Personnel Security Hearing 

Access Authorization Not Restored; Guideline J (Criminal Conduct)

On May 9, 2022, an Administrative Judge determined that an Individual's access authorization should not be restored under 10 C.F.R. Part 710. In January 2021, the local security office (LSO) received a report that the Individual had been arrested for Aggravated Battery Against a Household Member (Battery) after a domestic dispute with his girlfriend (Girlfriend). In response to a letter of interrogatory (LOI) from the LSO, the Individual denied that he committed the offense and asserted that he had defended himself after an argument with the Girlfriend about her communications with an ex-boyfriend "briefly turned physical." In September 2021, the Individual was arrested for Battery again after a dispute with the Girlfriend. At the hearing, the Individual represented that the Girlfriend had initiated both disputes as a result of her alcohol abuse, another man had caused her injuries that law enforcement officers observed when they arrested him in September 2021, and counseling had helped him to be more discerning in his relationships and avoid situations that could lead to similar incidents in the future. The Administrative Judge concluded that, in light of the strong evidence that the Individual committed repeated acts of violence, his poor decision making, and his efforts to shift responsibility for his conduct, the Individual had not resolved the security concerns asserted by the LSO under Guideline J. Therefore, the Administrative Judge determined that the Individual's access authorization should not be restored. (OHA Case No. PSH-22-0039, Harmonick)

Access Authorization Granted; Guideline E (Personal Conduct); Guideline G (Alcohol Consumption); Guideline J (Criminal Conduct)

On May 11, 2022, an Administrative Judge (AJ) determined that an Individual should be granted access authorization under 10 C.F.R. Part 710. The DOE Local Security Office (LSO) discovered derogatory information regarding the Individual's personal conduct, criminal conduct, and alcohol use . The latter prompted the LSO to request that the Individual be evaluated by a DOE -consultant psychiatrist ("Psychiatrist"). Subsequently, the LSO informed the Individual that it possessed reliable information that created substantial doubt regarding his eligibility to possess a security clearance because derogatory information raised security concerns under Guideline E, Guideline G, and Guideline J of the Adjudicative Guidelines.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline E because the LSO cited that the Individual used marijuana while interning and employed at government-related sites despite knowing that it was prohibited. The AJ determined that the LSO appropriately invoked Guideline G because the Individual met the criteria for Alcohol Use Disorder ( AUD), Mild, without evidence of rehabilitation or reformation; that the Individual admitted that he occasionally drove while intoxicated; that the Individual drank to intoxication up to two times a month; and that the Individual had a 2014 charge for Underage Consumption of alcohol. The AJ determined that the LSO appropriately invoked Guideline J because the Individual illegally used amphetamines from 2014 to 2019, often selling one or two pills to a friend; he illegally used marijuana from 2013 to 2019, sold marijuana in 2017, and would buy it for his father and friends; he would return items his father stole in exchange for money between 2015 and 2017; he illegally used barbiturates between 2015 to 2016; he illegally obtained barbiturates for his father almost weekly from July 2015 to June 2016; he illegally used hallucinogens between 2014 and 2015; and in 2014, he was charged with Underage Consumption for using marijuana.

The AJ also determined that the Individual had resolved the security concerns for the following reasons. As to Guideline G, the Individual admitted he had an alcohol use problem; he provided evidence of the significant actions he had taken to overcome the problem; and he demonstrated that he had remained abstinent for a significant period and had rehabilitated and reformed his AUD based on the Psychiatrist's conclusion and excellent prognosis. As for Guideline J, a significant period has elapsed since the Individual obtained and used illegal drugs, since the Individual sold illegal drugs to his friends and prior girlfriend, and since the Individual engaged in criminal conduct for the benefit of his father; and the Individual's criminal behavior happened under circumstances that are no longer present. As to Guideline E, the Individual acknowledged that his marijuana use was inappropriate behavior and took several positive steps to alleviate the circumstances and stressors that contributed to his behavior.

Accordingly, the AJ concluded that the Individual had resolved the Guideline E, G, and J security concerns. OHA Case No. PSH-22-0011 (James P. Thompson III)

Access Authorization Not Restored; Guidelines G (Alcohol Consumption) and I ( Psychological Conditions)

On May 11, 2022, an Administrative Judge (AJ) determined that the Individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual had a history of two alcohol-related arrests, and a DOE Psychologist found that he the meet the criteria for Alcohol Use Disorder, Severe (AUD) and Narcissistic Personality Disorder (NPD) set forth in the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition (DSM-5) and had not been reformed or rehabilitated.

At the Hearing, rather than trying to show that he had mitigated the security concerns raised by his two alcohol-related arrests and the Psychologist's finding that he met the DSM -5 criteria for AUD and NPD, the Individual attempted to challenge the Psychologist's conclusions and the veracity of the police reports upon which his DUI and PI arrests were based.

