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                            Before the
               FEDERAL COMMUNICATIONS COMMISSION
                    Washington, D.C.  20554


    In the Matter of)
     )
    JAMES A. KAY, JR.)FOIA Control No. 96-387
      )
   on Request for Inspection )
   of Records                    )



                   MEMORANDUM OPINION AND ORDER

     Adopted:   June 13, 1997;    Released:   July 25, 1997

     By the Commission:

     
A  The Commission has under its consideration an application for review filed February 26,
1997, by Barry A. Friedman on behalf of James A. Kay, Jr. (Kay), seeking review of an initial
Freedom of Information Act (FOIA) decision entered by the Assistant for Management, Office
of Managing Director (OMD) on February 3, 1997.  For the reasons discussed herein, we
affirm OMD's decision.

     Background

     1.  Kay's FOIA request sought copies of individual pages from any log or index of
incoming mail from January 1, 1991, to the present, maintained by the Commissioners or
Administrative Law Judge (ALJ) Sippel showing receipt of letters (a) concerning Kay or WT
Docket No. 94-147, or (b) from Harold Pick, Gerard Pick, Annedore Pick, Frank Vito
DeMarzo, or Communications Consultants & Systems (CCS).  Kay also sought copies of any
Commission procedures for handling correspondence addressed to Commissioners or ALJs.  

     2.  In response to the FOIA request, the Commissioners and ALJ Sippel were asked to
search their offices for records responsive to Kay's request.  ALJ Sippel declined to provide
copies of his case log for WT Docket No. 94-147 because such logs are work papers exempt
from disclosure pursuant to 47 C.F.R.  0.457(e).  The ALJ also indicated that he searched
the case log, finding that he had received only letters that were sent by and among counsel for
parties to the proceeding, including Kay's counsel, and that there were no letters from the
Picks, De Marzo, or CCS.  Finally, the ALJ indicated that other than relevant Commission
rules, e.g., the ex parte  provisions at 49 C.F.R.  1.1212, there were no procedures for
processing correspondence received by ALJs.  In response to the FOIA request, the OMD
subsequently notified Kay that neither ALJ Sippel nor the Commissioners could locate any
documents responsive to Kay's request.

     3.  Kay sought review of the OMD Letter.  Kay questions the sufficiency of the search
of the record keeping of the Commissioners and the ALJ.  He points to one document, a 1993
letter from Congressman Henry A. Waxman to then Acting Chairman James A. Quello, that
Kay claims would undoubtedly be referred to in any correspondence log or index.  Kay also
points to an undated letter to ALJ Sippel signed by Annedore Pick on her husband Harold
Pick's stationery, which he asserts contradicts the ALJ's assertion that he had no record of
letters from the Picks.  Kay seeks a review of the files to confirm no other documents exist.

     Decision

     4.  Kay's initial FOIA request sought "copies of those individual pages from any log or
index of incoming mail" to the Commissioners or the ALJ.  Thus, we must determine if such
logs or indexes exist, and, if so, whether there are entries reflecting correspondence
concerning Kay or WT Docket No. 94-147 or correspondence from the Picks, DeMarzo, or
CCS.  After further review of records by the four Commissioners' offices and ALJ Sippel, no
responsive documents were found, and we affirm the OMD's decision.

     5.  Chairman Hundt's office reviewed its correspondence records and found no
references to Kay, WT Docket No. 94-147, the Picks, De Marzo, or CCS.  Commissioner
Quello does not maintain correspondence logs, and therefore has no records responsive to the
FOIA request.  Commissioner Ness's office maintains only a log of congressional
correspondence, and found no entries on the log responsive to the FOIA request.  Finally,
Commissioner Chong's office maintains a log of letters it receives, but a search of that log did
not reveal any documents responsive to the FOIA request.  Thus, OMD correctly concluded
that no Commissioner has any records responsive to the FOIA request.

     6.  ALJ Sippel maintains a case log for WT Docket No. 94-147.  This log is exempt
from disclosure under FOIA Exemption 5 because it represents the ALJ's work product. 
However, as a matter of our discretion, a review of the log was performed and it contained no
entries responsive to the FOIA request, including the Annedore Pick letter referred to by Kay
in his appeal.  ALJ Sippel's denial of the FOIA request, adopted in the OMD Letter, was
therefore also correct.
     
     7.  Accordingly, IT IS ORDERED that Kay's 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:  
Chairman Hundt, Commissioners Quello, Chong, and Ness.


     FEDERAL COMMUNICATIONS COMMISSION
     


     William F. Caton
                         Acting Secretary