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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
--------------------------------------X
ARON KAY,
Plaintiff,
-against-
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
--------------------------------------X
VERIFIED COMPLAINT
JURY TRIAL DEMANDED
Plaintiff, by his attorneys, Levy, Gutman, Goldberg &
Kaplan, respectfully alleges as and for his verified complaint as
follows:
I . JURISDICTION
FIRST: This is an action under the Freedom of Information
Act [FOIA] 5 U. S.C. §552 et. ~   as amended, to order the
production of a single two page document in the possession of the
Defendant Federal Bureau of Investigation.
Plaintiff seeks
declaratory and injunctive relief. This Court has jurisdiction
pursuant to 5 u.s.c. §552 and 28 u.s.c. §1331. Venue is proper
in this district pursuant to 5 u.s.c. §552 a(4) (B) and 28 u.s.c.
§1391.
II. PARTIES
SECOND: Plaintiff is a citizen of the United States,
interested in American history and, i n particular, the
assassination of President John F. Kennedy. Plaintiff resides at
424 Brighton Beach Avenue,. Brooklyn, NY 11235 within the
,,
jurisdiction of this Court.
THIRD: Defendant is an agency of the United States and it
has possession of and control over the record that Plaintiff
seeks.
III. AS AND FOR A CAUSE OF ACTION
FOURTH: On or about February 15, 1992, Plaintiff mailed to
Defendant a request under the Freedom of Information Act for
access to a certain two page FBI teletype dated November 26,
1963. [A copy of the request is annexed as Exhibit A.]
FIFTH: The request was received by Defendant on February
20, 1992. [A copy of the certified mail return receipt is
annexed as Exhibit B.]
SIXTH: Defendant acknowledged receipt of the request
(# 357579) on March 2, 1992. [A copy of the Acknowledgement is
annexed as Exhibit C.]
SEVENTH: More than ten days have passed since Defendant's
receipt of Plaintiff's request and no substantive response of any
kind has been received.
EIGHTH: Plaintiff has a statutory right to the record he
seeks and there is no legal basis for Defendant's refusal to
disclose it to him.
WHEREFORE, Plaintiff prays that this court:
A. Declare that Defendant's refusal to disclose the record
requested by Plaintiff is unlawful;
B. Enjoin Plaintiff from further refusing to disclose the
record to Plaintiff;
2
c. Award Plaintiff his ... costs and reasonable attorney Is
fees in this action;
further and different
relief as this Court may just proper;
Dated: New York, New York
May , 1992
3
Jeremiah S. Gutman
Levy Gutman Goldberg & Kaplan
Attorneys for  
275 7th Avenue, .S1,t:i,te. 1776
''New.       ,...,., ,.,.
(212) 807-9733
)·-'.
STATE OF NEW YORK
)
) ss. :
COUNTY OF
)
ARON KAY, being duly sworn, deposes and says:
I am the Plaintiff in the within action.
I have read the
foregoing   and know the contents thereof, and I know the
same to .. be. true to my own knowledge, except as to ma.tters therein
matters, I believe them to be true.
Sworn to before me this
day of May, 1992
Notary Public
ARON KAY
- . .
,... . ;. . ' .
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------·-x
ARON KAY,
Plaintiff,
- against -
FEDERAL BUREAU OF INVESTIGATION,.
Defendant .
-------------------------------··x
Index No.
92 civ. 2438
(KORMAN)
SUPPLEMENTAL SUMMARY
MEMORANDUM OF LAW
'
Having just been notified em February 8, 1993 that the Court
wishes a status conference on t he afternoon of February 12, 1993,
the und:ersigned attorney for Plaintiff has had occasion only
cursorily to examine Public Law 102-526 [S. 3006] entitled
"Pr esident John F. Kennedy Assctssination Records Collection Act
of 1992
11
• now appearing at 106 Stat. 344 3 , 11 u.s . Code
Congressional & Administrative   January , 1993.
The Senate
Report appears at 11(A) u.s. Code Congressional & Administrative
News 2965 (January, 1993).
The President John F. Kennedy Assassination Records
Collection of Act of 1992 (Records Collection Act) was approved
on October 26, 1992 and is now J.n effect .
28 Weekly Compilation
of Presidential Documents
(1992): Oct.
26, Presidential
Statement.
. ..
In relevant part it provide:;, among other things:
Sec. 2 (a) (2) "all Government records concerning the
assassination of President John F. Kennedy should carry
a presumption of immediate disclosure, and all records
should be eventually disclosed to enable the public to
become fully informed about the history surrounding the
assassination;"
..
Sec. 2 (a) (5) "legislation is necessary because the
Freedom of Information Act, as implemented by the
executive branch, has prevented the timely public
disclosure of records relating to the assassination of
President John F. Kennedy;"
Sec. 2 (a) (7) "most Df the records related to the
assassination of Pres!i.dent John F. Kennedy are almost
30 years old, and only in the rarest cases is there any
legitimate need for continued protection of such
records."
The Records Collection Act by Sec. 3(2) (I) specifically
includes "a record that is related to the assassination of
President John F. Kennedy, that was created or made available for
use by, ·obtained by, or otherwise came into the possession of
any Executive agency" and therefore; beyond argument, includes
the material which Plaintiff seeks in this action to have
disclosed.
Section 6 provides the grounds for postponement of public
disclosure of records only "if there is clear and convincing
evidence that -
(1) "the threat to the military defense, intelligence
operations, or conduct of foreign relations of the United
States posed by the public disclosure of the assassination
is of such gravity that it outweighs the public interest,
and such public disclosure would reveal -
(A) "an intelligence agent whose
currently requires protection;
identity
(B) "an intelligence source or method which is
currently utilized; or reasonably expected to be
utilized, by the United States Government and which has
not been officially disclosed, the disclosure of which
would interfere with the conduct of intelligence
activities; or
(C) "any other matter currently relating to
- 2
··----------------------------
military defense, intelligence operations or conduct of
foreign relations of United States, the disclosure
of which would demonstrably impair the national
security of the United States;
(2) "the public disclosure of the assassination record
would reveal the name or identity of a living person who
provided confidential information to the United States and
would pose a substantial risk of harm to that person;
(3) "the public disclosure of the assassination record
could be reasonably expected to constitute an unwarranted
invasion of personal privacy, and that invasion of privacy
is so substantial that it outweighs the public interest;
(4) "the public disclosure of the assassination record
would compromise the existence of an understanding of
confidentiality currently requiring protection between a
  agent and a cooperating individual or a foreign
government, and public disclosure would be so harmful that
it outweighs the public interest; or
(5) "the public disclosure of the assassination record
would reveal a security or protective procedure currently
utilized, or reasonably expected to be utilized, by: the
Secret .Service or another Government agency responsible for
protecting Government officials, and public disclosure would
be so harmful that it outweighs the public interest."
Sec. ll of the Records Collection Act provides that "it
shall take precedence over any other law ... , judicial decision
construing such law, or common law doctrine that would otherwise
prohibit such transmission or disclosure
II
Clearly,
therefore, reliance by the Federal Bureau of Investigation in
this case upon the provisions of the Freedom of Information Act
is overridden by the Records Collection Act.
Examination of the Senate Report Number l02-328(ll(A) U.S.
Code congressional & Administrative News 2965) makes clear that
the purpose of the Records Collection Act is, among other
- 3 -
-
. '
il
t
i
I
consistent objectives, to achieve "speed of records disclosure,
and enforceability.
11
At 2966, the thrust of the Act is "to
provide for the most comprehensive disclosure of records related
to the assassination of President Kennedy." id. The Senate
found (at 2969) that "the Freedom of Information Act, as
implemented by the Executive Branch, has impeded the timely
public disclosure of the assassination records" and that "only in
the rarest cases is there any legitimate need for continued
protection of such records." In dealing with "Standards for
postponement" (at 2976), the Senate Report starts with a
"presumption of disclosure established by the Act," but continues
that even postponement (never permanent concealment) "requires
that there be
1
clear and convincing evidence
1
that particular
standards for postponement are triggered."
In this case, the FBI relies upon protecting the anonymity
of a 30 year old "source" but the Senate Report (at 2977)
requires that consideration be given to "whether the source or
method is inheritently secret, or whether it was the information
collected that was secret." In the instant case, the information
collected has already been revealed and the name of an individual
has been redacted. Clearly the name of that individual, in the
context of the text of the documents so far released, cannot meet
the Congressional standard of inherent secrecy nor require
secrecy to prevent "harm to that person." Section 6(2).
4.-
;;., •• :0...
'I
·, ;.. ..
Section 5 (2) (b) (G), as amplified in the Senate Report at
page 2978, deals with cases such as this which are the subject of
litigation under the Freedom of Information Act on the date of
enactment (Oct. 26, 1992).
The Report calls for immediate and
diligent "effort to disclose the pertinent records to these
requestors" since "continued delay in release of such records
will only serve to undermine confidence by those members of the
public whose past interest resulted in the Freedom of Information
Act litigation."
It is respectfully submitted that, the issue having been
tendered by the cross-motions now pending before the Court, and
the FBI now having had months to consider this small redaction,
the matter should not be remanded to ther FBI for more
consideration and then subjected to the inevitable delays of the
Assassination Materials Review Board to be established under the
Act, but that, given the public policy enunciated in the new
legislation and the clarity of the matter already before the
Court, either the Federal Bureau of Investigation should submit
to the will of Congress
Court to do so.
C--'
Dated: New York, New ork
February 11, 1993
now or be ordered
/ ..... /
./· //' .. <0
/ Resp. e · fulz:;· subnn ed· ·'/,/.:::-;/
I .. /'  
\.._ //L.· ·" / /...-
·J ··rAfis. ··
,... evy, Gutman,· Goldberg & Kaplan
Attorneys for Plaintiff
275 Seventh Avenue - Suite 1776
New York, New York 10001
(212) 807-9733
- 5 -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------x
ARON KAY,
Plaintiff,
- against -
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
--------------------------------x
Index No.
92 Civ. 2438
(KORMAN)
SUPPLEMENTAL SUMMARY
MEMORANDUM OF LAW
Having just been notified on February 8, 1993 that the Court
wishes a status conference on the afternoon of February 12, 1993,
the undersigned attorney for the Plaintiff has had occasion only
cursorily to examine Public Law 102-526 [S. 3006] entitled
"President John F. Kennedy Assassination Records Collection Act
of 1992" now appearing at 106 stat. 3443, 11 u.s. Code
Congressional & Administrative News, January, 1993. The Senate
Report appears at 11(A) U.S. Code Congressional & Administrative
News 2965 (January, 1993).
The President John F. Kennedy Assassination Records
Collection of Act of 1992 (Records Collection Act) was approved
on october 26, 1992 and is now in effect. 28 Weekly Compilation
of Presidential Documents (1992): Oct. 26, Presidential
Statement.
In relevant part it provides, among other things:
Sec. 2 (a) ( 2) "all Government records concerning the
assassination of President John F. Kennedy should carry
a presumption of immediate disclosure, and all records
should be eventually disclosed to enable the public to
become fully informed about the history surrounding the
assassination;"
,.
'
Sec. 2 (a) (5) "legislation is necessary because the
Freedom of Information Act, as implemented by the
executive branch, has prevented the timely public
disclosure of records relating to the assassination of
President John F. Kennedy;"
Sec. 2 (a) (7) "most of the records related to the
assassination of President John F. Kennedy are almost
30 years old, and only in the rarest cases is there any
legitimate need for continued protection of such
records."
The Records Collection Act by Sec. 3(2) (I) specifically
includes "a record that is related to the assassination of
President John F. Kennedy, that was created or made available for
use by, obtained by, or otherwise came into the possession of
any Executive agency" and therefore, beyond argument, includes
the material which Plaintiff seeks in this action to have
disclosed.
Section 6 provides the grounds for postponement of public
disclosure of records only "if there is clear and convincing
evidence that -
(1) "the threat to the military defense, intelligence
operations, or conduct of foreign relations of the United
States posed by the public disclosure of the assassination
is of such gravity that it outweighs the public interest,
and such p u   l ~ i c disclosure would reveal -
(A) "an intelligence agent whose
currently requires protection;
identity
(B) "an intelligence source or method which is
currently utilized, or reasonably expected to be
utilized, by the United States Government and which has
not been officially disclosed, the disclosure of which
would interfere with the conduct of intelligence
activities; or
(C) "any other matter currently relating to
- 2 -
'
military defense, intelligence operations or conduct of
foreign relations of the United States, the disclosure
of which would demonstrably impair the national
security of the United States;
(2) "the public disclosure of the assassination record
would reveal the name or identity of a living person who
provided confidential information to the United States and
would pose a substantial risk of harm to that person;
(3) "the public disclosure of the assassination record
could be reasonably expected to constitute an unwarranted
invasion of personal privacy, and that invasion of privacy
is so substantial that it outweighs the public interest;
(4) "the public disclosure of the assassination record
would compromise the existence of an understanding of
confidentiplity currently requiring protection between a
Government agent and a cooperating individual or a foreign
government, and public disclosure would be so harmful that
it outweighs the public interest; or
(5) "the public disclosure of the assassination record
would reveal a security or protective procedure currently
utilized, or reasonably expected to be utilized, by the
Secret Service or another Government agency responsible for
protecting Government officials, and public disclosure would
be so harmful that it outweighs the public interest."
Sec. 11 of the Records Collection Act provides that "it
shall take precedence over any other law ... , judicial decision
construing such law, or common law doctrine that would otherwise
prohibit such transmission or disclosure
"
Clearly,
therefore, reliance by the Federal Bureau of Investigation in
this case upon the provisions of the Freedom of Information Act
is overridden by the Records Collection Act.
Examination of the Senate Report Number 102-328(11(A) U.S.
Code Congressional & Administrative News 2965) makes clear that
the purpose of the Records Collection Act is, among other
- 3 -
consistent objectives, to achieve "speed of records disclosure,
and enforceability." At 2966, the thrust of the Act is "to
provide for the most comprehensive disclosure of records related
to the assassination of President Kennedy." id. The Senate
found (at 2969) that "the Freedom of Information Act, as
implemented by the Executive Branch, has impeded the timely
public disclosure of the assassination records" and that "only in
the rarest cases is there any legitimate need for continued
protection of such records.
11
In dealing with "Standards for
postponement" (at
2976)'
the Senate Report starts with a
"presumption of disclosure established by the Act," but continues
that even postponement (never permanent concealment) "requires
that there be
1
clear and convincing evidence
1
that particular
standards for postponement are triggered."
In this case, the FBI relies upon protecting the anonymity
of a 30 year old "source" but the Senate Report (at 2977)
requires that consideration be given to "whether the source or
method is inheritently secret, or whether it was the information
collected that was secret." In the instant case, the information
collected has already been revealed and the name of an individual
has been redacted. Clearly the name of that individual, in the
context of the text of the documents so far released, cannot meet
the Congressional standard of inherent secrecy nor require
secrecy to prevent "harm to that person." Section 6(2).
- 4 -
;· ..
Section 5 (2) (b) (G), as amplified in the Senate Report at
page 2978, deals with cases such as this which are the subject of
litigation under the Freedom of Information Act on the date of
enactment (Oct. 26, 1992).
The Report calls for immediate and
diligent "effort to disclose the pertinent records to these
requestors" since "continued delay in release of such records
will only serve to undermine confidence by those members of the
public whose past interest resulted in the Freedom of Information
Act litigation."
It is respectfully submitted that, the issue having been
tendered by the cross-motions now pending before the Court, and
the FBI now having had months to consider this small redaction,
the matter should not be remanded to the FBI for more
consideration and then subjected to the inevitable delays of the
Assassination Materials Review Board to be established under the
Act, but that, given the public policy enunciated in the new
legislation and the clarity of the matter already before the
Court, either the Federal
to the will of Congress
Court to do so.
c-
Dated: New York, New ork
February 11, 1993
Bureau of Investigation should submit
now or be ordered b:[._;the
/ /
////.. / ./'? . <;:;; --
/ Resp.   ed
\._ ;(/;j: .··L-1 /--'-
.. J EIDlili: s . 'GUTMAN
_/ evy, Gutman, Goldberg & Kaplan
·· Attorneys for Plaintiff
275 Seventh Avenue - Suite 1776
New York, New York 10001
(212) 807-9733
- 5 -
LAW OFFICES
··cEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY
THEODORE GUTMAN 1913-1948
GEORGE GOLDBERG 1913-1980
JEREMIAH S. GUTMAN
PHILIP KAPLAN
EUGENE N. HARLEY
Jim Lso_sar,
9l8 F Street, N.W.
Room 509
Washington, D.C. 20004
Dear Mr. Lesar:
May 3, l993
Re: Kay v. FBI
275 SEVENTH AVENUE, SUITE 1776
NEWYORK, N.Y. IOOOJ
TELEPHONE 212/807-9733
FAX 807-Q737
WESTCHESTER OFFICE
Z RJYE:RVIEW PLACE
HASTING5-0N-HUDSON, N,Y, 10706
QI4/47B-3!'5!'5Q
I regret that Judge Korman did not write an opinion in
our case and I am sure that the reason is that the FBI did
not want one published.
I am happy to send you a copy of the document at issue
in the redacted form. I understand that you already have it
as released pursuant to the order in our case.
You might want to take a look at Weberman v. FBI, Second
Circuit 80-6l97, where another person way back then sought
the same document unsuccessfully.
I enclose, as you requested, a copy of our Supplemental
Summary Memorandum of Law dated February ll, l993, based on
the Kennedy Assassination Records Collection Act. A copy of
the stipulation of and urcter as
signed by the Judge is also .
If you want other documents record, let me know
and I will have them copied for
JSG:jf
Enc.
cc: Aron Kay
 