The Individual attempted to contradict his AUD diagnosis by contending that: his two -alcohol related arrests resulted from panic attacks rather than excessive alcohol consumption; the Psychologist had misdiagnosed him with AUD; the laboratory testing was not accurate; and Exhibit A shows that he had abstained from using alcohol from February 27, 2020, to November 8, 2020. Noting that the Individual had not submit any credible evidence from an expert witness of treating mental health provider or substance abuse professional to contradict the Psychologist's opinion that he has AUD, the AJ found that the Individual had not shown that the derogatory information concerning him (two alcohol-related arrests; the AUD, Severe, diagnosis; and three separate laboratory tests indicating that he had likely been engaging in heavy alcohol consumption) was not reliable. The AJ further found the Individual had not provided any evidence indicating that he had mitigated the security concerns raised under Guideline G, since he did not recognize that he has AUD, admitted that he continues to use alcohol, and had not attended any AA or other self -help group meetings, therefore failing to comply with the Psychologist's treatment recommendations.

The AJ similarly found that the Individual had not produced any evidence contradicting the Psychologist's conclusion that he has NPD.  The AJ found that while the Individual's counsel had asked the Individual's coworker and former supervisor if they had noticed whether the Individual had displayed any of the DSM-5 criteria for NPD, neither of these witnesses were qualified to testify on this matter. The AJ further found that the Individual's testimony that he does not meet the DSM -5 criteria was not worthy of any weight. Finally, the Individual testified that he had maintained an HRP certification from 2006 until 2019, during which time he had been under constant monitoring for psychological and mental health issues without the HRP having concluded that he had NPD. The AJ found that without further development or evidence regarding the results of his HRP evaluations, that contention did not contradict the Psychologist's conclusion. Moreover, the AJ concluded, since the Individual testified that the HRP staff stopped monitoring him after his suspension in 2019, the HRP staff did not have access to most of the information that the Psychologist relied upon in reaching her conclusion.  Accordingly, the AJ found that without any information or testimony from the HRP staff, there is no evidence in the Record indicating that they would disagree with the Psychologist's conclusion. The AJ therefore concluded that Individual had not shown that the Psychologist's finding that he meets the DSM-5 criteria for NPD is not reliable.

Accordingly, the Administrative Judge therefore concluded that the Individual's access authorization should not be restored. (OHA Case No. PSH-22-0047, Fine)

Access Authorization Granted; Guideline G (Alcohol Consumption)

On May 12, 2022, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should be granted. 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) in February 2020, the Individual disclosed that he was arrested for " operating a motor vehicle under the influence of alcohol" in April 2018.  He additionally disclosed that he was arrest in May 2019 for Harassment. In February 2021, the Individual was evaluated by a DOE consultant psychologist (Psychologist). The Psychologist diagnosed him with Alcohol Use Disorder, Moderate, in Early Remission, without adequate evidence of rehabilitation. At the hearing, the Individual testified that he had been abstinent from alcohol for over one year and had successfully completed an alcohol intervention program though his employer. He further provided laboratory evidence supporting his sobriety and demonstrated active and consistent participation in Alcoholics Anonymous. After considering the evidence in the record and testimony presented at the hearing, the Psychologist opined that the Individual had demonstrated adequate evidence of rehabilitation and reformation from the Alcohol Use Disorder, Moderate. The Administrative Judge ultimately determined that the Individual had resolved the security concerns associated with Guideline G. Accordingly, she concluded that the Individual's access authorization should be granted. OHA Case No. PSH-22- 0030 (Katie Quintana)

Access Authorization Granted; Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct)

On May 12, 2022, an Administrative Judge (AJ) determined that the Individual's access authorization under 10 C.F.R. Part 710 should be granted.  The Individual had a history of four alcohol-related arrests and had been diagnosed by a DOE Psychologist with Alcohol Use Disorder ( AUD).

After the Hearing, the AJ found that the Individual had provided credible testimony, partially corroborated by laboratory results, that he had abstained from alcohol use for nine and a half months . In addition, the AJ noted, the Individual had submitted evidence showing that he completed alcohol treatment and education programs (and continues to attend one of those programs as an alumnus ), and has received individual counseling for substance abuse.

The Individual, who refers to himself as "an alcoholic," clearly acknowledged his AUD and provided compelling evidence that he has taken action to overcome his alcohol problem, including abstaining from alcohol use for nine and a half months, attending and completing the alcohol treatment and education group programs, attending individual counseling, and compellingly articulating an understanding and acceptance of his alcoholism. The AJ found that though these efforts at rehabilitation, the Individual demonstrated that he had developed a strong and effective toolset allowing him to address any future challenges that his alcohol use disorder may present to him. The AJ also noted the favorable prognosis regarding the Individual's AUD attested to by the Psychologist and the Individual's Counselor. Accordingly, The AJ found that the Individual had provided more than adequate evidence of rehabilitation and reformation to mitigate and resolve the security concerns raised by his AUD and his history of four alcohol-related arrests.

