Summary of Decisions - November 18, 2024 - November 29, 2024

FOIA Appeal (FIA)

FOIA Appeal: Adequacy of Search, Denied

On November 27, 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 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 After reviewing the appeal, OHA concluded that the DOE properly determined that responsive records were no longer maintained or retained by the DOE and therefore, performing no search was the reasonably calculated search required by FOIA.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-25-0009)

Personnel Security Hearing (PSH)

Access Authorization Denied; Guideline F (Financial Considerations)

On November 27, 2024, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should not be granted. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. In August 2023, the Individual completed a Questionnaire for National Security Positions. In response to questions about his financial record, the Individual disclosed that in the prior seven years, he "had an account or credit card suspended, charged off, or cancelled for failing to pay as agreed." He further reported that, in the prior seven years, he had defaulted on a loan and had "bills or debts turned over to a collection agency." An August 2023 credit report showed that the Individual had eleven accounts that had been charged off, totaling $26,921; the Individual had five accounts that were in collections, totaling $ 5,079; and the Individual was 180 days past due to a creditor to which he owed $ 6,161. At the hearing, the Individual testified regarding the history and origins of the debts, and he explained the steps he had taken to attempt to resolve the debts. Ultimately, the Administrative Judge found that the Individual had not yet mitigated the Guideline F security concerns, and she concluded that the Individual's access authorization should not be granted. (OHA Case No. PSH-24-0158, Quintana)

Access Authorization Not Restored; Guideline E (Personal Conduct)

On November 18, 2024, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should not be restored. The Individual is employed by a DOE contractor in a position that requires him to hold a security clearance. The Individual submitted a Questionnaire for National Security Positions (QNSP) in which he failed to disclose that he had received a disciplinary action and had been fired from a prior restaurant job for selling alcohol to an undercover minor, but instead stated in his QNSP and employment application that he had left his job for an internship. He also refused to allow his contractor employer to contact his prior restaurant employer. In addition, a background investigation of the Individual revealed that he had also omitted or provided inaccurate information concerning his criminal offense, his employment start date at a different prior job, and made omissions regarding prior residences. At the hearing, the Individual brought forth information which verified that he had correctly reported his employment start date at his other prior job, thereby showing the allegation did not present a security concern, and he also mitigated the security concern regarding the omission of his temporary residences. However, the Individual did not provide sufficient evidence to mitigate the concerns related to his failure to disclose his disciplinary action and termination from his prior job, and his omission regarding his criminal offense. Therefore, the Administrative Judge determined that the Individual should not be granted access authorization. (OHA Case No. PSH-24-0184, Balzon)

Access Authorization Granted; Guideline B (Foreign Influence); Guideline E (Personal Conduct); Guideline M (Use of Information Technology); Guideline J (Criminal Conduct)

On November 20, 2024, an Administrative Judge determined that an individual's access authorization under 10 C.F.R. Part 710 should be granted. The Individual is a prospective employee of a Department of Energy (DOE) contractor for a position that requires him to hold a security clearance . In a Questionnaire for National Security Positions, the Individual reported past conduct related to downloading pirated materials, illegal drug use and distribution, and foreign travel. He also reported relationships with foreign citizens. The Individual provided additional information in a subsequent Enhanced Subject Interview and Letter of Interrogatory. The Individual's disclosures raised security concerns pursuant to Guidelines B, E, J and M. At the hearing, the Individual testified regarding his foreign contacts, past conduct, and discrepancies in his reporting. Ultimately, the Administrative Judge determined that the Individual mitigated the Guideline B, E, J, and M security concerns, and she concluded that the Individual's access authorization should be granted. (OHA Case No. PSH-24-0185, Quintana)

Access Authorization Restored; Guideline G (Alcohol Consumption)

On November 20, 2024, an Administrative Judge determined that an Individual's access authorization should be restored under 10 C.F.R. Part 710. In late 2023, the Individual reported that he had been hospitalized for treatment related to alcohol use. The Individual was subsequently evaluated by a DOE-contracted psychologist (DOE Psychologist) who diagnosed the Individual with Alcohol Use Disorder, Moderate, in Early Remission, pursuant to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, Text Revision (DSM-5-TR). At the hearing, the Individual testified that he had been abstinent from alcohol for approximately eleven months, had attended counseling and classes through the Employee Concerns Program at his worksite, and had been regularly attending SMART Recovery meetings. He additionally provided documentary evidence to support his testimony. The DOE Psychologist opined that the Individual had established rehabilitation and reformation from the Alcohol Use Disorder with a good prognosis. After considering all the evidence presented, the Administrative Judge concluded that the Individual had resolved the Guideline G concerns and his access authorization should be restored. (OHA Case No. PSH-24-0145, Quintana)

