FOIA Appeal (FIA)

FOIA; Denied in part, Granted in part

On November 21, 2022, the Office of Hearings and Appeals (OHA), granted in part, the Freedom of Information Act (FOIA) appeal filed by America First Legal Foundation (Appellant). The Appellant appealed a final determination issued by the Department of Energy's Office of Public Information on September 30, 2022, which indicated it withheld portions of a responsive document under Exemption 5; specifically, the deliberative process privilege and determined disclosure of the redacted records is not in the public interests because foreseeable harm would result from such disclosure.

In the appeal, the Appellant argued the redacted material is not protected under the deliberative process privilege because they requested a final report, which was neither pre -decisional nor deliberative. The Appellant also argued that even if the document was pre -decisional and deliberative, other federal agencies have released similar records in response to FOIA requests, so no identifiable harm would result from the DOE disclosing the redacted document in full. Lastly, the Appellant argued the DOE did not take any steps to segregate and release nonexempt information.

After reviewing the redacted material in the records, OHA found the redacted records were created by a committee within the Department of Energy (DOE) and contained the committee's findings and recommendations regarding whether underserved communities may face barriers in accessing DOE programs. OHA found the redacted records were predecisional because they were created before the DOE published its list of final priorities from the report, did not draw any conclusions, did not contain a statement of policy, and did not direct whether the committee's findings should be acted upon. OHA also found the redacted records were deliberative in nature because they reflected the analyses of different teams within the committee, the processes used by the committee and the recommendations were used by the DOE Secretary's Advisor to determine what information contained in the records should be included in the DOE's final statement of policy.

OHA also determined it is foreseeable that release of the redacted material would cause harm because it would likely have a chilling effect on the ability of DOE officials to have open and candid discussions about possible deficiencies in DOE's programs. Lastly, OHA determined that there were two portions of the redacted records that contain non -exempt material that could be segregated from the rest of the responsive document and disclosed to the Appellant.

Accordingly, the Appellant's appeal was remanded in part to the DOE OPI, to issue a new determination letter in accordance with the decision's instructions. (OHA Case No. FIA-23-0002)

FOIA; Appeal Dismissed in Part, Denied in Part

On November 21, 2022 the Office of Hearings and Appeals (OHA) dismissed in part and denied in part the Freedom of Information (FOIA) Appeal filed by Advocates for the West (Appellant) from two partial response letters from the Bonneville Power Administration (BPA). On Appeal, the Appellant argued that BPA had improperly withheld records under FOIA Exemption 5.

The Third Partial Response Letter was received by the Appellant on June 28, 2022. This Appeal was filed on October 28, 2022, more than 90 calendar days after the Appellant received the Third Partial Response Letter. Therefore, the Appeal from the Third Partial Response Letter is not timely, and we dismiss it.

The Appellant argued (1) that BPA improperly withheld communications from a contractor; (2) that BPA failed to provide sufficient explanations for redactions; (3) that BPA's redacted information that was not pre-decisional and deliberative; and (4) that BPA failed to show how releasing the redacted records would cause foreseeable harm. First, BPA properly withheld some communications with the contractor Kintama because Kintama was providing BPA with opinions and recommendations about issues faced by BPA and was not advancing opinions that were "necessarily adverse" to competitors. As to the second and fourth arguments, we are unaware of any requirement for an agency to provide a requestor with specific rationales for redactions or explain foreseeable harm in an initial response to a FOIA request. Finally, as to the third argument, the withheld records were both pre -decisional and deliberative because the records contained recommendations and viewpoints about ongoing projects within BPA. Therefore, BPA properly withheld records from the Fourth Partial Response Letter under Exemption 5. (OHA Case No. FIA-23-0001)

Personnel Security Hearing (PSH)

 Access Authorization Restored; Guidelines G and I

On November 22, 2022, an Administrative Judge (AJ) determined that the Individual's access authorization under 10 C.F.R. Part 710 should be restored.  After the Individual's alcohol -related domestic violence arrest was reported to a local security organization, a DOE Psychologist found that the Individual was engaging in binge drinking and diagnosed her with Adjustment Disorder (AD) with symptoms of anxiety and emotional dysregulation, which she concluded impaired the Individual's stability and judgment.

However, the evidence in the record convinced the AJ that the Individual had complied with the Psychologist's treatment recommendations for her binge drinking by consuming alcohol in moderation for nine months, and by attending individual counseling, anger management classes, domestic violence classes, and an early recovery program. The Individual had documented her use of alcohol in moderation through the testimony of her and her husband, and through the submission of corroborating laboratory reports.

However, the evidence in the record convinced the AJ that the Individual had resolved the security concerns raised by her AD by submitting a letter from her treating therapist stating that her "previous diagnosis of Adjustment Disorder has been resolved" and though the Psychologist's concurrence with this conclusion during her hearing testimony.

The Administrative Judge therefore concluded that the Individual's access authorization should be restored. (OHA Case No. PSH-22-0117, Fine)

Access Authorization Denied; Guideline E (Personal Conduct) and Guideline J (Criminal Conduct); Bond Amendment

On November 22, 2022, an Administrative Judge determined that an individual's access authorization should be denied under 10 C.F.R. Part 710. The Individual applied for employment with a DOE contractor, for a position that requires him to hold a security clearance. During an investigation the Local Security Office (LSO) received derogatory information regarding the Individual that raised security concerns under Guidelines E and J of the Adjudicative Guidelines and was subject to the Bond Amendment.

Regarding Guideline E, the LSO citied the following conduct: the Individual's use of multiple names and social security numbers, concurrently and without legal name changes; the Individual's dishonorable discharge from the military after being convicted of multiple charges via court martial; the Individual's provision of false and misleading information regarding his separation from the military during the investigative process; the Individual's marriage to two women at the same time and his provision of conflicting information regarding both marriages; the Individual's provision of false and misleading information on his application for employment with the DOE contractor; and an investigation of the Individual for illegal banking transactions by the military branch of the Office of Special Investigations. Regarding Guideline J, the LSO cited the Individual's conviction, by military court martial, of multiple charges and sentencing to three years imprisonment.

At the hearing, the Individual admitted that he lives using multiple names and has two social security numbers; he stated he uses different names for different purposes. The Individual stated that his marriage to his first wife was invalid, and he was forced to marry his second wife. The Individual also argued his court martial was invalid because the panel that presided over his trial was improperly constituted, and his attorney failed to submit necessary information.

After considering the evidence in the record and the testimony presented at the hearing, the Administrative Judge determined that the Individual had not provided sufficient evidence to resolve the security concerns associated with Guideline E, Guideline J. She also determined that the Individual was disqualified from holding a security clearance pursuant to the Bond Amendment. Accordingly, she concluded that the Individual's access authorization should not be granted. OHA Case No. PSH- 22-0127 (Katie Quintana)