FOIA Appeal (FIA)
Appeal granted in part
On January 23, 2023, the Office of Hearings and Appeals (OHA) granted in part the Freedom of Information (FOIA) Appeal filed by William Gagner from a final determination letter (Determination Letter) issued by the Department of Energy's Office of Inspector General (OIG). On Appeal, the Appellant argued the agency failed to adequately explain why it made redactions pursuant to Exemption 4 and that it did not correctly apply Exemption 4 to the redacted documents.
An examination of the Determination Letter revealed that the letter (1) adequately described the results of searches; (2) clearly indicated which information was withheld; and (3) specified the exceptions or exemptions under which information was withheld insofar as it concerned Exemption 5. However, as it related to the explanation provided for the Exemption 4 redactions, the Determination Letter was inadequate, as it did not employ wording consistent with the legal precedent, as established by Argus Leader, that the competitive harm test should no longer be applied in determining whether information is confidential
The Appellant argued the DOE and the Contractor had previously agreed on how and when the DOE would treat information from UT-Battelle as confidential. As the documents in question were not marked "privileged" or "confidential" pursuant to their agreement, there was nothing indicating the Contractor treated the information as confidential. Additionally, there was no indication that the DOE provided assurances of confidentiality to the Contractor at the time the information was submitted to the DOE. An examination of materials provided to OHA indicated that the information was customarily and actually treated as private by the Contractor. Regarding the matter of whether the DOE provided an assurance of confidentiality when the Contractor submitted the information, it was determined that the contract between the Contractor and the DOE indicates the financial information was a contractor - owned record. Accordingly, there was an expectation that the information would not be released . OHA concluded that Exemption 4 was appropriately applied to the redacted information contained in the responsive documents.
Because OHA determined that Exemption 4 was properly applied to the responsive documents in question, notwithstanding that OIG applied the incorrect standard, OHA declined to remand to OIG for further processing. (OHA Case No. FIA-23-0008)
Personnel Security Hearing (PSH)
Access Authorization Not Granted; Guideline E (Personal Conduct)
On January 27, 2023, an Administrative Jude determined that the Individual's access authorization should not be granted under 10 C.F.R. Part 710. The Individual applied to a position with a DOE contractor that requires him to hold a security clearance. The Local Security Office (LSO) received potentially derogatory information regarding the Individual's personal conduct. With respect to Guideline E, the LSO alleged that the Individual indicated in his QNSP that he received a degree from a specific university and told an investigator that he was certain that he completed his degree in the late 1990s. The information obtained from the university did not corroborate the Individual's assertion that he received a degree. The LSO went on to alleged that the Individual indicated in the Letter of Interrogatory (LOI) that he assumed that he had enough credit hours to obtain his degree, stated that he did not have documentation to support his claim, and that he should have told the investigator that he was not fully aware of whether he obtained a degree.
The LSO also alleged that the Individual indicated in his QNSP that he had not had any bills or debts turned over to a collection agency within the past seven years. The information in the possession of the DOE indicated that the Individual had four debts assigned to collections between the years 2018 and 2021.
The Individual testified and stated in his LOI that he had completed course credits at a community college. Accordingly, he believed that he had accrued enough credits to earn a degree from the university in question and questioned the accuracy of the LSO's allegations regarding the credit hours he had completed. The Individual told an investigator that he was certain that he had received his degree but could not provide any documentation supporting the assertion that he had received a degree from a university.
Regarding the debts that were assigned to collections, the Individual indicated in the LOI that to his knowledge, they had all been paid on time. In his testimony, the Individual explained the circumstances surrounding the debts, and indicated that he likely satisfied one debt by paying the collection agency. The Individual did not provide any evidence corroborating his assertion that he had satisfied the debts in question and when they were satisfied.
The Individual did not present any evidence that he made prompt, good -faith efforts to correct the alleged omissions and falsification, that the alleged omission was pursuant to advice from legal counsel, or that the Individual has engaged in counseling to change his behavior to alleviate circumstances that contributed to this behavior. The Administrative Judge also could not conclude that the Individual had taken any positive steps to alleviate the circumstances that contributed to his omissions and falsification, and further, the Individual's testimony, caused some concern that he continued to exhibit dishonest behavior. Further, the alleged omissions and falsifications occurred in the recent past, there was more than one instance of false information on the same QNSP, and the Individual later failed to correct the inaccuracies when questioned by the investigator as to whether he obtained a degree from the university in question. Accordingly, the Administrative Judge could not conclude that the alleged omissions and falsifications were minor or occurred under such unique circumstances that such omissions or falsifications are unlikely to recur. The Individual did not present any evidence that he took any measures to reduce or eliminate vulnerability to exploitation, manipulation, or duress, or that the information regarding the alleged omissions and falsification came from a source of questionable reliability. Lastly, there is no allegation that the Individual was involved in any criminal activity. (OHA Case No. PSH-22-0139, Rahimzadeh)