Access Authorization Restored; Guideline G (Alcohol Consumption)

On November 21, 2024, an Administrative Judge determined that the Individual's access authorization under 10 C.F.R. Part 710 should be restored. The Individual submitted a Questionnaire for National Security Positions (QNSP) in May 2023, disclosing that he was attending treatment with a psychologist for issues including alcohol abuse. He also disclosed that in 2017, his physician recommended that he decrease his alcohol consumption due to health concerns. The Individual was subsequently evaluated by a DOE-contracted psychiatrist (DOE Psychiatrist) who determined that the lndividual met sufficient diagnostic criteria for Alcohol Use Disorder, Mild under the Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition and binge consumed alcohol to the point of impaired judgment. At the hearing, the Individual testified that he had been abstinent for six months and submitted several negative PEth tests to support his assertions. He also submitted proof that he was attending weekly recovery meetings. The Individual testified that he was also participating in weekly psychotherapy sessions to address issues that include his previous alcohol use and he was supplementing his weekly therapy sessions with monthly meetings with his Counselor, whom he had been seeing since 2022. The Individual's Counselor opined that the Individual had a good to excellent prognosis and the Individual's wife and his Counselor also provided credible testimony regarding the Individual's changes in behavior and perspective as compared to his previous attempts at sobriety . The DOE Psychiatrist opined that although the Individual had not completed all of his recommendations, he had shown adequate evidence of rehabilitation and reformation through his combined efforts of weekly treatment and therapy, proof of abstinence, and positive behavioral changes which were corroborated by his witnesses' testimony. He also opined that the Individual had a good prognosis. The Administrative Judge concluded that the Individual had mitigated the concerns under Guideline G, and therefore his clearance should be restored. (OHA Case No. PSH-24-0135, Balzon)

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

On November 22, 2024, an Administrative Judge determined that an individual's access authorization should not be restored under 10 C.F.R. Part 710. The Individual failed to report a wage garnishment within three days, as required by DOE Order 472.2A, and on her Questionnaire for National Security Positions (QNSP). The Individual also failed to report on her QNSP that she had failed to pay federal taxes for tax years 2018 and 2019, and she failed to correct this omission during two subsequent investigatory interviews. Not until responding to a Letter of Interrogatory, eight months after completing the QNSP, did the Individual acknowledge the wage garnishment and delinquent tax filings. As of the hearing, the Individual had still not filed her tax returns for tax years 2018 and 2019, and had made little progress in doing so. The Administrative Judge concluded that the Individual had not mitigated the concerns under Guideline E or Guideline F, and therefore her clearance should not be restored. (OHA Case No. PSH-24-0166, Rotman)

Access Authorization Restored; Guideline G (Alcohol Consumption)

On November 22, 2024, 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 suspended the Individual's security clearance after it discovered his employer placed him on administrative leave for testing positive on a random Blood Alcohol Test and a DOE consultant psychologist determined that he met the diagnostic criteria for Alcohol Use Disorder, mild, without evidence of rehabilitation or reformation.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline G . The AJ also determined that the Individual put forth sufficient evidence to resolve the Guideline G security concerns. Accordingly, the AJ concluded that the Individual's access authorization should be restored (OHA Case No. PSH-24-0147, Thompson III)

Access Authorization Not Restored; Guideline G (Alcohol Consumption); Guideline E ( Personal Conduct)

On November 26, 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 regarding the Individual's alcohol consumption and personal conduct. Although the Individual had taken action to address his maladaptive alcohol consumption, the Individual had not been abstinent for twelve months, and therefore, failed to mitigate the stated Guideline G concerns. Further, although it was determined that some of the stated Guideline E concerns did not, in fact, raise a concern under Guideline E of the Adjudicative Guidelines, the Individual failed to mitigate two of the Guideline E concerns. (OHA Case No. PSH-24-0168, Rahimzadeh)

Access Authorization Not Granted; Guideline F (Financial Considerations)

On November 26, 2024, an Administrative Judge (AJ) determined that an Individual should not be granted access authorization under 10 C.F.R. Part 710. The DOE Local Security Office (LSO) suspended the Individual's security clearance application after it determined that the Individual had several delinquent financial accounts and failed to take action to resolve them.

At the conclusion of the hearing, the AJ determined that the LSO appropriately invoked Guideline F . The AJ also determined that the Individual did not put forth sufficient evidence to resolve the Guideline F security concerns because the Individual failed to take any action to resolve the majority of his delinquent accounts. Accordingly, the AJ concluded that the Individual should not be granted access authorization. (OHA Case No. PSH-24-0165, Thompson III)