FOIA Appeal (FIA)

FOIA; Appeal Denied

On January 31, 2023, the Office of Hearings and Appeals (OHA) denied the Freedom of Information ( FOIA) Appeal filed by Cato Institute (Appellant) from a determination letter issued by the Department of Energy's (DOE) Office of the Inspector General (OIG). On Appeal, the Appellant argued that that OIG improperly redacted information pursuant to Exemption 5.

The Appellant argued that the information redacted pursuant to Exemption 5 was factual and, therefore, not subject to the deliberative process privilege, which is incorporated within Exemption 5. OIG countered that the redacted information was deliberative, pre -decisional, and would harm the ability of OIG employees to give candid opinions and recommendations if released. After reviewing the redacted records, we found OIG's explanation of the Exemption 5 redactions in these documents to be reasonable. All of the information redacted contained recommendations or discussion of ideas that OIG was considering in connection with a decision. We also found that OIG's concern about the need to keep this information private as part of its role as DOE's independent evaluator to be well -founded. Therefore, OIG's redaction of information pursuant to FOIA Exemption 5 was appropriate. (OHA Case No. FIA-23-0009)

Personnel Security Hearing (PSH)

Access Authorization Denied; Guideline E (Personal Conduct)

On February 2, 2023, 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 security clearance. In completing a Questionnaire for National Security Positions (QNSP), the Individual provided answers that the DOE determined to be inaccurate

. The Individual subsequently completed a Letter of Interrogatory (LOI), Enhanced Subject Interview ( ESI), and Triggered Enhanced Subject Interview (TESI), in which he again provided inaccurate or inconsistent information. At the hearing, the Individual acknowledged that he mistakenly or incorrectly answered many of the questions posed to him during the clearance application process. The Individual did not present evidence demonstrating that: ( 1) he made prompt and good-faith efforts to correct his omissions and concealments before he was confronted with the facts; (2) the concerning behavior was unlikely to recur; (3) the circumstances surrounding his relatively recent and repeated failure to provide accurate and candid answers did not cast doubt on his judgment, reliability, or trustworthiness; (4) he will be able to provide complete and fully candid answers to the DOE in future . As such, the Administrative Judge could not find that the Individual had sufficiently mitigated the security concerns associated with Guideline E. After considering the evidence in the record and the testimony presented at the hearing, the Administrative Judge determined that the Individual had not resolved the security concerns associated with Guideline E. Accordingly, she concluded that the Individual's access authorization should be denied. (OHA Case No. PSH-23-0005, Quintana)

Access Authorization Not Restored; Guideline G (Alcohol Consumption)

On February 2, 2023, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. In March 2022, the Individual disclosed to the local security office (LSO) that he had received alcohol-related treatment through an intensive outpatient program (IOP). The Individual claimed that he had successfully completed the IOP. However, information obtained by LSO revealed that the Individual was discharged from the IOP for not complying with treatment and repeatedly testing positive for traces of alcohol consumption. A DOE - contracted Psychologist (DOE Psychologist) conducted a clinical interview of the Individual and determined that he met the diagnostic criteria for Alcohol Use Disorder (AUD), Severe, under the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition, and that he either habitually or binge consumed alcohol to the point of impaired judgment. The DOE Psychologist recommended that the Individual demonstrate rehabilitation by entering in -patient treatment for alcohol misuse, attending aftercare for twelve months, and abstaining from alcohol for the duration of treatment. The Individual did not pursue the treatment recommended by the DOE Psychologist and admitted at the hearing that he had relapsed numerous times since the clinical interview with the DOE Psychologist, including a potential binge drinking episode in the month prior to the hearing. The DOE Psychologist opined that her diagnosis of the Individual was unchanged and that his prognosis for recovery was only fair. In light of the recency of the Individual's problematic alcohol consumption and the unfavorable opinion of the DOE Psychologist, the Administrative Judge determined that the Individual had not resolved the security concerns under Guideline G. Therefore, the Administrative Judge determined that the Individual's access authorization should not be restored. OHA Case No. PSH-23- 0007 (Phillip Harmonick)