FOIA Appeal

Freedom of Information Act (FOIA) Appeal; Appeal Denied; Expedited Processing

On October 23, 2020, the Office of Hearings and Appeals (OHA) denied a Freedom of Information Act (FOIA) Appeal filed by Mensur Omerbashich from a letter of receipt issued by the National Nuclear Security Administration (NNSA), denying his request for expedited processing. In the original request, the Appellant stated that the NNSA has a paucity of employees in the fields of engineering and science, and as a result, the NNSA's refusal to hire   the "best candidates" for such positions threatens the lives of millions of people within and without the United States by jeopardizing the national security of the country. On Appeal, he further stated his request was misunderstood by the FOIA officer, in that the failure to hire the "obviously best candidates" for the advertised position would result in posing an imminent threat to "hundreds of millions of people," and accordingly, the harm would not be particular     to just one individual. Although the Appellant's request concerns the activities of the federal government, the hiring of federal employees, the Appellant has not satisfied the first two factors of the aforementioned "urgency to inform" test. Accordingly, the appeal was denied. OHA Case No. FIA-21-0001

Personnel Security Hearing 

Personnel Security; Access Authorization Not Granted; Guideline I (Psychological Condition)

On October 23, 2020, an Administrative Judge determined that an Individual's access authorization should not be granted under 10 C.F.R. Part 710. The Individual is employed by   a DOE contractor and is an applicant for security clearance. The DOE obtained information that the Individual met the diagnostic criteria for Autism Spectrum Disorder under the DSM-5; that a contractor DOE Psychologist determined that the condition impaired the Individual's judgment, reliability, or trustworthiness; and the Individual was previously hospitalized for mental health treatment.

At the conclusion of the hearing, the Administrative Judge found that the information presented by the DOE justified the LSO's invocation of Guideline I. Next, the Administrative Judge found that the security concerns associated with Individual's prior hospitalization were mitigated because (1) the Individual's inpatient treatment and hospitalization occurred when the Individual was a minor, (2) there is no indication in the record that the emotional issues    that led to the Individual's hospitalization have reoccurred for many years, and (3) the Individual's Psychiatrist opined that the Individual is stable and has a positive prognosis.

The Administrative Judge then found that the Individual had not mitigated the remaining psychological concerns related to his Autism Spectrum Disorder because (1) the DOE Psychologist opined at the hearing that the Individual's condition is chronic and placed him at   risk of inadvertently compromising security; (2) absent the testimony of the Individual's Psychologist, critical questions concerning the Individual's progress and status remained unanswered; (3) the Individual's testimony raised doubts about his progress in learning appropriate social interactions, and (4) the Administrative Judge remained concerned that the Individual did not possesses sufficient social discernment and abstract thinking skills to act with the judgment and reliability required of a security clearance holder.

Accordingly, the Administrative Judge found that while the Individual mitigated the security concerns related to his inpatient treatment for a psychological condition, he did not mitigate the Guideline I security concerns associated with his Autism Spectrum Disorder. Accordingly, the Administrative Judge concluded that the Individual should not be granted access authorization. OHA Case No. PSH-20-0066 (James P. Thompson III).

Whistleblower Hearing 

In the matter of Erik DeBenedictis; Complaint Denied; Abuse of Authority

On October 22, 2020, the Office of Hearings and Appeals (OHA) denied the complaint filed by Mr. Erik DeBenedictis against National Technology and Engineering Solutions of Sandia,  LLC (NTESS), under the Department of Energy's (DOE) Contractor Employee Protection Program, 10 C.F.R. Part 708. In his complaint, Mr. DeBenedictis alleged that he made a protected disclosure of abuse of authority by disclosing, to an NTESS vice president, that (1) management improperly referred him to NTESS's Security Incident Management Program ( SIMP) because of an allegation that he had export-controlled documents on his home computer and (2) the referral was an attempt to intimidate him or to obtain ownership of intellectual property as opposed to being based on a legitimate security concern. The Administrative Judge found that Mr. DeBenedictis presented insufficient evidence to support his assertion that he made protected disclosures because he failed to prove that he reasonably believed NTESS acted arbitrarily or capriciously when it referred him to SIMP, and he failed to demonstrate that he reasonably believed the SIMP referral adversely affected  his rights or resulted in personal gain or advantage to another. Accordingly, the Administrative Judge found that Mr. DeBenedictis's failure to prove by a preponderance that he made a protected disclosure precluded a finding that NTESS had retaliated against him.

Accordingly, the Administrative Judge denied the complaint. OHA Case No. WBH-20-0003 (James P. Thompson III).