Siny
Gutman
Jeremiah S. Gutman, Esq.
Levy, Gutman, Goldberg & Kaplan
275 Seventh Avenue, Suite 1776
New York, NY 10001
U.S. Department of Justice
United States Attorney
Eastern District of New York
I Pierrepont Plaza
lith Floor
Brooklyn, New lVrk ll201
March 1.5, 1993
Re: Kay v. FBI, 92 CV 2438
Dear Mr. Gutman:
Enclosed please find the stipulation of settlement
for your signature. Once it has been signed and returned to
me, I will send you a copy of the teletype.
By:
. 1./ ~
~ ; I
_./ l ~ t : I . }
Very truly yours,
MARY JO WHITE
United States Attorney
SARAH J. LUM =
Assistant U.S. Attorney
718-330-2757/7100
    · ·
'
RLB:SJL
F. #9204632
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - -X
ARON KAY,
Plaintiff,
against -
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
- - - -X
STIPULATION OF
SETTLEMENT AND
ORDER OF DISMISSAL
Civil Action
No. CV 92-2438
WHEREAS the plaintiff filed this action seeking a
certain document relating to the assassination of President John
F. Kennedy, and
WHEREAS the defendant Federal Bureau of Investigation
has again reviewed the request and has, in exercising its
discretion, decided to release an unredacted copy of the document
sought by the plaintiff to assuage public interest in the events
surrounding the assassination,
NOW THEREFORE IT IS HEREBY STIPULATED AND AGREED by and
between the plaintiff ARON KAY, by his undersigned attorney, and--·-------
defendant Federal Bureau of Investigation, by its attorney, MARY
JO WHITE, United States Attorney for the Eastern District of New
York, Sarah J. Lum, Assistant U.S. Attorney, of counsel, that the
above captioned action shall be dismissed with prejudice, without
costs or attorneys fees, and that upon such dismissal, the
defendant shall release to the plaintiff an unredacted copy of
the document sought in the complaint.
Dated: New York, NY
March , 1993
New
     
