Summary of Decisions - July 29, 2024 - August 02, 2024

FOIA Appeal (FIA)

On August 1, 2024, the Office of Hearings and Appeals (OHA) granted in-part a Freedom of Information (FOIA) appeal filed by Michael Cole (Appellant) from a determination letter issued by the Department of Energy's (DOE) Office of Science-Consolidated Service Center, Chicago/Lemont location (SC CSC- CH). The Appellant submitted a FOIA request seeking annual reports published by the Princeton Plasma Physics Laboratory (PPPL). SC CSC-CH undertook searches within PPPL and the DOE's Princeton Site Office's files and provided the Appellant with hyperlinks to publicly available responsive records. The Appellant challenged the adequacy of SC CSC-CH's search and decision to produce publicly available documents via hyperlinks rather than provide electronic copies. After reviewing the appeal, OHA determined that SC CSC-CH was not required to produce electronic copies of the publicly available responsive records. OHA further found that SC CSC -CH properly conducted a search within PPPL, but not PSO. Accordingly, the Appellant's appeal was granted in -part and remanded to SC CSC-CH to issue a new determination letter. (OHA Case No. FIA-24-0037)

On July 31, 2024, the Office of Hearings and Appeals (OHA) denied a Freedom of Information (FOIA) appeal filed by Michael Cole (Appellant) from a determination letter issued by the Department of Energy's (DOE) Office of Science-Consolidated Service Center, Chicago/Lemont location (SC CSC- CH). The Appellant submitted a FOIA request seeking information regarding the Princeton Plasma Physics Laboratory's (PPPL) requests for legal advice related to its contractual obligations to DOE . The Appellant challenged SC CSC-CH's denial of his request for a waiver of fees associated with the processing of his request. After reviewing the appeal, OHA concluded the Appellant did not establish he was able to disseminate information obtained from the records to the public, or that the disclosure of the requested records would significantly contribute to the public's understanding of government operations or activities. Accordingly, the Appellant's appeal was denied. (OHA Case No. FIA-24-0042)

Personnel Security Hearing (PSH)

Access Authorization Denied; Guideline's G and J

On August 1, 2024, an Administrative Judge (AJ) determined that an Individual's access authorization under 10 C.F.R. Part 710 should be denied. The Individual had an extensive history of criminal activity and disregard for the law that included four alcohol -related arrests. In addition, a DOE-contracted Psychologist evaluated the Individual and found that he met sufficient criteria for Alcohol Use Disorder (AUD), Severe. Moreover, the Individual had failed to comply with DOE Order 472.2A which requires applicants for security clearances to report arrests to the LSO within three days.

The AJ found that three themes concerning the Individual stood out in the record, as relevant to the security concerns raised by the LSO. First, he had demonstrated a longstanding inability or unwillingness to comply with rules and the law. Second, he had a significant, longstanding alcohol problem, which he had not successfully addressed.  Third, he was a remarkably inconsistent historian.

Accordingly, the AJ found that the Individual had not mitigated any of the security concerns raised by his AUD, his extensive criminal history, and his failure to timely report an arrest for driving while intoxicated.

The AJ therefore concluded that the Individual's access authorization should be denied. (OHA Case No. PSH-24-0078, Fine)

Access Authorization Not Restored; Guideline F (Financial Considerations)

On August 2, 2024, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. In July 2023, the Individual signed and submitted a Questionnaire for National Security Positions (QNSP), in which he disclosed that he failed to file his federal and state income taxes for tax years 2018-2020. He subsequently submitted a Letter of Interrogatory (LOI) response disclosing that he had not filed his federal and state income taxes for 2022. He stated that he had not filed his taxes because all of his 2018 financial records that he had stored in his online financial software program had disappeared. He also stated that he and his wife had not filed their 2022 joint tax return due to an alleged W-2 error by his wife's former employer. At the hearing, the Individual admitted that although he had lost his digital financial records, his decision not to file his taxes was not an issue of the information being unavailable because he had the ability to do the line-by-line work required to reconstruct his financial records to prepare and file his taxes . He admitted that he had procrastinated and also chose not to hire a tax professional until six months prior to the hearing because he thought it was costly, despite asserting in his LOI response that his net worth was more than $2.2 million. The Individual submitted evidence showing he had filed his federal and state income tax returns for 2018 and 2019. However, he had not yet filed his 2020 taxes. In addition, regarding his 2022 taxes, he admitted that he was informed in February 2024 by the IRS that he could file his taxes if he completed the dispute form that the IRS sent to him. Nevertheless, he had not filed the dispute form and still had not filed his 2022 taxes. The Administration Judge found that the Individual had not mitigated the Guideline F concerns and, accordingly, concluded that Individual's access authorization should not be restored. (OHA Case No. PSH-24-0096, Balzon)

Access Authorization Not Restored; Guideline G (Alcohol Consumption)

On July 30, 2024, an Administrative Judge determined that the Individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual is employed by a DOE Contractor in a position that requires him to hold a security clearance. The Local Security Office (LSO) received potentially derogatory information. The LSO learned that the Individual had tested positive for alcohol while at work, and further, a DOE-consultant psychologist (DOE Psychologist) determined that the Individual habitually consumes alcohol. Although the Individual had enrolled in a treatment program, he had not been abstinent for ten months, as the DOE Psychologist had recommended. The DOE Psychologist could not conclude that the Individual had shown adequate evidence of rehabilitation or reformation. The Individual ailed to mitigate the stated concerns. (OHA Case No. PSH-24-0117, Rahimzadeh)