July 2019, the Individual was subjected to a random breath alcohol test (BAT) as part of his employment. He tested positive for alcohol. Following a two-day suspension, the Individual was again subjected to a BAT, which indicated a result of 0.017%. The Individual attributed this result to his use of mouthwash prior to undergoing the test. Ex. 11. Following these events, the Individual underwent a psychological evaluation by a DOE contractor psychologist (Psychologist) in August 2019. The Psychologist found "insufficient data to support the presence of a diagnosable mental health disorder or condition," but recommended that the Individual remain abstinent for six months. Subsequently, in December 2019, after learning that the Individual reported attending outpatient counseling for the purpose of improving emotional regulation within the context of substance use/abuse relapse prevention, the Psychologist diagnosed the Individual with Alcohol Use, Moderate, in early remission. However, upon learning that the Individual had subsequently consumed alcohol, he removed the diagnostic qualifier of "in early remission." During the hearing, the Individual testified that he had undergone counseling for alcohol, began attending Alcoholics Anonymous, and had remained abstinent from alcohol approximately one year. The Administrative Judge determined that the Psychologist's diagnosis of Alcohol Use Disorder, Moderate, was neither supported nor credible. As such, the Administrative Judge determined that the Individual had resolved the security concerns associated with Guideline E or Guideline G. Accordingly, she concluded that the Individual's access authorization should be restored. OHA Case No. PSH-20-0057 (Katie Quintana,).

Personnel Security; Access Authorization Denied; Guideline F (Financial Considerations); Guideline J (Criminal Conduct)

On January 7, 2021, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should be denied. The Individual has a history of 17 arrests during the period 1993 through 2018. During that period, police charged the Individual with a significant number of offenses, including violating a Domestic Violence Order of Protection, failing to comply with his conditions of release after he tested positive for methamphetamine on a court ordered drug test, Embezzlement, Failure to Appear, possession of a contraband motorcycle, and on six occasions, Battery Against a Household Member.

The Individual failed to file his Federal and state tax returns for tax years 2011 through 2017, owes $15,000 in delinquent state sales tax, had his wages garnished by the Internal Revenue Service (IRS), and had a $30,000 lien filed against him by the IRS. Further, a former landlord obtained a judgment, in the amount of $1,436, against the Individual for non- payment of rent. The Record also provided that the Individual has seven additional outstanding debts, with two accounts in charge-off status, four accounts in collection status, and one account in past due status.

The Individual has presented no credible evidence that he has resolved any of his outstanding  debts or tax obligations, that he was not liable for their payment, or that he has filed any of his outstanding tax returns. Instead he alleged that his ex-wife and the theft of a briefcase containing tax documents are responsible for his failure to resolve his outstanding debts and    tax obligations. Moreover, the Individual's financial irresponsibility was frequent, continues to occur, and continues to cast doubt on the Individual's current reliability, trustworthiness, and  good judgment. There is no evidence in the Record indicating that the Individual's debts and failures to file his tax returns were due to circumstances beyond his control, that he ever took measures to work with creditors to resolve his debts, or that he has ever sought extensions of  his filing deadlines from the IRS or state tax authorities. The Individual has neither offered any corroboration of his claim that he is working with a credit repair counselor, nor has he provided any evidence that his financial problems are being resolved or are under control. There is no evidence in the Record indicating that the Individual is adhering to any good-faith effort to repay overdue creditors or otherwise resolve debts. Although the Individual provided testimony that he was not responsible for the delinquent 2005 state sales tax, he did not provide any evidence to support this claim. Further, the Individual admits that he has not reached an arrangement with the IRS or state tax authorities to file or pay the amount owed.

Although a significant passage of time has occurred since some of the Individual's criminal activity, his pattern of criminal activity has continued into the recent past. Police charged the Individual with criminal activity on three occasions in 2018. Other than his unreliable and uncorroborated testimony, the Individual did not submit any evidence into the Record in support of the assertion that he was coerced into committing any criminal acts. The Individual claimed that his positive drug test in March 2018 resulted from his consumption of over-the- counter medicine, but failed to provide any evidence other than his implausible testimony to buttress these assertions. Lastly, the evidence in the Record does not show that the Individual   has been successfully rehabilitated. Accordingly, the Individual could not show that he has full resolved the security concerns arising under Guidelines F and J. OHA Case No. PSH-20-0050 (Steven Fine).

Personnel Security; Access Authorization Granted; Guidelines J (Criminal Conduct)

On January 7, 2021, an Administrative Judge determined that an Individual's access authorization under 10 C.F.R. Part 710 should be granted. The Individual had a 2017 domestic violence incident, along with numerous criminal charges from 1995 through 2008, including a 2000 charge of "Sexual Contact of a Minor," which required him to register as a    sex offender. The Individual testified, and was supported by his witnesses, that he had been abstinent for 12 years. He continued that the 2017 domestic violence incident occurred  when his frustration reached a breaking point because he caught his girlfriend using drugs again after she had overdosed a month earlier. In addition to testifying about his sobriety, the Individual stated that he had started a culturally-based, 12-step program in his community, along with his brother, and that he speaks to his community, including his co-workers about mental health issues, domestic violence, and sobriety. All this testimony was supported by his witnesses and exhibits.  In light of the testimony of the witnesses and the passage of time of    the criminal offenses, most of which occurred while he was under the influence of drugs and alcohol, the Administrative Judge determined that the Individual had mitigated the security concerns asserted by the local security office under Guideline J. Specific to the 2000 charge of "Sexual Contact with a Minor," the Judge found that the offense occurred over 20 years ago, when the Individual was only 21 years old, and there have been no other allegations of  sexual contact with a minor in the ensuing years. Further, it occurred under circumstances that are unlikely to recur, because the Individual had been drinking heavily at the time mourning his cousin. The Individual has been compliant with the terms outlined by the court, including registering as a sex offender for 20 years, which ends next year.  The Individual has    a good employment record and significant constructive community involvement, including initiating the 12-step program and significant community volunteerism. Therefore, she determined that the Individual's access authorization should be granted. OHA Case No. PSH-20-0045 (Janet R. H. Fishman).