Case No. VSZ-0429 (OHA April 27, 2001)
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* The original of this document contains information which is subject to withholding from disclosure under 5 U.S.C. 552. Such material has been deleted from this copy and replaced with XXXXXXX’s.
April 27, 2001
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Office of Chief Counsel
Department of Energy
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FAX: XXXXXXXXXXXXXXXXXX
Re: Case No. VSZ-0429
Dear XXXXXXXXXXXXXXXXX:
On April 26, 2001, the Office of Hearings and Appeals received your Interlocutory Appeal of an Office of Hearings and Appeals (OHA) Hearing Officer ruling in Case No. VSO-0429. In that ruling, the Hearing Officer determined that, at the request of an individual seeking an access authorization, he would permit a member of the local press to attend a portion of a personnel security administrative review hearing. Specifically, the press attendee would be permitted to be present for testimony of a personnel security division analyst and that of the DOE consultant psychiatrist.
As a rule, OHA does not favor interlocutory appeals, although we may consider them in cases in which irreparable harm would occur in the absence of immediate relief. This principle is based on well settled law. E.g., Carson v. American Brands, Inc., 450 U.S. 79 (1981); I.A.M. National Pension Fund Benefit Plan A v. Cooper Industries, Inc., 789 F.2d 21 (D.C. Cir. 1986).
You maintain that the Hearing Officer abused his discretion in his ruling, and further that the Office of Security Affairs (OSA) would be irreparably harmed if the press were permitted to be present at this hearing. You therefore believe that an interlocutory appeal is appropriate in this case. In support of this position, you state that “in assuming hearing officer functions, the OHA did not receive authority to abrogate overlying OSA policies and processes which are grounded in privacy and the need to conduct closed security hearings to maintain the integrity of the hearing process.”
I see no irreparable harm to the OSA if in this one instance a member of the press is permitted to attend a single hearing. Part 710 regulations specifically permit a Hearing Officer to use his discretion in determining who will be permitted to be present at the personnel security hearing. 10 C.F.R. § 710.26(c). There is no explicit limitation on that discretion that applies to members of the press. Accordingly, the Hearing Officer has the authority to permit the press member to attend, as long as the Hearing Officer does not abuse his discretion.
I also see no harm to OSA, and particularly no irreparable harm. In fact, you cite no specific concern regarding the integrity of the hearing process that must be safeguarded by excluding a member of the press in this case. You describe no express harm to any OSA interests here, and I can discern none. I agree in general that privacy and secrecy interests should always be considered. However, your reference to those interests lacks any specificity, and is thus in my judgment speculative only.
I am not persuaded that the type of general policy arguments that you have raised form an appropriate basis for an interlocutory appeal. I am not declaring that a hearing of this type should never be closed to the public, nor am I saying that these hearings should generally be open to the public. I believe that the concerns involved here and their application in this case should be accorded a more deliberate and thorough review in the context of a request for review filed after the issuance of the Hearing Officer’s Opinion in this case. The effects of the Hearing Officer’s ruling can then be analyzed carefully, with recognition of how that ruling operated in this particular case.
Based on the above considerations, the Interlocutory Appeal is denied. The Office of Safeguards and Security may certainly raise this issue in a request for review with the OHA Director under 10 C.F.R. § 710.28.
Sincerely,
George B. Breznay
Director
Office of Hearings and Appeals
April 27, 2001