The AJ found the Individual's criminal activity concerns are inextricably linked to his AUD, noting that each of these arrests occurred after an incident in which the Individual was intoxicated. The AJ found that since the Individual has convincingly shown that he is rehabilitated or reformed from his AUD, the root cause of his criminal activity had been successfully addressed.

The AJ therefore concluded that the Individual's access authorization should be granted. (OHA Case No. PSH-22-0032, Fine)

Access Authorization Not Granted; Guideline G (Alcohol Consumption) and Guideline J (Criminal Conduct).

On May 13, 2022, an Administrative Judge determined that the Individual's access authorization should not be granted 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 regarding the Individual's alcohol consumption and criminal conduct. Regarding Guideline G, the LSO cited the DOE Psychologist's report which determined that the Individual met the diagnostic criteria for Alcohol Use Disorder (AUD), Moderate, under the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition (DSM-5), along with the Individual's criminal record of twelve alcohol-related arrests and charges.  Under Guideline J, the LSO invoked the Individual's twenty-two arrests.

At the hearing, the DOE Psychologist confirmed his diagnosis and recommendations, which included that the Individual be abstinent and attend individual counseling with a certified alcohol counselor and AA for a minimum of two years. The testimony and evidence established that the Individual did not satisfy any of the DOE Psychologist's recommendations. The Individual failed to resolve the Guideline G concerns. Since numerous criminal charges were alcohol -related, and the Individual had not controlled his alcohol use, he has not shown that his criminal behavior is unlikely to recur, therefore, Individual has not mitigated the concerns raised under Guideline J.  Accordingly, the Individual was not able to demonstrate that he had fully resolved the security concerns arising under Guidelines G and J. (OHA Case No. PSH-22-0025, Fishman)

Access Authorization Restored; Guideline G (Alcohol Consumption); Guideline J (Criminal Conduct)

On May 13, 2022, an Administrative Judge (AJ) determined that an Individual's access authorization should be restored under 10 C.F.R. Part 710. The DOE Local Security Office (LSO) discovered derogatory information regarding the Individual's alcohol use, which prompted the LSO to request that the Individual be evaluated by a DOE -consultant psychologist ("Psychologist"). Subsequently, the LSO informed the Individual that it possessed reliable information that created substantial doubt regarding his eligibility to possess a security clearance because derogatory information raised security concerns under Guideline G and Guideline J of the Adjudicative Guidelines.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline G and Guideline J because the Individual met the criteria for Alcohol Use Disorder (AUD), Mild, without evidence of rehabilitation or reformation and that the Individual had been arrested for and charged with Driving While Under the Influence and related offenses in December 2021, May 2020, and October 2013. The AJ also determined that the Individual had resolved the security concerns for the following reasons. As to Guideline G, the Individual admitted he had an alcohol use problem; provided evidence of the significant actions he had taken to overcome the problem; and demonstrated that he had remained abstinent for a significant period and rehabilitated and reformed his AUD based on the Psychologist conclusion and good prognosis. As for Guideline J, the Individual put forth evidence of successful rehabilitation because over a year had passed since his last criminal charge, and he had reformed the AUD linked to his criminal conduct and obtained a positive prognosis.

Accordingly, the AJ concluded that the Individual had resolved the Guideline G and J security concerns. OHA Case No. PSH-22-0017 (James P. Thompson III)

Freedom of Information Act

FOIA; Appeal granted in part

On May 12, 2022, the Office of Hearings and Appeals (OHA) granted in part the Freedom of Information (FOIA) Appeal filed by Joe Smyth, through counsel, from a final determination letter (Determination Letter) issued by the Department of Energy's Office of Public Information (OPI). On Appeal, the Appellant argued the agency failed to adequately explain why it made redactions pursuant to Exemption 5, that it did not correctly apply Exemption 5 to the redacted emails, and that it did not correctly apply the foreseeable harm standard.

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.

An examination of the redacted emails revealed that these emails consisted of exchanges between DOE employees, were drafted and exchanged in relation to DOE decisions, and evidenced a deliberative nature. However, portions of Document 6 were incorrectly redacted, as it consisted of public information. In making the argument that the agency withheld information in a manner inconsistent with Exemption 5, the Appellant also argued that even assuming portions of the documents are in fact subject to the deliberative process privilege, there was information in the redacted portions that could have been released. An examination of the contents of the emails revealed that any potentially releasable portions of the emails at issue were inextricably intertwined with the Exemption 5 protected information such that segregation is not possible.

The Appellant argued that the DOE did not state with particularity the foreseeable harm that would result if the redacted portions were released. In making the argument, the Appellant cited cases where courts were tasked with determining whether the agency appropriately applied the FOIA exemptions based on items like affidavits and Vaughn indices. Agencies are not required to provide items like affidavits and Vaughn indices when initially responding to FOIA requests. Given the nature of the potential harm to the decision-making process that could occur when those providing advice may be inhibited if their frank opinions could be made public, OHA found that the DOE met the foreseeable harm standard. OHA Case No. FIA-22-0014