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KAY v. FCC

November 8, 1994

JAMES A. KAY, JR., d/b/a SOUTH-LAND COMMUNICATIONS, et al., Plaintiffs,
v.
FEDERAL COMMUNICATIONS COMMISSION, Defendant.



The opinion of the court was delivered by: CHARLES R. RICHEY

 UNITED STATES DISTRICT JUDGE

 INTRODUCTION

 The Plaintiffs brought this action pursuant to the Freedom of information Act ("FOIA"), 5 U.S.C. § 552 (1988) seeking to compel the release of records pertaining to a pending Federal Communications Commission ("FCC") investigation of Plaintiff James A. Kay, Jr., the purpose of which is to determine whether Kay has violated various sections of the FCC's rules regarding the number of customers he serves, and whether he has made misrepresentations in applications and correspondence to the FCC.

 The Plaintiffs also move for partial summary judgment, requesting disclosure of at least certain portions of the withheld documents on the ground that the FCC's actions were arbitrary and capricious as a matter of law. The Plaintiffs further seek a determination that they are entitled as a matter of law to attorneys' fees.

 Upon consideration of the papers filed by both parties, the applicable law, and the entire record in this case, the Court determines that the Defendant's Motion for Summary Judgment shall be granted, and the Plaintiffs' Motion for Partial Summary Judgment shall be denied.

 In particular, the Court finds that the FCC may properly withhold the requested documents pursuant to Exemption 7(A). Accordingly, the Court further finds that no genuine issue of material fact exists and that the Defendant is entitled to judgment as a matter of law. Finally, the Court declines to make any determination with respect to attorneys' fees at this juncture, and shall reserve that question for future proceedings.

 BACKGROUND

 By letter of January 16, 1994, James A. Kay, Jr. requested from the FCC all letters, dated from January 1, 1993 to the present, which had been received by the FCC offices at Gettysburg, Pennsylvania, and the Field Operations Bureau and/or Private Radio Bureau offices in Washington, D.C., from two sources: (1) "Pick," a denomination referring to Harold Pick, Gerald Pick, Computer Consultants and Systems, CCS, Lance Hardy Best, and William Drareg & Associates, collectively; and (2) "Carrier," a denomination referring to Christopher "Chris" Killian d/b/a Carrier Communications, Carrier Communications, incorporated. Kay further requested any and all reply letters, relevant files, notes, memorandum or other written material, and any and all telephone logs or notes regarding communications to or from "Pick" or "Carrier."

 By letter dated February 16, 1994, Dennis C. Brown, Esquire, of Brown and Schwaninger, requested that the FCC permit his firm to inspect any and all complaints, letters, reports, memoranda, or notes submitted to the FCC by any person from January 2, 1992 to date, with respect to the activities of James A. Kay, Jr.

 In a separate letter also dated February 16, 1994, Mr. Brown requested that the FCC permit his firm to inspect all notes, records, and/or memoranda of any contact between the staff of the Private Radio Bureau and any number of named persons from January 2, 1992 to date, all records of the identities of visitors to the FCC's Gettysburg office during that period, the documents referred to by Harold Pick in a certain letter, and any information that might confirm the existence of an ex parte contact between certain individuals and the FCC staff regarding a restricted proceeding involving Kay.

 By letter dated March 11, 1994, Kay requested review of the FOIA denial, and by letter dated March 22, 1994, Mr. Hollingsworth responded to Mr. Brown regarding his FOIA requests. Mr. Hollingsworth denied access, pursuant to 5 U.S.C. § 552(b)(5), to certain inter- and intra-agency notes and memoranda and, pursuant to 5 U.S.C. § 552(b)(7)(D), to a complaint filed with the FCC. Ms. Joan Hobbs of Brown and Schwaninger's Gettysburg Office was given access to all other responsive documents, and Mr. Brown was advised that Ms. Hobbs would be provided with any other such documents which may surface.

 By letter of April 4, 1994, Mr. Brown requested review of the FCC's denial of his FOIA request, and sought an index pursuant to Vaughn v. Rosen, 157 U.S. App. D.C. 340, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977, 39 L. Ed. 2d 873, 94 S. Ct. 1564 (1974), for all information withheld.

 On May 19, 1994, the Plaintiffs filed a Complaint with this Court, seeking judicial review of the FCC's withholding of certain information responsive to their requests, as well as attorneys' fees and costs. At a status conference held on June 17, 1994, a package containing approximately 100 additional pages of material was released to Mr. Brown in further response to the FOIA requests at issue here.

 More than 1,000 pages of information not deemed potentially harmful to the pending investigation have previously been released to the Plaintiffs. At the time of the filing of the Defendant's Motion, the FCC was withholding from the Plaintiffs a total of 313 pages in full and 9 pages in part. *fn2"

 The Defendant submits that the purpose of the investigation is to determine whether Kay violated the Commission's Rules by, first, using an incorrect number of frequencies than that to which he is entitled in view of the number of mobiles (customers) he serves and, second, by making misrepresentations in applications and correspondence to the FCC. Wypijewski Decl. PP 15-16.

 The Defendant asserts that none of the material that continues to be withheld contains reasonably segregable information that can be disclosed without jeopardizing the very interest that Exemption 7(A) was enacted to protect. The Defendant further asserts that, as formal FCC proceedings progress and it becomes appropriate to reveal certain aspects of the investigation to Kay, the FCC will promptly disclose information for which Exemption 7(A) is no longer appropriate and to which no other FOIA exemption applies.

 DISCUSSION

 I. THE COURT FINDS THAT EXEMPTION 7 OF THE FOIA PROTECTS THE FCC FROM MANDATORY DISCLOSURE OF THE WITHHELD DOCUMENTS

 The FOIA affords broad disclosure of governmental records to "ensure an informed citizenry, vital to the functioning of a democratic society." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S. Ct. 2311, 2327, 57 L. Ed. 2d 159, 178 (1978). As "harm could result from a sweeping disclosure requirement in some areas," however, Congress included nine exemptions which allow agencies to deny requests for certain information. Birch v. United States Postal Service, 256 U.S. App. D.C. 128, 803 F.2d 1206, 1208-09 (D.C. Cir. 1986) (citing 5 U.S.C. § 522 (b)(1)-(9) (1982)). The agency bears the burden of establishing a "'relatively detailed justification' for assertion of an exemption, and must demonstrate to a reviewing court that records are clearly exempt." Id. (citing Mead Data Central, Inc. v. United States Dep't ...


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