S. GUTI1AN,

United States Attorney, EDNY
Attorney for Defendant
2
Dated: Brooklyn, NY
March , 1993
One Pierrepont Plaza, 11th Fl.
Brooklyn, New York 11201
By:
SO ORDERED:
Dated: Brooklyn, NY
March 1993
HON. EDW/>..RD R. KORMAN, . U.,S. D. J.
SARAH J. LUM (SL3571)
Assistant U.S. Attorney
LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEV Y
1013-1020
THEODORE OUTMAN 1013·1048
GEORGE GOLDBERG 1013- 1!;180
.JEREMIAH S. OUT MAN
PHILIP KAPLAN
EUG ENE N . HARLEY
Mr. Aron Kay
February 16, 1993
424 Brighton Beach Avenue
Brooklyn, NY 11235
Re: FBI Case
Dear Aron:
275 SEVENTH AVENUE, SUITE 177 6
NEWYORK, N . Y . 10001
TELEPHONE 212 / 807-9733
FAX (212) 8 0 7 - 0737
  O II'P'I C E
Z RIVERV IEW PLACE
H.O.STIHGS..OH- HUDSOH , H . Y . 107011
Q I 4 / 4 7 11 · 3 S S Q
Since writing my earlier letter, I have heard from Judge
Korman. He has persuaded Deputy Director Carp of the FBI to
release the entire document without deletions. The Judge
will be entering an Order marking the case settled and
withdrawn subject to being reinstituted if the FBI does not
make good on its promise. We will not be entitled to seek
costs or attorneys' fees.
I will keep after the U.S. Attorney to make sure that
the FBI does in fact release the docurnen ickly as
possible.
We should now think ab what else
light of the Archives Ac referred to in
filed a couple of day ago and in light
of the FBI.
JSG:jf
ant to demand in
e Memorandum I
f the new attitude
' .
ME UM
DATE: November 13, 1992
TO: File
FROM: Jeremiah S.  
RE:
, I
Kay v. FBI - Telep ne Call November 13, 1992 From the
chambers of Judge;lll'orman
. ;!'•'
.Judge is tied up and cannot make the l:OO P.M.
conferenCe. call today. The Clerk asked me to call Ms. -L''m to
ad.wi:se,;;her-of-:--·tll:at fact ana· -che-chclmbers woUld cOntac .. t ·both
'O''f'ilil's 'td ,.set up a new conference call appointment.
== Aron Kay
DATE:
TO:
FROM:
RE:
MEMOR ?' , NDUM
November 2, 1992/ / fJ
File 1//
Jeremiah s.  
1
Argument of October 30, 1992, Kay v. FBI
Before
The Government conceded that we were correct and that we
were now at the substantive issue of whether the failure to
supply the redacted material was justified. After listening
to us and the Government, the Judge said that after 30 years
on such an important issue, the Government ought to
reconsider. The Judge directed the Assistant U.S. Attorney
to have the Director of the FBI himself (not some
subordinate, but the Director) review the decision and decide
whether the material is to be released. The Judge set a
telephone conference call for Friday, November 6, 1992 at
3:00 P.M. The call is to be initiated by Ms. Lum and is to
include her and the Judge and me, and if the U.S. Attorney
wants it, a representative of the FBI. The Judge said that
if the Government decides to release the information, he will
be pleased not to have to decide it but that, if the
Government does not, he will decide the cross-motions for
summary judgment.
cc: Aron Kay
r ......
The Judge then asked my permission to call Judge Sessions
personally and to bring the matter to his attention since it was
a matter of great historical importance concerning an event
vitally affecting the history of the Republic and keeping it
secret could only lead to more speculation as to what was being
hidden. I agreed heartily that the Judge should call Judge
Sessions. Ms. Lum was reluctant and the Judge interjected that,
if Judge Sessions wanted to have his counsel on the line with
him, that would be fine with the Judge. The Judge then said that
he would call Judge Sessions personally and a new conference call
was set for 11/13/92 at l:OO PM, the call to be initiated by Ms.
Lum and to be put through to the Judge's chambers at 718/330-
7837.
cc: Aron Kay
MEMORANDUM OF CONVERSATION
November 6, 1992
Conference Call 11:00 AM
Judge Korman JSG and Assistant U.S. Attorney Sarah Lum
Ms. Lum reports that the deletion number 2 consisting of the
single area between words ."Galveston" and "indicated" is not
occupied by the name Ferrie. She said that she had conferred
with FBI counsel and the Bureau had decided that it was against
its policy to reveal the identity of a confidential informant and
the disclosure of that word would reveal such identity. The
Judge asked whether she had conferred with the Director himself
but she said she had not, that it had gone only as far as Bureau
counsel.
The Judge said that it was his direction that an independent
judgment be made by a "person of consequence" within the FBI and
that Judge Sessions was the person that the Judge thought best
suited to do the job. Ms. Lum said that the decision had been
made by the Bureau and that was all she could do. The Judge
asked her to arrange for Judge Sessions, or a least a high
ranking Deputy, to review the matter. She was unable to
undertake to accomplish that.
I .
KAY
Pl.ainti£f(s)
-against-
ORIER
F.B.I.
r:efendant ( s )
92 CV 2438 (ERK)
A status =nfererx:e will be held in this case at __ 3_: _o_o_P_. _M_. __
on   ....'"-1z9z9..:.2 _______ before A. SiiiDn Olrein, U¢.ted States
Magistrate, in Roan 352. 225 eaanm Plaza East. B:rookl.yn. New Yo:dc. All
=unsel nust be present. In the event an an51oier has not yet been filed,
plaintiff's =unsel is to noti£y =unseJ. for the defendant of this conference
as soon as an answer is filed. If an an51oier is not filed plaintiff's =unseJ.
is to noti£y the umersigned, in writing, to reach rre two days before the
scheduled =nfererx;e. No request for adjourment will be =nsidered unless
Imde at least forty-eight ( 48 l murs before the scheduled =nferenoe.
Clerk: is c!.i=ted to rrai1. a =r:rf of this order to =unseJ. for all
parties aweariflg in this case.
r::ated: B:rookl.yn, New Yo:dc
Sept. 10, 1992
--·
--
LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY 1913-1929
THEODORE GUTMAN 1913-1<;148
GEORGE GOLDBERG 1913-1980
.JEREMIAH S. GUTMAN
PHILIP KAPLAN
EUGENE N. HARLEY
Mr. Aron Kay
424 Brighton Beach
Brooklyn, New York
Dear Mr. Kay:
Avenue
11235
July 6, 1992
Re: FOIA
275 SEVENTH AVENUE, SUITE 1776
NEWYORK, N.Y. 10001
TELEPHONE 212/807-9733
FAX (212) 807-Q737
Wt:!ITCHt:STER Of"nCt:
Z RIVERVIEW PLACE
HASTINGS-ON-HUDSON, N.Y. 107oe
914/479·.3!5!50
I enclose a copy of the FBI's answer to our appeal.
ENHjwl
Enclosure
cc: A.J. Weberman
Jeremiah S. Gutman, Esquire
Levy, Gutman, Goldberg
& Kaplan
275 Seventh Avenue
Suite 1776
New York, New York
    ueparnnent or Justice
Office of Policy and Communications
Office of Information and Privacy
Ubshington, D.C. 20530
June 30, 1992
Re: Aron Morton Kay, FOIPA #357,579
Dear l·fr. Gutman:
This is to advise you that your administrative appeal from
the action of the Federal Bureau of Investigation on your request
for information from the files of the Department of Justice was
received by this Office on June 22, 1992.
The Office of Information and Privacy, which has the
responsibility of adjudicating such appeals, has a substantial
backlog of pending appeals received prior to yours. In an
attempt to afford each appellant equal and impartial treatment,
we have adopted a general practice of assigning appeals in the
approximate order of receipt. Your appeal has been assigned
number 92-1572. Please mention this number in any future
correspondence to this Office regarding this matter.
We will notify you of the decision on your appeal as soon as
we can. The necessity of this delay is regretted and your
  courtesy- is apprec.ia t.ed
Sincerely,

Drema A. Hanshaw
Paralegal Specialist
Office of Information and Privacy
RLB:
F. #
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - -x
ARON KAY,
Plaintiff,
- against -
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
- - - - - - - - - -x
ANSWER
Civil Action
No. CV 92-2438
(Kerman, J.)
Defendant FEDERAL BUREAU OF INVESTIGATION, by its
attorney, ANDREW J. MALONEY, United States Attorney for the
Eastern District of New York, SARAH J. LUM, Assistant United
States Attorney, of counsel, answers the correspondingly numbered
and lettered paragraphs of the complaint of ARON KAY on
information and belief as follows.
FIRST : This paragraph contains conclusions of law as
to which no response is required.
SECOND: Defendant lacks knowledge or information
sufficient to form a belief as to the truth of these allegations.
THIRD: Denies defendant is an agency of the United
States. Admits defendant has control over the record.
FOURTH: Defendant lacks knowledge or information
sufficient to form a belief as to the truth of these allegations,
except that defendant admits plaintiff signed a letter, dated
WHEREFORE, defendant respectfully requests judgment
dismissing the complaint together with costs and disbursements,
and such other relief as this Court deems just and proper.
Dated: Brooklyn, New York
July \0 , 1992
By:
TO: Jeremiah S. Gutman, Esq.
ANDREW J. MALONEY
United States Attorney
Eastern District of New York
one Pierrepont Plaza, 11th Fl.
Brooklyn, New York 11201
SARAH J. LUM (SL3571)
Assistant U.S. Attorney
718-330-2757/7100
Levy Gutman Goldberg & Kaplan
275 Seventh Avenue, Suite 1776
New York, NY 10001
3
·" ...
AF'FIDA VIT OF MAll.JNG
STATE OF NEW YORK
COUNTY OF KINGS
EASTERN DISTRICT OF NEW YORK, ss:
, being duly sworn, says that on the _______ day of
--------------- , I deposited in Mail Chute Drop for mailing in the U.S. Courthouse,
Cadman Plaza East, Borough of Brooklyn, County of Kings, City and State of New York, a ---------
of which the annexed is a true copy, contained in a securely
enclosed postpaid wrapper directed to the person hereafter named, at the place and address stated below:
Sworn to before me this
day of
AFFIDAVIT OF PERSONAL SERVICES
STATE OF NEW YORK
COUC:TY OF KI:\GS
EASTERN DISTRICT OF NEW YORK. ss:
___________________ . being duly sworn, says that he is employed in the office of
the United States Attorney for the Eastern District of New York. That on the ___ _ day of _____ _
he served a true copy of the annexed----------------------- on the office of
attorney for
, Borough of _________ _
a true copy of same with his clerk or other person in charge of said office.
Sworn to before me this
day of
herein. located at
City of New York, by leaving
Form ~ o   USA·52a-6a
tRev. 7
1
821
SIR:
PLEASE TAKE NOTICE that the witltin will be
presented for settlement and signature to the Clerk
of the United States District Court in his office at
the U.S. Courthouse, 225 Cadman Plaza East,
Brooklyn, New York , un the __ day of __ _
19_ , at 10: 30 o'clock in the forenoon.
Dated : Brooklyn New York,
19
United States Attorney,
Attorney for---------
To:
Attorney for ------- -------
SIR:
PLEASE TAKE NOTICE that the within is a
true copy of _____ _ _
dul y entered herein
on the __ day of
-------- , in the o ffi ce of the Clerk of
the Eastern District of New York,
Dated : Brookl y n, New York
19
United States Attorney,
Att orney for---------
To:
, I
Attorney for--------------
Civil
Action
No. CV-92-2438
UNITED STATES DISTRICT COURT
Eastern District of New York
ARON KAY,
Plaintiff,
- Against -
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
ANSWER
ANDREW J. MALONEY
llnilt>d Stairs Attorney,
Attorney tor Defendant
O f f a n ~ anJ Post Office AJdrrss,
llniteJ States Courthouse
~ ~   Cadman Pla1.a F.ast
Brookl yn, New York II :!0 I
Due Sl'rvice o f a copy of the within _____ _
is hereby admitted.
Da!L'd : -----------
' (() __ _
Attornl'y for ---------
SARAH J. LUM, AUSA
(718) 330-2757/7100
Jeremiah s. Gutman, Esq.
Le¥7, Gutman, & Kaplan
Avenue, Suite 1776
New York, NY 10001
U.S. Department of Justice
United States Attorney
Eastern District of New York
I Pierrepont Plaza
lith Floor
Brooklyn, New York 11201
June 18, 1992
Re: Kay v. FBI. 92 CV 2438
Dear Mr. Gutman:
We are writing to confirm our agreement reached over
the telephone today, that the government will have until July
27, 1992 to either enter a stipulation staying the above
referenced action or to answer or otherwise respond to the
complaint.
We appreciate your courtesy in this matter.
Bv:

