NOTICE ********************************************************* NOTICE ********************************************************* This document was originally prepared in Word Perfect. If the original document contained-- * Footnotes * Boldface & Italics --this information is missing in this version The document format (spacing, margins, tabs, etc.) is changed too. If you need the complete document, download the Word Perfect version. For information about downloading documents (FTP) see file how2ftp. File how2ftp (.txt & .wp) is in directory /pub/Bureaus/Miscellaneous/Public_Notices/ ***************************************************************** ******** [FOR RECORD ONLY] $// Applic. for Review, Kay, FOIA No. 95-385, FCC 96-127 //$ $/ 0.457 Records not routinely available for public inspection /$ $/ 0.469 Advance payments /$ Before the FEDERAL COMMUNICATIONS COMMISSION FCC 96-127 Washington, D.C. 20554 In the Matter of ) ) JAMES A. KAY, JR. ) ) FOIA Control No. 95-385 on Request for Inspection ) of Records ) MEMORANDUM OPINION AND ORDER Adopted: March 21, 1996; Released: March 25, 1996 By the Commission: 1. The Commission has under its consideration an application for review filed February 27, 1996, by James A. Kay, Jr. (Kay), seeking review an initial Freedom of Information Act (FOIA) decision entered by the Deputy Associate Bureau Chief of the Wireless Telecommunications Bureau (Bureau or WTB) on February 7, 1996. The Bureau's decision withheld from public disclosure certain agency documents relating to the investigation of and hearing concerning Kay's land mobile licenses. For the reasons discussed herein, we deny Kay's application for review. Background 2. Kay's FOIA request sought all documents relating to allegations raised in the Order to Show Case, Hearing Designation Order and Notice of Opportunity for Hearing for Forfeiture, 10 FCC Rcd 2062 (1994) (Show Cause/HDO), in which the Commission ordered Kay to show cause why his private land mobile licenses should not be revoked or cancelled, why he should not be ordered to cease and desist from violations of the Communications Act, and why an order for forfeiture should not be issued, and designated these matters for a hearing before an Administrative Law Judge. Kay also sought all correspondence between 105 named individuals and businesses and the Commission concerning facilities owned by Kay. 3. The Bureau requested prepayment of the FOIA fees that would be incurred in responding to this request. Kay pre-paid $2,000 toward the cost of performing the search and copying documents sought in his FOIA request. The Bureau then conducted an extensive search in response to Kay's request. It released 650 documents on February 7, 1996. WTB Letter Decision, at 4. The Bureau withheld witness statements concerning Kay's activities and records compiled for law enforcement purposes pursuant to FOIA Exemption 7(A) because release "would reveal the direction of the Commission's ongoing investigation, which could reasonably be expected to interfere with that investigation." Id. at 2, citing in a footnote Kay v. FCC, 867 F. Supp. 11 (D.D.C. 1994). The Bureau further explained that "[a]dvance access to witnesses' statements could have a chilling effect on potential investigatory sources and allow avoidance of the Bureau's case." Id. The Bureau indicated that it expected these statements would become available during the hearing in the Show Cause/HDO proceeding. Id. Finally, the Bureau withheld other documents pursuant to FOIA Exemption 5. The Bureau is continuing to search for additional documents in response to Kay's FOIA request. 4. On review, Kay contends that a Vaughn index should be furnished for all records the Bureau claimed were exempt under Exemption 7. Kay also challenges the fees assessed for the search, review, and duplication costs incurred in responding to his FOIA request. He seeks specific information concerning the employees who worked on the response. Decision 5. We shall deny the application for review. Kay is not entitled to a Vaughn index at the administrative level, or when Exemption 7(A) is invoked to withhold documents. Moreover, the Bureau adequately described the documents withheld, which consist of exhibits, other materials, and witness statements gathered or prepared for the hearing in the Show Cause/HDO proceeding. The Bureau was not required to provide Kay with a more detailed description of the documents, which would interfere with the Bureau's efforts in the Show Cause/HDO hearing. 6. Kay also provides no support for his claim that the fees assessed thus far in this proceeding are "excessive." We decline to provide the details he seeks concerning the employees who performed the FOIA search. The Bureau specified the number of hours expended by Commission employees, and the grade and/or hourly rate of pay of each employee. WTB Letter Decision, at 3 n.3. No further information is required. 7. Accordingly, IT IS ORDERED that Kay's January 11, 1996 Application for Review is DISMISSED as both premature and moot, and Kay's February 27, 1996, Application for Review is DENIED. Judicial review of this action may be sought pursuant to 5 U.S.C.  552(a)(4)(B). 8. The Officials responsible for this action are the following Commissioners: Reed E. Hundt, Chairman, James H. Quello, Andrew C. Barrett, Rachelle B. Chong and Susan Ness. FEDERAL COMMUNICATIONS COMMISSION William F. Caton Acting Secretary