FOIA Appeal (FIA)

Freedom of Information Act (FOIA) Appeal; Appeal Denied; Exemption 3, Glomar Response

On July 17, 2019, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) Appeal filed by Martin Pfeiffer (Appellant) from a final determination issued by the National Nuclear Security Administration (NNSA) that neither confirmed nor denied the existence of responsive records. On Appeal, the Appellant alleged that NNSA had applied its "No Comment Policy" too broadly and interpreted his request too narrowly. He further alleged that DOE had previously acknowledged that responsive records existed. After review, the OHA determined that NNSA had reasonably interpreted the request and properly applied the "No Comment Policy." The OHA also held that official acknowledgement waiver of the "No Comment Policy" applied only to the specific documents acknowledged and found that the documents Appellant cited as official acknowledgement were already publicly available. Accordingly, OHA denied the Appeal. OHA Case No. FIA-19-0024 

Freedom of Information Act (FOIA) Appeal; Appeal denied; Glomar response

On July 18, 2019, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) Appeal filed by Joseph Schmidt from a determination issued by the Department of Energy’s National Nuclear Security Administration (NNSA). In the Appeal, the Appellant challenged NNSA’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 NNSA 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 such records exist would itself reveal information protected by the same FOIA exemption. Accordingly, OHA denied the Appeal. OHA Case No. FIA-19-0019 

Personnel Security Hearing (PSH)

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

On July 18, 2019, an Administrative Judge determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. During his background investigation, information was revealed that the Individual failed to file returns or pay taxes in 2016 and 2017 or pay owed taxes for 2004. At the hearing, the Individual explained that he owed money to the IRS in 2004 due to receiving a lump sum payout from a retirement fund when he left his employment and he did not realize that he needed to pay tax on it. When the Individual received the tax bill, he did not have the funds to pay the tax due. As for his 2016 and 2017 tax returns, the Individual explained that he was injured in September 2016 and that he was unable to work for two months.  During this time, his wife was not employed.  When his tax return was due in April 2017 and again in April 2018, the Individual and his wife failed to file their taxes because they did not have the income to pay any tax amount due. The Individual also provided evidence that he filed and paid his federal and state tax returns for 2016 and 2017 and paid his 2004 tax liability. While the Administrative Judge found that several Guideline F mitigation factors were applicable to the Individual they were outweighed by the fact that the Individual failed to file these returns, as well as his failed to pay his 2004 tax obligation, until prompted to do so because of the hearing.  The Administrative Judge found that this created serious doubt as to the Individual’s commitment or ability to be trusted to follow security rules or regulations. Further, there was no other evidence in the record that established that the Individual’s prior failure to file taxes would not occur again in the future. Given the presented evidence, the Administrative Judge determined that the Individual had not mitigated the security concerns under Guideline F. Therefore, the Administrative Judge determined that the Individual should not be granted an access authorization. OHA Case No. PSH-19-0026 (Janet R.H. Fishman).

Personnel Security; Access Authorization Denied; Guideline E (Personal Conduct) and Guideline H (Drug Involvement)

On July 17, 2019, an Administrative Judge determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The Individual completed an Electronic Questionnaire for Investigations Processing (e-QIP) in which he disclosed that he had previously used marijuana on a regular basis, but represented that he had stopped doing so in 2016 and that he had not used any other illegal drugs or controlled substances in the last seven years. However, a background investigation revealed that the Individual had not fully disclosed the extent of his drug use, and the Individual admitted in an interview with an investigator that he had misrepresented the last date on which he had used marijuana, failed to disclose that he continued to associate with drug-using individuals, and had failed to disclose his prior use of hallucinogenic mushrooms and cocaine. At the hearing, the Individual admitted to having lied on the e-QIP because he thought that truthfully disclosing the extent of his drug usage would have prevented him from obtaining a security clearance. The Individual represented that he had fully disclosed his prior drug use to the investigator before being confronted with the facts, no longer used illegal drugs, and had partially disassociated from drug using individuals. The Individual promised that he would only use marijuana in the future if it was federally decriminalized or he failed to obtain a security clearance and that he would not misrepresent or omit information in any security-related context in the future. The Administrative Judge determined that the Individual had not mitigated the security concerns under Guideline E because he had not fully disassociated from drug using individuals and only disclosed the full extent of his prior drug use months after completing the e-QIP by which time the investigator had learned the information from numerous sources.  The Administrative Judge determined that the Individual had not mitigated the security concerns under Guideline H because the Individual had misrepresented his drug use in the past and his testimony alone was not sufficient to establish that he had stopped using drugs, and also because the Individual continued to associate with drug-using individuals. Therefore, the Administrative Judge determined that the Individual should not be granted access authorization. OHA Case No. PSH-19-0022 (Richard A. Cronin, Jr.).

Personnel Security; Access Authorization Denied; Guideline E (Personal Conduct) and Guideline H (Drug Involvement)

On July 16, 2019, an Administrative Judge issued a decision in which she determined that an individual’s DOE access authorization should not be granted. The local security office (LSO) denied the Individual access authorization pursuant to Guidelines G. The LSO cited the DOE Psychologist’s conclusion that the Individual meets the DSM-5 criteria for Alcohol Use Disorder-Moderate and the Individual’s five alcohol-related arrests as security concerns. During the hearing, the Individual testified that he had not consumed alcohol in approximately two and half months and had recently began attending Alcohol Anonymous meetings. The Individual stated that he had no future intentions to consume alcohol, but acknowledged that, in the past, he has returned to consuming alcohol even after long periods of sobriety. The DOE Psychologist also testified that, although she believed the Individual was on the right path, the period of sobriety and treatment had not been long enough for her to change her diagnosis.  The Administrative Judge found, based on the Individual’s history of alcohol use and pattern of abstinence following an alcohol-related arrest and then eventual relapse, that none of the applicable mitigating factors applied to the security concerns in this case. Accordingly, the Administrative Judge determined that the Individual’s access authorization should not be granted. OHA Case No. PSH-19-0023 (Brooke A. DuBois).

Whistleblower Appeal (WBA)

WBA-17-0011 - In the Matter of Dr. Shou-Yuan Zhang; Appeal Denied

On July 16, 2019, the Office of Hearings and Appeals (OHA) issued an order denying Dr. Shou-Yuan Zhang's appeal of the OHA's initial agency decision under the Department of Energy's (DOE) Contractor Employee Protection Program, 10 C.F.R. Part 708. The appeal alleged that the Administrative Judge had incorrectly assessed the credibility of hearing witnesses. The OHA Director found no clear error in the Administrative Judge's decision and held that, absent clear error, the Administrative Judge who presides over a hearing is best positioned to assess witness credibility. Accordingly, OHA denied the appeal. OHA Case No. WBA-17-0011.