Very truly yours,
ANDREW J o MALONEY
United States Attorney
   
SA.RAi'I J o LUM
Assistant U.S. Attorney
718-330-2757/7100
LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY
1Q13-1Q2Q
THEODORE GUTMAN 1Q13-1Q48
GEORGE GOLDBERG IQI3-IQ80
JEREMIAH S. OUTMAN
PHILIP KAPLAN
EUGENE N. HARLEY
Sara Lum, Esq.
United StaEes Courthouse
225 Cadman Plaza East
Brooklyn, NY 11201
Re: Kay v. FBI, 92 Civ. 2438
Dear Ms. Lum:
275 SEVENTH AVENUE, SUITE 1776
NEWYORK, N.Y. 10001
TELEPHONE 212/807-9733
FAX (212) 807-Q737
WE:STCHE:STE:R OI"!""ICE:
2. RIVERVIEW PLACE
HASTINGS-ON-HUDSON, N.Y. 10700
014/476·3.5.50
June 15, 1992
In accordance with our conversation of Friday evening, enclosed
you will find in triplicate a proposed stipulation.
It is the intention of the plaintiff, as recited in the
stipulation, to file an administrative appeal with the assistant
Attorney General, Office of Legal Policy at the office of the
Department of Justice in Washington. For your information, a
copy of the letter enclosing the excised production is enclosed.
By stipulating to stay this action until termination of the
administrative proceeding, it will be possible to discontinue the
action in the event that the plaintiff is satisfied but to file
an amended or supplemental complaint to bring the matter up to
date and address the excision rather than the entire denial
should the proceeding end in, that m2-.nner •.
If you have any difficulties, comments or suggestions, I will be
happy to hear from you.
Very truly yours,
Jeremiah S. Gutman
JSGjmw
Encl.
cc: Aron Kay
bee: Alan J. 1veberman
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------
ARON KAY,
Plaintiff,
-against-
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
------------------------------------
Index No. 92 Civ. 2438
(Korman, J.)
STIPULATION
IT IS HEREBY STIPULATED AND AGREED by and between the
attorneys for the respective parties hereto as follows:
1. The service and verified complaint was served herein by
mail on the 21st of May, 1992.
2. The complaint seeks to compel the defendant Federal
Bureau of Investigation to produce a certain document pursuant to
the Freedom of Information Act.
3. After the service of the complaint and on June 5, 1992
the defendant Federal Bureau of Investigation provided to
plaintiff an excised copy of the document requested.
4. The plaintiff intends to e x ~ r   i s e his right to appeal
the excisions from that document.
5. The parties agree that this action be stayed pending
the termination of that appeal and all administrative proceedings
in connection therewith.
Dated: June lS, l992
Levy, Gutman, Goldberg & Kaplan
Attorneys for Plaintiff
By:
------------------------
Andrew J. Maloney
United States Attorney for
the Eastern District of New York
Attorney for Defendant
By:
~ S ~   R   ~ ~ L ~ U M ~
Assistant U.S. Attorney
2
_________ E_A_S _T-=-E-=-R ::..:.N::..;_________ DISTRICT OF -
NEW YORK
                         
ARON KAY,
Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
TO: (Name and Address of
SUMMONS IN A CIVIL ACTION
CASE NUMBER:
9ZCet/, ZV31
(GitMfUJ
YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon
PLAINTIFF'S ATTORNEY (name and addressJ
LEVY, GUTMAN, GOLDBERG & KAPLAN
275 Seventh Avenue, Suite 1776
New York, New York 10001
(212) 807-9733
an answer to the complaint '.'Jhich is herewith served upon you, within 60 days after service of
this summons upon you, exclusive of the day of service. If you fail to do so, judgment by default will be taken
against you for the relief demanded in the complaint.
May Jl , 1992
CLERK
DATE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------X
ARON KAY,
Plaintiff,
-against-
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
--------------------------------------X
VERIFIED COMPLAINT
JURY TRIAL DEMANDED
Plaintiff, by his attorneys, Levy, Gutman, Goldberg &
Kaplan, respectfully alleges as and for his verified complaint as
follows:
I. JURISDICTION
FIRST: This is an action under the Freedom of Information
Act [FOIA] 5 u.s.c. §552 et. seq., as amended, to order the
production of a single two page document in the possession of the
Defendant Federal Bureau of Investigation. Plaintiff seeks
declaratory and injunctive relief. This Court has jurisdiction
pursuant to 5 u.s.c. §552 and 28 u.s.c. §1331. Venue is proper
in this district pursuant to 5 u.s.c. §552 a(4) (B) and 28 u.s.c.
§1391.
II. PARTIES
SECOND: Plaintiff is a citizen of the United States,
interested in American history and, in particular, the
assassination of President John F. Kennedy. Plaintiff resides at
424 Brighton Beach Avenue, Brooklyn, NY 11235 within the
jurisdiction of this Court.
THIRD: Defendant is an agency of the United States and it
has possession of and control over the record that Plaintiff
seeks.
III. AS AND FOR A CAUSE OF ACTION
FOURTH: On or about February 15, 1992, Plaintiff mailed to
Defendant a request under the Freedom of Information Act for
access to a certain two page FBI teletype dated November 2 6,
1963. [A copy of the request is annexed as Exhibit A.]
FIFTH: The request was received by Defendant on February
20, 1992. [A copy of the certified mail return receipt is
annexed as Exhibit B.]
SIXTH: Defendant acknowledged receipt of the request
(# 357579) on March 2, 1992. [A copy of the Acknowledgement is
annexed as Exhibit C.]
SEVENTH: More than ten days have passed since Defendant's
receipt of Plaintiff's request and no substantive response of any
kind has been received.
EIGHTH: Plaintiff has a statutory right to the record he
seeks and there is no legal basis for Defendant's refusal to
disclose it to him.
WHEREFORE, Plaintiff prays that this Court:
A. Declare that Defendant's refusal to disclose the record
requested by Plaintiff is unlawful;
B. Enjoin Plaintiff from further refusing to disclose the
record to Plaintiff;
2
--,
-,
c. Award Plaintiff his costs and reasonable attorney's
fees in this action;
D. Grant to Plaintiff such
relief as this Court may deem
Dated: New York, New York
May 1& , l992
3
s. Gutman
Levy Gutman Goldberg & Kaplan
Attorneys for Plaintiff
275 7th Avenue, Suite l776
New York, NY lOOOl
(2l2) 807-9733
Freedom of Information Officer
Federal Bureau of Investigation
9th and Pennsylvania Avenue N.W.
Washington, D.C. 20535
----,
Re: Freedom of Information Act Request
Dear Sir or Madam:
Under the provisions of the Freedom of Information Act, 5 U.S.(
552, I hereby request access to a certain two-page FBI teletTI
from Special Agent ·in Charge, Houston, to Special Agents j
charge, Dallo.s     d:.:ted Novi=nnber 26, ·1963.
believe this document is or was at one time located in the Dallc
field office of the FBI and is known, or at one time was knowr
as Dallas Field Office Document No. 89-43-879.
I am making this request primarily for the benefit of the publi
because I believe that the document contains information whic
the public is entitled to have and I therefore request that yc
reduce or waive any fees which may in involved for searching fc
or copying the document.
If all or any part of this request
specific exemption which you think
provide me with copies of all
available to me.
is denied, please cite an
justifies your refusal an
relevant appeal procedure
Since all I seek is a single document, the existence of a backlo
of searches should in no way interfere with the ability of you
Bureau to comply with this request within the ten days provide
by la;.;, and I therefore look forward to a prompt and complet
response within the time provided by law.
Date>::: Yc::-:k,  
Febrliary , 1992
Mf LVIN r. . •
Nmar, '--'utllc. Sta·,::. "7 .....,
rl)J
SS# 551-80-8180
D. O.B. 11/14/49
Residence Address:
424 Brighton Beach
Brooklyn, NY 11235
AvenuE
Oualmed Jn Kmgs Coum-.-
rtJbmmiSSIOn Expires Feb. 28 ..•.. '
Please address response to this Freedom
Request to my attorneys Levy, Gutman, Goldberg &
of Informatior
Kaplan, 275 7tr
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DOMESTIC RETURN RECEIPT
Exhibit
6
'
'
! • '•
I:\

