Decisions were issued on: - Personnel Security - FOIA Appeal
Office of Hearings and Appeals
June 9, 2023
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FOIA Appeal (FIA)
FOIA; Appeal Denied
On June 5, 2023, the Office of Hearings and Appeals (OHA) denied the Freedom of Information ( FOIA) appeal filed by Jimmy Tobias from a final determination letter issued by the Department of Energy's Office of Public Information (OPI). On February 28, 2023, OPI sent the Appellant a final Determination Letter informing the Appellant of the searches conducted and the searches did not yield any responsive documents. In a timely filed appeal, the Appellant argued that OPI should have conducted a proper search.
As an initial matter, OHA determined that OPI properly determined that the Office of Intelligence and Counterintelligence (IN) customarily maintained intelligence reports of the nature that the Appellant was seeking, as well as any information pertaining to them. Regarding the searches that were conducted, OHA learned that searches had been conducted in the Headquarters and Laboratory ( HAL) network, as well as the dissemination platform that allows other members of the intelligence community to access DOE-IN products. DOE also learned that no searches were conducted for physical files, as all intelligence information pertaining to COVID-19 was maintained electronically.
Because OHA determined that an adequate search for responsive documents was conducted, OHA denied the appeal. (OHA Case No. FIA-23-0018)
FOIA Appeal Denied; Expedited Processing, Fee Waiver
On June 6, 2023, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act ( FOIA) appeal filed by John Carlo Manigaulte (Appellant), from an Interim Response Letter issued by the Department of Energy (DOE) Office of Public Information (OPI). The Appellant challenged the DOE OPI's denial of his request for expedited processing of his request, and a waiver of fees.
The Appellant sought records showing that analog electricity meters can over -report actual energy consumption. After reviewing the FOIA request and appeal documents, OHA found the Appellant's FOIA request was not in the public's interest. The Appellant did not demonstrate his request concerned an identifiable operation or activity of government, did not demonstrate that disclosure would likely contribute to an understanding of the operations of government, and the Appellant could not rely upon a local news agency to carry his burden of disseminating the information from the records to the public. OHA also found the Appellant's claim that failure to get the records on an expedited basis would cause him to suffer a heart attack and put at risk all consumers who are over - charged for electricity, to be too remote to support expedited processing of his request. (OHA Case No. FIA-23-0019)
Personnel Security Hearing (PSH)
Access Authorization Restored; Guideline G (Alcohol Consumption)
On June 6, 2023, an Administrative Judge determined that the Individual's access authorization should be restored under 10 C.F.R. Part 710. In June 2022, the Individual was arrested and charged with Aggravated Driving While Under the Influence of Intoxicating Liquor or Drugs (ADWI). The Individual reported this incident, and in November 2022, the Individual was evaluated by a DOE- consultant psychologist (DOE Psychologist). The DOE Psychologist concluded that the Individual had been a binge consumer of alcohol to an extent that had been found to impair judgement . Following his arrest, the Individual was placed on his employer's Fitness for Duty (FFD) program, which he successfully completed in September 2022. Pursuant to that program, he was subject to routine breath and urine alcohol tests, all of which were negative. An interlock device was installed in his car. The Individual also enrolled in and completed his employer's Employee Assistance Program (EAP) alcohol awareness class, after which he began attending a sobriety maintenance group, which he continued to attend at the time of the hearing. The Individual also enrolled in a twelve -week intensive outpatient treatment program (IOP) and was scheduled to complete the program the day after the hearing. The IOP also had a one-on-one therapy component. The Individual's one-on-one therapist testified to the Individual's good progress, and the evidence in the record, including the six Phosphatidylethanol (PEth) blood test results, established that the Individual had been abstinent from alcohol since the June 2022 incident. The DOE Psychologist testified that the Individual had shown adequate evidence of rehabilitation and reformation and that his prognosis was good. Accordingly, the Administrative Judge determined that the Individual had mitigated the stated Guideline G concerns pursuant to the mitigating factors at ¶ 23(b) and (c). (OHA Case No. PSH-23-0045, Rahimzadeh)