Summary of Decisions - November 11, 2024 - November 15, 2024

FOIA Appeal (FIA)

FOIA Appeal: Adequacy of Search, Denied

On November 15, 2024, the Office of Hearings and Appeals (OHA) denied a Freedom of Information ( FOIA) appeal filed by Informed Consent Action Network (Appellant) from a determination letter issued by the Department of Energy (DOE), Office of Public Information (OPI) The Appellant submitted a FOIA request seeking records of communications made by a former DOE employee, during a two - year period, and which contained the terms "geoengineering," "solar radiation modification," " stratospheric aerosol injection," "stratospheric aerosols," " SAI," "SRM," and/or "climate intervention. After contacting the DOE office most likely to contain response records, the DOE determined it was no longer in possession of any data related to the request and no responsive records were located . The Appellant challenged the adequacy of the DOE's search. After reviewing the appeal, OHA concluded that the DOE properly determined that responsive records were no longer maintained or retained by the DOE and therefore, performing no search was the reasonably calculated search required by FOIA. Accordingly, the Appellant's appeal was denied. (OHA Case No. FIA-25-0007)

Personnel Security Hearing (PSH)

Access Authorization Restored; Guideline J (Criminal Conduct)

On November 13, 2024, an Administrative Judge determined that an Individual's access authorization should be restored under 10 C.F.R. Part 710. The Individual was arrested and charged with Publish / Threat to Publish Intimate Visual Material in March 2023 after he shared an explicit photo of his wife with his wife's affair partner during a dispute between the Individual and the wife's affair partner over the status of the Individual's relationship with his wife. The Individual pleaded guilty to a reduced charge and he and his wife subsequently divorced. At the hearing, the Individual provided evidence that his 2023 offense was an isolated lapse of judgment and expressed remorse for his conduct. The Administrative Judge concluded that the Individual had resolved the security concerns and that the Individual's access authorization should be restored. (OHA Case No. PSH-24-0151, Harmonick)

Access Authorization Not Granted; Guideline E (Personal Conduct); Guideline F (Financial Considerations)

On November 13, 2024, an Administrative Judge (AJ) determined that an Individual's access authorization should not be granted under 10 C.F.R. Part 710. In June 2023, the Individual submitted a Questionnaire for National Security Positions (QNSP). Through the investigation, the DOE Local Security Office (LSO) became aware of (1) eight outstanding delinquent financial debts owed by the Individual; (2) two civil court actions filed against the Individual in 2014 and 2017 for money owed; and (3) his failure to file and pay federal and state income taxes, in particular his failure to file his 2022 federal income tax return, his failure to file his 2022 state income tax return, and his failure to pay 2021 federal income tax liability. The Individual in the 2023 QNSP had also failed to disclose the civil court actions and his tax issues. The LSO found that the Individual's personal conduct and financial issues created a substantial doubt regarding his eligibility to hold a security clearance. After the hearing, the AJ determined that the LSO appropriately invoked Guidelines E and F and that the Individual had not put forth sufficient evidence to resolve the security concerns. Among other things, the AJ determined that the Individual had deliberately omitted his tax issues and civil court actions from the June 2023 QNSP and failed to begin to resolve his outstanding delinquent financial obligations until after applying for access authorization. Accordingly, the AJ concluded that the Individual's access authorization should not be granted. (OHA Case No. PSH-24-0136, Fishman)

Access Authorization Restored; Guideline G (Alcohol Consumption), Guideline E (Personal Conduct)

On November 14, 2024, an Administrative Judge with the Department of Energy's (DOE) Office of Hearings and Appeals determined that the Individual's access authorization should be restored under 10 C.F.R. Part 710. The Individual voluntarily entered an inpatient treatment program to receive treatment for alcohol abuse issues. After being discharged from the inpatient program, the Individual completed a Letter of Interrogatory (LOI) and was evaluated by a DOE consultant psychologist, who diagnosed the Individual with Alcohol Use Disorder (AUD), Severe. The Individual's LOI responses and AUD diagnosis raised security concerns under Guidelines G and E of the Adjudicative Guidelines . After a hearing, the Administrative Judge found that the Individual provided sufficient evidence of actions taken to overcome his AUD and he demonstrated a clear and established pattern abstinence from alcohol. The Administrative Judge also found that because the Individual took sufficient actions toward resolving his AUD, the concerns raised by his dishonesty in his LOI responses were also mitigated. Therefore, the Administrative Judge found the Individual mitigated the security concerns arising under Guidelines G and E of the Adjudicative Guidelines. (OHA Case No. PSH-24-0131, Fishman)

Access Authorization Denied; Guideline E (Personal Conduct), Guideline F (Financial Considerations)

On November 15, 2024, an Administrative Judge found that an Individual's access authorization should not be granted. The Individual reported several defaulted accounts in his Questionnaire for National Security Positions but failed to list two accounts. When confronted about the accounts by an investigator, the Individual acknowledged them and stated that he had only been able to access a credit report from one of the three reporting agencies when filling out his paperwork. During an evaluation for an unrelated matter, the Individual told a DOE Contractor Psychologist that he was current on all his bills. However, he had not paid his defaulted accounts.

At the hearing, the Individual presented evidence that he had forgotten the two accounts he failed to list and did not intend to mislead investigators. The Psychologist testified that it was possible for the Individual to have interpreted his questions about finances to be referring to bills for which he still received a monthly statement, not defaulted accounts. The Individual credibly testified that this had been the case. However, the Individual was still unable to pay any of his defaulted accounts. The Administrative Judge found that the Individual had mitigated the Guideline E security concerns but had not mitigated the Guideline F concerns, and, accordingly, his access authorization should be denied. (OHA Case No. PSH-24-0167, Martin)