U.:S. Department  
Federal Bureau oflnvestigation
MR. ARON MORTON KAY
Washinxron, D.C. 205.?5
C/0 LEVY, GUTMAN, GOLDBERG
AND KAPLAN
SUITE 1776
Request No. _3_5_7_5_7-=...9 __
275 7TH AVENUE
NEW YORK, NY 10001
RE: FBI TELETYPE/FROM SAC HO TC
SAC(S) DL AND NO
Dear Requester:
1jj This acknowledges your recent Freedom of Information-Privacy Acts (FOIPA) request
submitted to the FBI.
0 Based on the limited information you provided. we cannot make an accurate search of
our records. Please furnish your complete name, alias, date and place of birth, prior
addresses, employments. and any specific data that would permit us to locate the
documents you seek.
0 Please submit your notarized signature. This procedure is designed to insure that
documents, if located, are released only to an individual having right of access to the
information.
0 If you want a search of our Identification Division records for any arrest record that might
pertain to you, ·please comply with the enclosed instructions set forth in Attorney General
Order 556-73. Fingerprint impressions are needed for compa,ison with records in the
Identification Division to insure that an individual's record is not disseminated to an
unauthorized person.
0 We are currently searching the indices to our central records system files at FBI
Headquarters for any documents which may pertain to your request. Upon completion
of this search you will be notified of the results.
0 Provroe the complete name, date and place of birth for the subject of your request.
If subject is deceased, give date of death and any proof of death you have.
Your request has been assigned the number indicated above. Please use this number in all
correspondence with us.
0 Enclosure
Sincerely yours.
Chief
Freedom of Information-
Privacy Acts Section
Records Management Division
··- •.
Exhibit
c
STATE OF NEW YORK
COUNTY OF
)
) 55. :
)
ARON KAY, being duly sworn, deposes and says:
I am the Plaintiff in the within action.
I have read the
foregoing COMPLAINT and know the contents thereof, and I know the
same to be true to my own knowledge, except as to matters therein
stated to be alleged upon information and belief, and as to those
matters, I believe them to be true.
$TEV-at FROMM
NOTARYPUilUC, St:rte of New York
No. 24-4817743
Qualified In t<klgs County <( z.....
Commission Explma Nav, 30,   ~ ___.;
(
·- ·c:_
ARON KAY
I
----··
I ( . I . !
. (.. t I
'
F
) -..
LAW OFFICES
- LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY
IQI3-IQ2Q
THEODORE OUTMAN IQI3-1Qo4B
GEORGE GOLDBERG IQI3- IQ80
.JEREMIAH S. OUTMAN
PHILIP KAPLAN
EUGENE H . HARLEY
via certified Mail - RRR
Assistant Attorney General
Office of Legal Policy
Attn: Office of Information and Privacy
United States Department of Justice
Washington, D.C. 20530
275 SEVENTH AVENUE, SUITE 177e
NEWYORK, N .Y. 10001
TELEPHONE 212 / 807-9733
FAX 1212l B07-Q737
WESTCHESTE .. O,.I"ICE.
2 I'IIVERVIEW PLACE
HASTINOS.ON-HUDSOH , N .Y. 1070e
GI .. / .. 71S· 3!5SG
June 15, 1992
Re: Freedom of Information Appeal/Information Appeal
Request No. 357579
United States District Court, Eastern District of New York
Case No. 92 Civ. 2439 (Korman, J.)
Dear Madam or Sir:
Aron Morton Kay, by his undersigned attorneys, hereby appeals all
excisions made to a certain teletype dated November 26, 1963.
The excisions are all justified by purported reliance upon
5 United States Code §552(b) (7) (D).
sense
the event,
be expected
and
name of a
The person
no
by
)
-.
LEVY, GUTMAN, GOLDBERG & KAPLAN
restoring the excision. Furthermore, no confidential information
could be disclosed other than what is already in the teletype
because the disclosure by the excised person is set forth.
Apparently there were two other persons in the room, one of whom
might be the one who "indicated they were friends of Oswald.
11
These persons are Melvin S. Coffey (or Cofey) and a blonde, white
female whose name was unknown. It might have been one of those
who made the indication but it could not be the latter since the
Houston SAC did not know her name and disclosure that it was
Coffey would compromise no confidential source since his name is
a.Lready cuntained i:ti the document  
On the second page of the teletype there are two deletions, the
first does not seem, by grammatical construction both before and
after the excision, to identify a person and so the excision is
not within the exemption claim. The second excision on the
second page refers to a third party whom the unidentified and
anonymous "source" does not want to know of his contact with the
FBI. This third party, whose name is excised, is not a
confidential source nor could the existence of a third party be
confidential information from a confidential source and therefore
this excision cannot logically be included within the exemption
claim.
Even if one could make a tortured confidential identity or source
or material argument for any of these deletions, the passage of
nearly 29 years since this "urgent" teletype was dispatched from
Houston to Dallas and New Orleans renders it incredible that the
purpose of the exemption is served by the excisions whereas the
contrary appears to be the case, that is, that the purpose of the
Freedom of Information Act itself is subverted thereby.
cc: Aron Kay
bee: Alan J. Weberman
SEEREFOR·E· this appe-al is
respectfully submitted on behalf of
Aron Morton Kay by Levy, Gutman,
Goldberg & Kaplan, attorneys for
Aron Morton Kay.
Mr. Aron Morton Kay
cjo Levy, Gutman, Goldberg
& Kaplan
Suite l776
275 7th Avenue
New York, NY lOOOl
Dear Mr. Kay:
U.S. Department ofJustice
Federal Bureau of Investigation
Washington, D. C. 20535
June 5, l992
Request Number: 357579
Re: FBI teletype/from SAC HO
to SAC(S) -DL a.-.d NO
Enclosed is an excised copy of the teletype you
requested dated November 26, l963. Also enclosed is a copy of
the explanation of exemptions sheet.
You may submit an appeal from any denial contained
herein by writing to the Assistant Attorney General, Office of
Legal Policy (Attention: Office of Information and Privacy) ,
United States Department of Justice, Washington, D.C. 20530,
within thirty days from receipt of this letter. The envelope and
the letter should be clearly marked "Freedom of Information
Appeal" or "Information Appeal." Please cite the FOIPA number
assigned to your request so that it may be easily identified.
Enclosures (2)
sincerely y o u r ~
9
v/ ·   > ~ .. 1/!cc_
. 9-:lf-t '-vr--
J. Kevin O'Brien, Chief
Freedom of Information-
Privacy Acts Section
Information Management
Division
.• 4a   12·4·B6)
'-. 11.
EXPLANATION OF EXEMPTIONS
SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552
(b) (1) (A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign
policy and (B) are in fact properly classified pursuant to such Executive order; ·
:b) (2) related solely to the internal personnel rules and practices of an agency;
:b) (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the
matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be withheld;
(b) (4} trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(b) (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation
with the agency;
(b) (6) personnel and medical files and similar files the disclosure ol which would constitute a clearly unwarranted invasion of personal privacy;
(b) (7) records or information compiled tor law enforcement purposes, but only to the extent that the production of such law enforcement records
or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to
a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy,
(D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority
or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by
a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security
intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforce-
ment investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure
could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life of physical
safety of any individual;
(b) (8) contained in or related to examination, operating. or condition reports prepared by, on behalf of, or for the use of an agency responsible
for the regulation or supervision of financial institutions: or
(b) (9) geological and geophysical information and data, including maps. concerning wells.
SUBSECTIONS OF TITLE 5, UNITED STATES CODE, SECTION 552a
{d) (5) information compiled in reasonable anticipation of a c1vil action proceeding;
U) (2)
(k) (1)
(k) (2)
(k) (3)
(k) (4)
(k) (5)
(k) (6)
material reporting investigative efforts pertaining to the enforcement of criminal law including efforts to prevent, control, or reduce crime
or apprehend criminals, except records of arrest
information which is currently and properly classified pursuant to Executive Order 12356 in the interest of the national defense or foreign
policy, for example, information involving intelligence sources or methods:
investigatory material compiled for law enforcement purposes. other than criminal, which did not result in loss of a right, benefit or privilege
under Federal programs. or which would identity a source who furnished information pursuant to a promise that his/her identity would
be held in confidence:
material maintained in connection with providing protective services to the President of the United States or any other individual pursuant
to the authority of Title 18, United States Code, Sect1on 3056:
required by statute to be maintained and used solely as statistical records;
investigatory material compiled solely for the purpose of determining suitability eligibility, or qualifications for Federal civilian employment
or for access to classified information, the disclosure of which would reveal the identity of the person who furnished pursuant
to a promise that his identity would be held in confidence:
testing or examination material used to determine individual qualifications for appointment or promotion in Federal Government service
the release of which would compromise the testing or examination process;
{k) (7) material used to determine potential for promotion in the armed services, the disclosure of which would reveal the identity of the person
who furnished the material pursuant to a promise that his identity would be held in confidence.
FBVD<N
-


