FOIA Appeal (FIA)

Freedom of Information Act (FOIA) Appeal; Appeal Granted; Exemption 4; Exemption 5; Inadequate Search

On January 13, 2020, the Office of Hearings and Appeals (OHA) granted in part a Freedom of Information Act (FOIA) Appeal filed by Food & Water Watch from a final determination issued by the Department of Energy's Office of Public Information (OPI). On Appeal, the Appellant argued that the Department over-broadly applied Exemptions 4 and 5 to withhold otherwise releasable information, failed to segregate responsive material therein, and failed to locate and provide any information related to a loan guarantee application's second phase. After review, OHA determined that (1) although OPI appropriately applied Exemption 4 post-Argus Leader to withhold information contained in the documents, the documents may contain information that should be released because OHA found examples of redacted nonexempt material and inconsistent withholdings; (2) OPI appropriately applied Exemption 5 to withhold information; and (3) OPI failed to conduct an adequate search related to the Appellant's request for communications between DOE official and external parties. OHA therefore granted the Appeal and remanded the case back to OPI to conduct further review of the documents and conduct a further search for documents in response to the Appellant's request. OHA Case No. FIA-20-0013.

Freedom of Information Act (FOIA) Appeal; Appeal Denied; Exemption 6, Glomar Response

On January 17, 2020, the Office of Hearings and Appeals (OHA) denied a Freedom of Information (FOIA) Appeal filed by Josh Kelety from a final determination issued by the Department of Energy's Richland Operations Office (ROO). In the Appeal, the Appellant challenged ROO's use of a Glomar response to neither confirm nor deny the existence of records responsive to the Appellant's request. After a review, OHA determined that ROO properly issued a Glomar response because any responsive records, if they exist, could be withheld under Exemption 6 of the FOIA. Moreover, the confirmation that any records exist would itself reveal information protected by the same FOIA exemption. Accordingly, OHA denied the Appeal. OHA Case No. FIA-20-0015.

Personnel Security Hearing (PSH)

Personnel Security; Access Authorization Not Granted; Bond Amendment; Guideline's A (Allegiance to the United States); E (Personal Conduct); F (Financial Considerations); and J (Criminal Conduct)

On January 15, 2020, an OHA Administrative Judge (AJ) issued a decision in which he determined that a DOE access authorization should not be granted to the individual. The Local Security Office (LSO) had alleged that the Individual had identified himself as a "sovereign citizen"; had made several attempts to exempt himself from Federal and state law; had made nine omissions from a Questionnaire for National Security Positions (QNSP) that he had signed and submitted to it; made a false statement made to an Office of Personnel Management (OPM) Investigator; attempted to acquire real estate in which he had no legitimate interest by filing a fraudulent lien on a property; had a history of failing to meet his financial obligations; had failed to file his Federal and state tax returns for tax years 2009 through 2016, failed to honor the restitutionary obligations imposed by a court for his prior convictions; had four outstanding charged-off accounts; and had been convicted of Bank Fraud and Receiving Stolen Property, which resulted in his being incarcerated for 15 months. After considering two exhibits filed by the Individual and the Individual's hearing testimony, the AJ found that the Record contains a significant amount of derogatory information evidencing the Individual's unreliability, poor judgment, and untrustworthiness. The AJ noted that, in 2003, the Individual was convicted of two felonies, Bank Fraud and Receiving Stolen Property, which resulted in his incarceration for 15 months.  That information alone, the AJ concluded, was sufficient to disqualify the Individual from holding a security clearance. The AJ further noted that, roughly ten years later, the Individual became involved with the "sovereign citizen" movement. During the Individual's involvement in that movement, he took a number of actions designed to disassociate himself from the Government and to circumvent its laws. The AJ found that several of those actions exhibited remarkably poor judgment, as well as a marked inability or unwillingness to follow rules or obey laws.  The AJ further found, that while the Individual claims that his involvement with the "sovereign citizen" movement ended in 2014, the Individual has continued to exhibit poor judgment and unwillingness to follow the law by failing to file his Federal and state tax returns from 2009 through 2016. Moreover, despite the fact that the Individual claims to have worked for his present employer (a DOE contractor) since November 2015, Ex. 9 at 12, the AJ found that the Individual continues to have financial issues and admits that he has no plans or intentions to resolve these outstanding debts. The AJ concluded that the Individual has continued to exhibit poor judgment, unreliability, and lack of trustworthiness during the present proceeding, where the Individual has omitted potentially disqualifying information from a QNSP, engaged in deceptive behavior during his PSI, and provided testimony during the hearing that was inconsistent with his previous statements provided during his OPM investigation and PSI. Accordingly, the AJ found that the Individual should not be granted an access authorization. OHA Case No. PSH-20-0004 (Steven L. Fine).