U.S: Department ofJustice
' e. .
Federal Bureau of Investigation
MR. ARON MORTON KAY
D.C. 20535 .
C/0 LEVY, GUTMAN, GOLDBERG
AND. KAPLAN
SUITE 1776
275 7TH AVENUE
NEW YORK, NY 10001
Dear Requester:· ··
MAR 0 3 1992.
Request No .. 357 579
RE: FBI TELETYPE/FROM SAC HO TO
SAC(S) DL AND NO
··- ·" ..
This acknowledges your recent Freedom of Information-Privacy Acts (FOIPA) request
submitted to the FBI. ·
--- 0 Based on -the limited !nf·xme.tion   prov!ded, 'He- ce.:mct an accurate eea:-ch of
our records. Please furnish your complete name, alias, date and place of birth, prior
addresses, employments, and any specific data that would permit us to locate the
documents you seek.
D Please submit your notarized signature. This procedure is designed to insure that
documents, if located, are released only to an individual having right of access to the
information.
0 If you want a search of our Identification Division records for any arrest record that might
pertain to you, please comply with the enclosed instructions set forth in Attorney General
Order 556-73. Rngerpr'1nt impress'1ons are needed for-comparison with records in the
Identification Division to insure that an individual's record is not disseminated to an
unauthorized person. ·' _, .,·/·''
D We currently searching the indices to our central records system files at FBI
Headquarters for any documents which may pertain· to your' request. Upon completion
of this search you will be notified of the results.
0 Provide the complete name, date and place of birth for the subject of your request.
If subject is deceased, give date of death.and any proof of death you have. :
. Your request has been assigned the number indicated above. Please use this number in all
correspondence with us. ___ _
D Enclosure
Sincerely yours,
Q . ./'1_,_/ r
• )'!,..2./'..r.r-/'-.,
I
' .
Chief . - .
Freedom of Information·
Privacy Acts Section
Records Management Division
Freedom of Information Officer
Federal Bureau of Investigation
9th and Pennsylvania Avenue N.W.
Washington, D.C. 20535
Re: Freedom of Information Act Request
Dear Sir or Madam:
Under the provisions of the Freedom of Information Act, 5 U.S.C.
552, I hereby request access to a certain two-page FBI teletype
from   --in Charg-e.
1
HoustQ!:, t12 Agents
Charge, Dallas and New Orleans, dated November 26, 1963. I
believe this document is or was at one time located in the Dallas
field office of the FBI and is known, or at one time was known,
as Dallas Field Office Document.No. 89-43-879.
I am making this request primarily for the benefit of the public
because I believe that the document contains information which
the public is entitled to have and I therefore. request that you
reduce or waive any fees which may in involved for searching for
or copying the document.
If all or any part of this request
specific exemption which you think
provide me with copies of all
available to me.
is denied, please cite any
justifies your refusal and
relevant appeal procedures
since all I seek is a single document, the existence of a backlog
of searches should in no way interfere with the ability of your
Bureau to comply with this request within the ten days provided
by law, and I therefore look forward to a prompt and complete
response within the time provided by law.
Dated: New York, New York
February , 1992
Very truly yours,
Aron Morton Kay
SS# 551-80-8180
D.O.B. 11/14/49
Residence Address:
424 Brighton Beach Avenue
Brooklyn, NY 11235
Please address your response to this Freedom of Information
Request to my attorneys Levy, Gutman, Goldberg & Kaplan, 275 7th
Avenue, Suite 1776, New York, NY 10001, whom I have requested to
forward this request with their covering letter.
Aron Morton Kay
STATE OF NEW YORK
)
) ss. :
COUNTY OF
)
On this
day of February, 1992, before me personally
came ARON MORTON KAY, to me known and known to me to be the
individual described in and who
executed the foregoing
instrument, and he duly acknowledged to me that he executed the
same.
Notary Public
LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY
1913-1929
THEODORE GUTMAN 191 3 ·1948
GEORGE GOLDBERG 1913·1980
.JEREMIAH S . GUTMAN
PHILIP KAPLAN
EUGENE N . HARLEY
Alan J. Weberman
318 Third Avenue, #520
New York, NY 10010
Dear AJ:
January 29, 1992
Re: FBI Document
275 SEVENTH AVENUE , SUITE 1776
NEW YORK , N . Y . 10001
TELEPHONE 212/807· 9733
FAX 1212) 807· 9737
W£STCHE:STER O,.P'ICE
2 RIVERVIEW PLACE
HASTIH05-0H·HUDSO-. , H . Y . 10708
QI4 / 47B·315SQ
Aron will have to start all over again by making a
request under the Freedom of Information Act and then
appealing up the line and litigating if necessary. He will
have to ask for the document and, if and when he receives a
sanitized version, appeal the deletions.
As long as a demand is being made, should we not demand
more than one document? Is there not other material to be
included in the demand?
You and Aron are the experts so please let me hear from
you. I must hear from Aron also ~ e I   ~ e d his
authorization and he will have to sign s o ~ e papers. I also
need his residence address pl'ld telephon /"i1umber .
JSG: j f
LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY
1913-192.9
THEODORE GUTMAN 1913-1948
GEORGE GOLDBERG 1913-1980
.JEREMIAH S. GUTMAN
PHILIP KAPLAN
EUGENE N. HARLEY
Mr. Aron Morton Kay
January 30, 1992
424 Brighton Beach Avenue
Brooklyn, N.Y. ll235
Dear Aron:
275 SEVENTH AVENUE, SUITE 1776
NEWYORK, N.Y. 10001
TELEPHONE 212/807-9733
FAX (2.12.) 807-9737
WI!'::!5TCHI!:!5TI':R. OI'"I'"ICI!:
2: RIVERVIEW PLACE
HASTINOS-OH-HUDSON, H,Y. 10700!'1
QI4/478·3!5!5Q
Before preparing your Freedom of Information Demand,
please review with Alan and anyone else knowledgeable whether
the demand is to be made for the missing word on the single
document, or the entire document itself, or for the latter
and other documents with respect to specific items or
incidents.
As long as we are going to make a demand under the
Freedom of Information Act, it should be broad enough to
force disclosure of what you want. It is difficult to make a
blanket demand to get "everything" they have-o1) a particular
subject, but it is possible to be specific so that
the net gets what you are really
Befcre I draw you
and Alan so we can declde hDw to phra   J
JSG:jf
Enc.
cc: AJ Weberman
. / l
rere y,
Jere
~ - · % . ~ ~ ' '   '' '0
~
MEMORANDUM
DATE: January 30, l992
TO: File
FROM: Je'Lemiah s. Gutman
RE: conversation with Aron Morton Kay who lives .at 424
Brcighton Beach Avenue, Brooklyn, N.Y. ll235; date of
birth, November l4, l949; Social Security No.
55il-s'b-Sl80; telephone 7l8-648-7055
Arory :Will make the demand for the FBI document· or
documen,ts!. and follow up the appeal and any lawsuit. Fees
will be paid by AJW.
LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD L..EVY IQI3- IQ2Q
THEODORE GUTMAN IQI3-IQ48
GEORGE GOLDBERG IQI3-IQ80
.JEREMIAH S . GUTMAN
PHILIP KAPLAN
EUGENE N . HARLEY
Mr. Aron Kay
424 Brighton Beach Avenue
Brooklyn, New York 11235
Dear Aron:
May 7, 1992
Re: Kay v. FBI
275 SEVENTH AVENUE, SUITE 1776
NEWYORK, N . Y. 10001
TELEPHONE 212/807-9733
FAX 1212) 807-Q737
WE.STCHESTEft O,.,.ICE
2 "IVERVIEW PLACE
HASTI HOS-OH-HUDSOH , H . Y . 1070 e
Enclosed for your files is a copy of the three-page complaint
which will be necessary to commence the action against the FBI.
Also enclosed are an original and a copy of the verification
page. Please complete the verification page by filling in the
county where you sign it, sign your name and have a notary public
complete the swearing form. . send the original of that
verification back to us to be attached to the original complaint
so that the proceeding can be commenced upon payment of the
appropriate filing fee, and filing papers with the clerk of the
court.
We ask that we be immediately provided
towards those expenses and fees.
JSG/Wl
Enclosures
bee: A.J. Weberman
LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY
IQI3-IQ2Q
THEODORE OUTMAN IQI3-IQ48
GEORGE GOLDBERG IQI3-IQ80
.JEREMIAH S. GUTMAN
PHILIP KAPLAN
EUGENE N. HARLEY
Mr. Aron Kay
424 Brighton Beach
Brooklyn, New York
Dear Aron:
Avenue
ll235
May 7, 1992
Re: Kay v. FBI
2 7 5 SEVENTH AVEHU E, SUITE 1770
NEWYORK, N.Y. 10001
TELEPHONE 212/807-9733
FAX (212) 607-Q737
W£STCH£ST£" O   . .   . .   C ~
2 RIVERVI £W PL..,.o.CE
HASTINO!";..OK-HUD50N, N.Y. I070e
Enclosed for your files is a copy of the three-page complaint
which will be necessary to commence the action against the FBI.
Also enclosed are an original and a copy of the verification
page. Please complete the verification page by filling in the
county where you sign it, sign your name and have a notary public
complete the swearing form. .send the original of that
verification back to us to be attached to the original complaint
so that the proceeding can be commenced upon payment of the
appropriate filing fee, and filing papers with the clerk of the
court.
We ask that we be immediately provided with $2,500 as a retainer
towards those expenses and fees.
Sincerely,
Jeremiah S. Gutman
JSG/Wl
Enclosures
bee: A.J. Weberman
.  
LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY 1913-1929
THEODORE GUTMAN 1913-1946
GEORGE GOLDBERG 1913-1960
.JEREMIAH S . GUTMAN
PHILIP KAPLAN
EUGENE N . HARLEY
Alan J. Weberman
May 28, 1992
318 Third Avenue, Apt. 520
New York, NY 10010
Dear AJ:
275 SEVENTH AVENUE, SUITE 1776
NEWYORK, N.Y. 10001
TELEPHONE 212/607-9 7 33
FAX (212) 607-9737
WESTCHESTER OFf"'ICE
2 RIVERVIEW PLACE
HASTING5-0N-HUDSON , N . Y . 107 0C
014 / 478-3SSO
Enclosed is a printout of your account which gives you
credit for the $524.75 you mentio her day. As you
know, the lawsuit has been c need and th preliminary
legal work done, and cour iling fee paid tc.
I would apprecia
JSG: j f
Enc.
payment as soon you can manage it.
Sincerely,
Date 05/27/92
LEVY, GUTMAN, GOLDBERG & KAPLAN
ATTORNEYS AT LAW
275 AVENUE
NEW YORK, NEW YQRK 10001
Levy, Gutmau   Kaplan
Client Ledger Listing For 0808, Alan J. Weberman
Date Seq.# Matt
12/23 26464
.01/24 27090
102/25 27236
12/10 26586 1
12/16 26587 1
12/23 26588 l
01/07 27026 1
01/27 27027 1
01/31 27279 1
02/04 27280 1
02/13 27281 1
02/18 27282 1
02/20 27283 1
02/26 27284 1
02/27 27285 1
03/03 27779 1
03/09 27780 1
03/19 27781 1
03/23 27782 1
05/04 28066 1
05/05 28067 1
05/20 28068 1
05/20 28069 1
05/21 28078 1
Item
POST
PAYMNT
PAYMNT
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
FEE
Cost Adv. Postage .
Payment Thank You
Payment Thank You
JSG 92:Tcs re:Rob/photos, a
JSG 92:Tramp M
1
. JSG 92:Ls,TASA & G·erriilla
JSG 92:1/7-15 Cl Tc/TASA rp
I
Cl/ Cl here/ arrange ·2nd re
JSG 92:1/27-30 Credentials
Tcs/corr./arrange 2nd opini
JSG 92:L Tasa i
JSG 92:AmEx draft
& out i
JSG 92:AAron demand in & ba
L TASA/Fahey
JSG 92:Fahey Tc/Tc Cl/follo
FOIA/Kay lttr in & out
JSG 92:TASA Tc
ENH 92:Tcs Genna re:Tramp.
I
ENH 92:Tc AJ re:Genna
JSG 92:3/3-6 Foia corr./Tra
AJ here/L Fahey
JSG 92:3/9-13 Fahey/TASA/Cl
Tcs
JSG 92:Tasa L & Ans.;
JSG 92:L Kay & AJ re:FBI/Fo
ENH 92 :Reseco.rch/FOIA co!:!pla
ENH 92:Proof Cmpt, Verif.
ENH 92: Summons, Desig.. shee
cost Adv. - Court Filing Fe
ENH 92:To EDNY - file cmpt
AVSA/mail serve AG & FBI
Current Balance
BillQty
1. 00
1.00
1.00
0.40
0.20
0.30
1.50
0.60
0.10
0.60
0.30
0.50
0.10
0.30
0.20
1.50
0.50
0.10
0.20
1. 80
0.20
1.20
1.00
2.00
Rate
2.25
-227.50
-524.75
250.00
250.00
250.00
250.00
250.00
250.00
250.00
250.00
250.00
250.00
215.00
215.00
250.00
250.00
250.00
250.00
215.00
215.00
215.00
120.00
215.00
Page 1
Amoun·
'2. 2!
-227.51
-524. 7!
100.01
50.01
75.01
375.01
150. 01
25. 01
150.01
75.01
125.01
25.01
64.51
43.01
375.01
125.01
25. 01
50.01
387.01
43.0
258. 01
120 .ol
430'. 01
2320.51
- · ,.; LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY IQI3· 1QZQ
THEODORE GUTMAN IQI3-IQ46
GEORGE GOLDBERG IQI3-IQBO
.JEREMIAH S . OUTMAN
PHILIP KAPLAN
EUGENE N . HARLEY
Mr. Aron Kay
424 Brighton Beach
Bro oklyn, New York
Dear Mr. KAy:
Avenue
11235
May 21, 1992
Re: FBI
275 SEVENTH AVENUE , SUITE 177e
NEWYORK, N . Y . 10001
TELEPHONE 212/807-9 7 33
FAX (212> B07·Q737
    .. O ... P't C E.
2 RIVERVIEW PLACE
HASTIHOS-OH- HUOSOH, N . Y . 1070e
QI4 / -47B·3!5SQ
The summons and complaint were
enclose a copy. Service has
sixty days to serve an answer.
filed . and the action commenced. I
been completed and Defendant has
truly yours,

ENH/ wl
Enclosure
c c : Alan J. Weberman
'
•:
. I
lA
,.
'
UNITED STATES DISTRICT COURT
. .
EASTERN Dii:S,TRICT OF NEW YORK

ARON KAY,.
Plaintiff,
-against-
FEDERAL'"BuREA:U OF INVESTIGATION,
..
. :'.<o
Defendant.

 
,--...
'::·
PLAINTIFF MEMORANDUM OF LAW .
IN SUPPORT OF MOTION
FOR JUDICIAL SUPERVISION
AND OTHER RELIEF

Eugene N. Harley (5578)
Jeremiah s. Gutman
Levy, Gutman, Goldberg & Kaplan
Attorneys for Plaintiff
275 Seventh Avenue, Suite 1776
New York, New York 10001
(212) 807-9733 '
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
ARON KAY,
Plaintiff,
-against-
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
----------------------------------X
PLAINTIFF MEMORANDUM OF LAW
IN SUPPORT OF MOTION
FOR JUDICIAL SUPERVISION
AND OTHER RELIEF
INTRODUCTION
Plaintiff filed a Freedom of Information Act (FOIA) request
for a single document. When the Defendant Federal Bureau of
Investigation failed to respond, Plaintiff commenced and action.
The Plaintiff finally responded with a heavily excised document
and Plaintiff filed an administrative appeal. Belatedly,
Defendant replied that it would not process the appeal because
this action is pending. Plaintiff, by this motion, merely seeks
to have this Court retain jurisdiction of the action while
requiring Defendant to move forward expeditiously with the
administrative appeal in order that a final determination can be
made on Plaintiff's FOIA request.
ARGUMENT
The situation existing in the present case is exactly the
kind of situation contemplated by the Act, 5 USC§552(a) (b)C and
permits the Court to retain jurisdiction while the agency deals
f
permits the Court to retain jurisdiction while the agency deals
with its administrative processing in a reasonable manner. See
Grove v. C.I.A. 752 F.Supp. 28,31 (D.D.C. 1990); Allen v. Federal
Bureau of Investigation 551 F.Supp. 694,696 (D.D.C. 1982).
Plaintiff has exhausted his administrative remedies. The
request for a single document, specifically described, was made
on February 15 , 1992 and received on February 20,
1992.
Plaintiff commenced this action on May 21, 1992, approximately
ninety days after the request. The response and excised document
was released on June 5, 1992, and an appeal was filed on June 15,
1992. Defendant, with twenty days to respond to the appeal
50.S.C.§552(a) (b) (A) (ii) responded seventy-five days later saying
that it was closing its appeal due to the pending litigation.
Plaintiff has acted in good faith throughout, despite
unconscionable delays by the Defendant in responding to a request
for a single document, specifically described. Its actions .serve
only to frustrate first the Plaintiff and now this Court with
respect to the clear langauge of the Act.
None of the reasons set forth in the act in subsection
(a) (6) (B) would be applicable to a request for an extension for
even ten days, much less the interminable delays of the Defendant
thus far. Plaintiff seeks only a single document concerning
which a decision on the administrative appeal should be made
swiftly.
This Court may, and should, require the Defendant agency to
complete the administrative appeal within a specified time so
2
(
that this matter can proceed to a determination. This Court must
retain jurisdiction while the administrative appeal is completed.
Dated: New York, New York
September ll, 1992
one   fiaf:t: om)
e emiah S. Gutman
Levy, Gutman, Goldberg & Kaplan
Attorneys for Plaintiff
275 Seventh Avenue, Suite 1776
New York, New York 10001
(212) 807-9733
3
i
'
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------X
ARON KAY,
Plaintiff,
against -
FEDERAL BUREAU OF INVESTIGATION,
Defendant_
-------------------------------X
- _,
Index No.
92 Civ. 2438
(KORMAN)
NOTICE OF MOTION
PLEASE TAKE NOTICE, that upon the annexed affidavit of
EUGENE N. HARLEY, sworn to the 29th day of September, 1992,
Plaintiff will move this Court in Court Room 6, 225 Cadman
Plaza East, Brooklyn, New York, on the 30th day of October
1992 at 11:00 o'clock in the fore noon of that day or as soon
thereafter as counsel can be heard for an Order requiring
Defendant to respond to Plaintiff's administrative appeal,
retaining jurisdiction of the action, and exercising close
supervision of the action to insure reasonable administrative
processing of the claim, and granting to Plaintiff such
other, further and different relief as may be just and
proper.
Dated: New York, New York
September 29, 1992
TO: Andrew J. Maloney
EN. HARLEY (
JE MIAH S- GUTMAN
LEVY, GUTMAN, GOLDBERG & KAPLAN
Attorneys for Plaintiff
275 Seventh Avenue - Suite 1776
New York, New York 10001
(212) 807-9733
United States Attorney
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
Attn: Sara Sum, Esq.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------x
ARON KAY,
Plaintiff,
- against -
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
----------------------------------x
STATE OF NEW YORK
COUNTY OF NEW YORK
)
) ss. :
)
Index No.
92 Civ. 2438
(KORMAN, J.)
AFFIDAVIT
EUGENE N. HARLEY, being duly sworn, deposes and says:
1. I am an attorney in the firm of LEVY, GUTMAN, GOLDBERG
& KAPLAN, attorneys for Plaintiff herein. I am fully familiar
with the facts of this matter and make this affidavit in support
of the within motion to regulate the status of this action
pending an administrative appeal.
2. This is an action under the Freedom of Information Act
(FOIA) 5 u.s.c. § 552 et seq., commenced on May 21, 1992
following Defendant's failure to provide the requested document
within the time period specified in the Act. The request was
made on February 15, 1992 [a copy of the request is annexed as
Exhibit A]
3. Thereafter, On June 5, 1992, Defendant responded to the
request by letter enclosing an excised copy of the single
document request. [A copy of the letter of June 5, 1992 is
annexed as Exhibit B, the document is annexed as Exhibit CJ
4. This office, on behalf of Plaintiff, filed an
administrative appeal from the excisions on June 15, 1992. [A
copy of the administrative appeal is annexed as Exhibit D]
5. Defendant responded by letter dated August 31, 1992,
nearly seventy-five days later, although the Act provides for a
response to an administrative appeal within twenty days. The
letter said, in essence, that the administrative appeal was being
closed due to the existence of this action. [A copy of
Defendant's letter of August 31, 1992 is annexed as Exhibit D]
6. Although a Plaintiff must exhaust his administrative
remedies prior to filing suit, a requester is deemed to have
exhausted said remedies if the Agency in question fails to comply
with the FOIA's time limits for a response. (5 U.S.C. §
(a) (6) (c). Defendant had ten (10) days to respond to
Plaintiff's original request and Plaintiff waited approximately
ninety days before filing a response.
7. The same Section 5 U.S.C. § (a) (6) (c) provides that if
the Agency can show exceptional circumstances, and that it is
exercising die diligence, the Court shall retain jurisdiction and
allow the Agency time to complete it review.
8. Plaintiff wishes the Defendant to finish its review by
acting on the administrative appeal. This will give the COurt a
more complete record upon which to review whether or not the
Defendant has properly exercised its discretion in excising
portions of the requested document.
9. Plaintiff attempted to obviate the necessity of this
motion by'stipulation. Annexed hereto as Exhibits F and G are a
letter and proposed stipulation to hold this action in abeyance
- 2 -
pending an administrative determination. Defendant decided not
to sign the stipulation but instead an answer to the complaint
alleging, among other things, lack of subject matter,
jurisdiction and failure to exhaust administrative remedies.
10. In this motion, Plaintiff seeks to have the Court
retain jurisdiction over the action, require Defendant to
complete its administrative appeal, and to monitor Defendant's
diligence in responding to the appeal which, I repeat, concerns
only a single document.
11. Defendant's action is an attempt to frustrate both the
administrative appeal and this action. It stops the appeal and
frustrates review.
12. The relief requested by Plaintiff is consistent with
the Act and, in fact contemplated, by the Act. It continues the
administrative process while this action remains in existence,
and provides a spur to the Agency to diligently complete the
process in order to provide meaningful review by this Court.
WHEREFORE, deponent respectfully requests that the relief
prayed for herein be granted, together with such other, further
and different relief as may be just and proper.
JEREMIAH S. GUTMAN
    Pu_blic, State of New York
OuahfJed m Westchester Coumy
. No. 60-6709850
CommiSSion Expires Feb 28.
- 3 -
Freedom of Information Officer
Federal Bureau of Investigation
9th and Pennsylvania Avenue N.W.
Washington, D.C. 20535
Re: Freedom of Information Act Request
Dear Sir or Madam:
Under the provisions of the Freedom of Information Act, 5 U.S.C
552, I hereby request access to a certain two-page FBI teletTI
from Special Agent ·in Charge, Houston, to Special Agents i
charge, Lalla.::; d?.:terl NovP.mber 26, 1963.
believe this document is or was at one· time located in the Dallc
field office of the FBI and is known, or at one time was knowr
as Dallas Field Office Document No. 89-43-879.
I am making this request primarily for the benefit of the publi
because I believe that the document contains information whic
the public is entitled to have and I therefore request that yc
reduce or waive any fees which may in involved for searching fc
or copying the document.
If all or any part of this request
specific exemption which you think
provide me with copies of all
available to me.
is denied, please cite at
justifies your refusal at
relevant appeal procedure
Since all I seek is a single document, the existence of a backlc
of searches should in no way interfere with the ability of you
Bureau to comply with this request within the ten days provide
by la;.;, and I therefore look forward to a prompt and complet
response within the time provided by law.
Dat;::c!.: Yc:::-1-:,  
, 1992
I'' LVIN RA8 c.. • •
.... ur:Jzc.
.vJ
SS# 55l-80-BJ.80
D.O.B. ll/l4/49
Residence
424 Brighton
Brooklyn, NY ll235
Avenu
Qual!aed tn Ktngs Courr.:
{bbmmrsston Exprres Feb_ 28 . -·· )
Please address response to this Freedom
Request to my attorneys Levy, Gutman, Goldberg &
of Info=atio
Kaplan, 275 7t
E
h" '+ Jl
x _!{
Mr. Aron Morton Kay
cjo Levy, Gutman, Goldberg
& Kaplan
Suite 1776
275 7th Avenue
New York, NY 10001
Dear Mr. Kay:
---- --r---- --------
Federal Bureau oflnvestigation'
Washington, D.C. 20535
June 5, 1992
Request Number: 357579
Re: FBI teletype/from SAC HO
to SAC(S) DL and NO
Enclosed is an excised copy of the teletype you
requested dated November 26, 1963. Also enclosed is a copy of
the explanation of exemptions sheet.
You may submit an appeal from any denial contained
herein by writing to the Assistant Attorney General, Office of
Legal Policy (Attention: Office of Information and Privacy) ,
United States Department of Justice, Washington, D.C. 20530,
within thirty days from receipt of this letter. The envelope and
the letter should be clearly marked "Freedom of Information
Appeal" or "Information Appeal." Please cite the FOIPA number
assigned to your request so that it may be easily identified.
Enclosures (2)
Sincerely your[s
9
/ '/ - /4-JJ
. ~ ,;"- , ~ ' - -   - -   - ' · · · L C..z___
J. Kevin O'Brien, Chief
Freedom of Information- ·
Privacy Acts Section
Information Hanagen:.ent
Division
<Oxhib:I __ B=----
-.. ·,=
L
•.
URGENT ,ll-26-63 8-)1
PM VBR
TO .SACS DALLAS AND. NUl ORLEANS
FROM SAC, HOUSTON
(
·: .
'
.. ·.·'" .... . .'
•• •• ', !..._, ••;: ;._: -.
ASSASSINATION OF PRESIDENT F. KENNEDY, NOVEMBER TWENTY
1V0
1
SIXTYTHREE, DALLAS, TEXAS.
.
. '
. .
'·" ,_..,
RE ALVIN AND DAVID. ii. _
FOUR FIFTEEN PM NOV. TWENTYSIX
.. : ... .'f '.
-. . . . . .. ; ....
. .ll£AUBAOUEF AND DAVID ii. FERRIE AT THE DRifTWOOD MOTOR EOTEL,
r;ALVESTON. INDICATED !,HEY WERE FRIENDS OF OSWALD. ·
'
.... ·
1 • ·.::- .·;. ,: • .:,. .  
..
)
• ..... .... • :.-:. ·:. ·.., ,; ;·: ""!.' -
l'HA T ABOVE INDIVIDUALS REGISTERED IN .1!.001'! ONE ONE SEVEN
-·-· ....
DRIFTWOOD MOTOR HOTEL, ONE TWO EIGHT BOULEVARD,
·- .
• :- •;••·• I •.:·:.;
CALVESTON, ELEVEN PM ON NOVEMBER TliENTYTHREE SIXTYTHRIT, AND
OUT AT TWO 1'!1 <JN JiOVEMBER TWDITYFOUR •. ·c;AVE
THEIR ADDRESS SIX ONI EIGHT NORTH NEw
WERE DRIVING
END PAGE ON£
'
Exhibit
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- . .
. ·.2. . , ...
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'
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•.