Personnel Security; Access Authorization Not Restored; Guideline E (Personal Conduct), Guideline G (Alcohol Consumption), and Guideline J (Criminal Conduct)

On January 16, 2020, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. In February 2017, the Individual submitted a Questionnaire for National Security Positions (QNSP) on which he disclosed that he had been arrested and charged with DUI in 2013. However, the local security office (LSO) learned that the Individual had failed to disclose two previous DUIs and a citation for driving with an open container of alcohol. The LSO also learned that the Individual had failed to fully disclose his alcohol-related arrests during prior security investigative processes, even after being instructed that he was required to do so. A DOE-contracted Psychologist evaluated the Individual, and diagnosed him with Alcohol Use Disorder (AUD), Moderate, under the DSM-5 and determined that the Individual habitually consumed alcohol to the point of impaired judgement. At the hearing, the Individual asserted that he did not believe that he was required to disclose alcohol-related offenses if the charges were later reduced and that he found the questions on the QNSP confusing. The Individual also asserted that he had consumed alcohol in moderation for several years, and abstained from alcohol altogether from September 2019 to the date of the hearing. A forensic psychologist who evaluated the Individual testified that he believed that the Individual's AUD was in sustained remission because he had not met any of the diagnostic criteria under the DSM-5 for over one year, and that the Individual  had a low risk of returning to problematic drinking. The DOE Psychologist disagreed, testified that the Individual's prognosis was very poor unless he pursued treatment, and speculated that he met several diagnostic criteria for AUD. The Administrative Judge concluded that the Individual had not resolved the security concerns under Guideline E because he displayed a pattern of omitting criminal conduct during security investigative processes, and relying on the same excuses for his omissions, even after being instructed to fully disclose his arrest record. The Administrative Judge also concluded that, although she did not accept the opinion of the DOE Psychologist, the Individual's episodes of binge drinking and driving while intoxicated, some of which occurred after years of responsible behavior, presented too great of a security concern and that the Individual had not resolved the security concerns under Guidelines G or J. Therefore, the Administrative Judge determined that the Individual's access authorization should not be restored. OHA Case No. PSH-20-0008 (Janet R. H. Fishman).

Personnel Security; Access Authorization Not Restored; Guideline G (Alcohol Consumption), Guideline J (Criminal Conduct)

On January 17, 2020, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual is employed by a DOE contractor in a position that requires him to hold a DOE security clearance. In February 2019, the Individual disclosed to the Local Security Office (LSO) that he had been arrested and charged with Aggravated Driving While Under the Influence of Liquor or Drugs (DWI). The LSO subsequently issued the Individual a Letter of Interrogatory (LOI), and a DOE consulting psychiatrist (DOE Psychiatrist) evaluated the Individual in May 2019. The DOE Psychiatrist determined that the Individual met the diagnostic criteria for Alcohol Use Disorder, Mild. During the hearing, the Individual testified that he did not begin taking action to obtain treatment for the alcohol concerns until approximately one week prior to the hearing. He further testified that he had by violated the conditions of release, following the 2019 arrest, by consuming alcohol. After reviewing the evidence and observing all of the testimony at the hearing, the DOE Psychiatrist determined that the Individual had not yet been rehabilitated or reformed. The Administrative Judge determined that the Individual had not resolved the security concerns associated with Guideline G or Guideline J. Accordingly, she concluded that the Individual's access authorization should not be restored. OHA Case No. PSH-20-0009 (Katie Quintana).

Personnel Security; Access Authorization Restored; Guideline F (Financial Considerations)

On January 17, 2020, an Administrative Judge issued a Decision in which he determined that an individual's access authorization should be restored. The Individual is employed by DOE in a position that requires him to hold a security clearance. During an investigation, Guideline F (Financial Considerations) derogatory information relating to the Individual’s finances was discovered. Specifically, the Individual made a number of electronic banking transactions totaling in the hundreds of thousands of dollars, many of which were not honored by the transferring bank. The LSO could not determine where the Individual would have acquired such a sum and was not able to ascertain that it came from a legal source. The LSO also alleged that the Individual incurred a significant tax debt in 2016 and that seven of his monthly payments on the debt were dishonored and that the Individual’s credit report showed him owing over $700,000 in debt, with payments surpassing $9,000 per month. Through testimony from the Individual and his wife as well as other documentary evidence, the Administrative Judge determined that the Individual had satisfactorily explained the source of the money involved in the questioned transactions and demonstrated that the sum involved came from a legal source. Additionally, the Individual established that his total debt was significantly lower than was reported by the LSO and that most of the dishonored payments resulted from his wife’s errors in designating bank accounts for payment. At the time of the hearing, the Individual was current on all debt repayment and his tax debt had been fully resolved. Given the evidence in the record, the Administrative Judge found that the Individual had mitigated the Guideline F concerns. OHA Case No. PSH-19-0055 (Richard A. Cronin, Jr.).

Personnel Security; Access Authorization Denied; Guidelines G (Alcohol Consumption) and J (Criminal Conduct)

On January 16, 2020, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should be denied. The Individual is employed by a DOE contractor in a position that requires him to hold a DOE security clearance. The Individual had several alcohol-related arrests. He testified at the hearing that he had remained abstinent from alcohol for several months after having relapsed in July 2019. After reviewing the evidence and observing all of the testimony at the hearing, the Administrative Judge determined that the Individual had not resolved the security concerns. Accordingly, she concluded that the Individual's access authorization should be denied. OHA Case No. PSH-20-0005 (Kimberly Jenkins-Chapman).

Personnel Security; Access Authorization Revoked; Guidelines G (Alcohol Consumption)

On January 16, 2020, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should be revoked. The Individual is employed by a DOE contractor in a position that requires her to hold a DOE security clearance. The Individual was arrested and charged with driving under the influence in December 2018. She testified at the hearing that she had remained abstinent from alcohol for several months following a relapse in July 2019. After reviewing the evidence and observing all of the testimony at the hearing, the Administrative Judge determined that the Individual had not resolved the security concerns. Accordingly, she concluded that the Individual's access authorization should be revoked. OHA Case No. PSH-20-0003 (Kimberly Jenkins-Chapman).