PAGE TWO
  lOUISIANA LICENSE SEVEN TOUR DASH
- - . . .
FIVE.ALS.O IN THE -ROOM WITH 'iAS s. r.or). .·
. WERE WHITE MALES. -ALSO IN THE ROOM WAS BLOND 'iHITE TEMALE,

..
: ....
' .
·... . . . .. "':.. ,_._
-- ...) -. .. .
'· .
... /.
NAME UNKNOVN.
. •':- .. ' .. -.-.. -. __ ,
. WHILE AT MOTEL PLACED LONG DISTANCE CALL TO
ALEXANDRIA, LOUISIANA, TELEPHONE NUMBER UNKNOWN.
HOUSTON DOES NOT !NOW SIGNIFICANCE Of ABOVE AND
... .:
.. ·. - -· .
• .• ••
.. ·."::'.·· ... -:-':_: ... : '
HIS CONTACT IIITH FBI.
. .. :· .·:·.· ·.-.-- .: '·:.-f·· ...··:- ;;:._ . ..
UAC DALLAS, NEW ORLEANS ATTEMPT TO IDENTIFY ABOVE · .
, .
INDIVIDUALS AND THEIR POSSIBLE CONNECTION iiTH LEE HARVEY
.. osWALD. ....-.. . -......
...
!ND AND ACK
-··-
. ..
. .
-...... - . ·"'
'
. . .
• • ,t - ·.' .-
: ._:. J
.
DL !-14 PM CST OK ·:rBI DL lJH
NO ADV E SEP TU CLR
-· : :· ... - . . .
; ..
-----.- .
0
LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY
THEODORI!:: OUTMAN IQJ3-IQA8
OEOROE GOLDe ERG IQI.:J-IOeO
..JEREMIAH 5. OUTMAN
PHILIP KAPLAN
EUOEHE H. HARLEY
Via Certified Mail - RRR
Assistant Attorney General
Office of Legal Policy
Attn: Office of Information and Privacy
United States Department of Justice
Washington, D.C. 20530
275 SEVENTH AVENUE, SUITE 1770
NEWYORK, N.Y. 10001
TELEPHONE 212/807-9733
  OI'"I'"ICII';
Z RIVERVIEW PLACE
M. Y • ]0700
Ql.oil/"'l71"1-3!!!!0
June 15, 1992
Re: Freedom of Information Appeal/Information Appeal
Request No. 357579
United States District Court, Eastern District of New York
case No. 92 Civ. 2439 (Korman, J.)
Dear Madam or Sir:
Aron Morton Kay, by his undersigned attorneys, hereby appeals all
excisions made to a certain teletype dated November 26, 1963.
The excisions are all justified by purported reliance upon
5 United States Code §552 (b) (7) (D).
It is asserted that, nearly three decades after the event,
disclosure of the material excised "could reasonably be expected
to disclose the identity of a confidential source. . . and
information furnished by a confidential source."
The teletype purports to inform the SACs at Dallas and New
Orleans that something was served by undisclosed people on two
named persons, Alvin Beaubaoeuf and David W. Ferrie (or Ferie) at
the Driftwood Motor Hotel in Galveston, Texas within the
jurisdiction of Houston SAC. Next is deleted the name of a
person who "indicated they were friends of Oswald. " The person
who so indicated would, by inevitable implication, be either
Alvin Beaubaoeuf or David W. Ferrie. Since the identity of both
those individuals is disclosed at least twice in the portions of
the teletype not excised, the excision at this point makes no
sense and no confidential informant could be revealed by
Exhibic
j)

I
1..
'0
Jeremiah S. Gutman, Esq.
Levy, Gutman, Goldberg
and Kaplan
275 Seventh Avenue
Suite 1776
New York, N.Y. 10001
Dear Mr. Gutman:
.,
Office of Policy and Cornmunicatibns
Office of Infonnation aruJ. Privacy
l#lshingwn, D.C. 20530
Re: Appeal No. 92-1572
RIJI: DAH
You appealed from the action of the Federal Bureau of
Investigation on your request for access to records pertaining to
your client, Aron Morton Kay.
Because this request is presently the subject of judicial
review, administrative action by this Office would be
inappropriate. Accordingly, I am closing your administrative
appeal in this Office.
Sincerely,
Richard L. Huff, Co-Director
Office of Information and Privacy
Exn:c;:
Pg
I
Ji
I
L..AW
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY 1013-U.ZO
THEOCOR!: OUTMAN •
O!:.ORO!:. OOLD!!IERO 1013-1060
.J!:.R!:.MIAH OUTMAN
PHILIP KAPLAN
EUOEN!:. N. HARLEY
Sara Lum, Esq.
United States Courthouse
225 Cadman Plaza East
Brooklyn, NY 11201
Re: Kay v. FBI, 92 Civ. 2438
Dear Ms. Lum:
27!5 SEVENTH AVENUE, SUITEJ770
NEW YORK, N.Y. 10001
TELEPHONE 212/807-9733
rAX l2J2> eo7-0737
O,,..,CI:
Z
  N.Y. 1070e
June 15, 1992
In accordance with our conversation of Friday evening, enclosed
you will find in triplicate a proposed stipulation.
It is the intention of the plaintiff, as recited in the
stipulation, to file an administrative appeal with the assistant
Attorney General, Office of Legal Policy at the office of the
Department of Justice in Washington. For your information, a
copy of the letter enclosing the excised production is enclosed.
By stipulating to stay this action until termination of the
administrative proceeding, it will be possible to discontinue the
action in the event that the plaintiff is satisfied but to file
an amended or supplemental complaint to bring the matter up to
date and address the excision rather than the entire denial
should the proceeding end in that manner.·
If you have any difficulties, comments or suggestions, I will be
happy to hear from you.
Very truly yours,
Jeremiah s. Gutman
JSGjmw
Encl.
cc: Aron Kay
bee: Alan J. Weberman
Exh:o;·t
F
pg
I I
J'
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------
ARON KAY,
Plaintiff,
-against-
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
------------------------------------
Index No. 92 Civ. 2438
(Korman, J. )
STIPULATION
IT IS HEREBY STIPULATED AND AGREED by and between the
attorneys for the respective parties hereto as follows:
1. The service and verified complaint was served herein by
mail on the 21st of May, 1992.
2. The complaint seeks to compel the defendant Federal
Bureau of Investigation to produce a certain document pursuant to
the Freedom of Information Act.
3. After the service of the complaint and on June 5, 1992
the defendant Federal Bureau of Investigation provided to
plaintiff an excised copy of the document requested.
4. The plaintiff intends to exercise his right to appeal
the excisions from that document.
Ex hI b!t ---=-G::....---
Z..
' '
5. The parties agree that this action be stayed pending
the termination of that appeal and all administrative proceedings
in connection therewith.
Dated: June 15, 1992
Levy, Gutman, Goldberg & Kaplan
Attorneys for Plaintiff
By: ________________________ __
Andrew J. Maloney
United States Attorney for
the Eastern District of New York
Attorney for Defendant
By:
                                     
Assistant u.s. Attorney
2
Exhibit __    
Pg
of
,.
(

.       .
. .:,.'
i.
{
,.,
.,
. . ·. : · •. ,   .:: . .
URGENT .11-26-63 8-Jl PM VBR
. . .
TO SACS DALLAS AND NEil ORLEANS
fROM SAC, HOUSTON
ASSASSINATION OF PRESIDENT ..JOHN F. KENNEDY, NOVEMBER lVENTY
1VO,
l
SIXTYTHREE, DALLAS, TEXAS. .
RE ALVIN AND DAVID. W. _ . .. :,,;.: ·.
"liT FOUR FIFTEEN PM NOV. T\iENTYSU .. ··:::.if·,,
.. . .llEAUBAOUEF AND DAVID W. FERRIE AT THE DRifTWOOD MOTOR liOT.El.,
lHEY WERE FRIENDS OF OSWALD. ··
\ ."I.:._:. •• ·;:; ..
ND .DETERMINED
..
) . . .
. -   .....
l'HA T ABOVE INDIVIDUALS REGISTERED IN .ROOM ONE tiNE SEVEN ' ... ·. . .
DRIFTWOOD MOTOR HOTEL, THREE ONE TWO EIGHT BOULEVARD, .
: · ... ·. -:-:· ...
. ·;- .
....... ······'·!'' -·-
. . . . . . .. .:.. : .
. .
c:;ALVESTON, ELEVEN PM ON NOVEMBER TWDITYTRREE SIXTYTHREE, AND
CHECKED OUT AT TWO PM <lN )IOVEMBER TWENTYFOUR •.. ,AVE
THEIR ADDRESS SIX ONE EIGHT NORTH HEW
VERI DRIVING
END PAGE ONE
.. ... :.:.
• • • .... .
- . . ':· ·, .. .
. '
\. . --·-··--···- ···- _ ... ,.,__ • .... ·· • _r..-- ....... . .
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,....__

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PAGE IlriO
: ....... ':-· .. -·
UNKNOWN, LOUISIANA LICENSE SEVEN II,HT tOUR DASH EIGHT ·WINE
..
·..,. . - ·. -
.J -. : .
TIVE •
· ALSO IN THE ROOM WITH THEM WAS
. WERE WHITE MALES. -ALSO IN THE ROOM YAS BLOND WHITE TEMALE,
' .f.
NAME UNKNOWN.
. WHILE AT MOTEL PLACED LONG DISTANCE CALL TO
ALEXANDRIA, LOUISIANA, TELEPHONE NUMBER UNKNOWN.
HOUSTON DOES NOT XNOW SIGNIFICANCE OF ABOVE AND
. .· :- .. ' .... ----··. -.
"
. :. . .
----·-·- ....... ..... .: ';:t": .• -:- '"":" .
COMPROMISE SOURCE WHO DOES NOT WANT
..
. .
.: •. )..:.·.f·.·;\'- /::.. .....
UAC DALLAS, NDrl ORLEANS ATTEMPT TO IDENTIFY ABOVE · · .  
, .
INDIVIDUALS AND !HEIR POSSIBLE CONNECTION WITH LEE HARVEY
.. QSiiALD.
I:ND AND ACK
DL 8-14 PM CST OK .FBI DL LJH
NO ADV E SEP TU CLR
. . 0
..... ·--,-------····--
' .
....
. .. · .. -
·, . - .
. ':· .. · ·. -..... ' . ,: . ·.: .. - .. ·
-·- .' . : '- ;.:
. - . .
.... • ?-..
·, : ... - ,. .. --
;··
-- _.......,- .
.......
LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY
1913-1929
THEODORE GUTMAN 1913-1948
GEORGE GOLDBERG 1913-1980
JEREMIAH S, GUTMAN
PHILIP KAPLAN
EUGENE N. HARLEY
 
Mr. Aron Kay
424 Brighton Beach Avenue
Brooklyn, NY 11235
Dear Aron:
2 75 SEVENTH AVENUE, SUITE 1778
NEWYORK, N.Y. 10001
TELEPHONE 212/807-9733
FAX C212l 807-Q737
WESTCHESTER OFFICE
2 R-IVERVIEW PLACE
HASTII'IG5-0N-HUDSOI'I, I'I,Y, 10708
October 16, 1992
I have just reviewed the motion papers of the government
in support of its application for summary judgment etc.
A copy of those papers has already been sent to you by
Eugene.
All the nonsense about whether the court should compel
decision of the appeal etc. is, in my judgment, moot because
the government is now moving for summary judgment on the
substantive issues and is therefore submitting the whole
.thing to the court as though the appeal has been denied and I
think that is the position we should take in order to move
this along most expeditiously without be.i..ng fo:rced back into
the bureaucratic procedure.- I am grateful the government has
proceeded in this way.
Our job is to convince the court that the deleted
portions of the document do not or cannot reveal "the
identity of a confidential source" or lead to the revelation
of information which might "disclose that source's identity."
We have until October 23 to deliver to the US attorney
copies of our opposing papers for the October 30 return date
on the motion. I suggest we meet the deadline and do not put
it off and that is why I am asking you to take some immediate
action. ''
The action I want is for you logically to set out
everything you know or think you know, based upon the context
of the facts as you know them to be, to show that the speaker
whose identity the government is trying to c 1 was not or
is not an "informer" and was not engaged · any
"confidential" disclosures to the gover ent.
Perhaps the best
be for AJ to call and
it through within the
JSG:in
cc: A.J. Weberman
LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY 1913·1929
THEODORE GUTMAN IQI3·1Q48
GEORGE GOLDBERG 1913·1980
JEREMIAH S . GUTMAN
PHILIP KAPLAN
EUGENE N . HARLEY
Mr. Aron Kay
424 Brighton Beach Ave.
Brooklyn, NY 11235
Re: FBI
Dear Mr. Kay:
275 SEVENTH AVENUE , SUITE 1776
NEWYORK, N . Y . 10001
TELEPHONE 212/807·9733
FAX (2121807· Q737
Wt:5TCHE:!ITE:R Otr,.ICI!:
2 RIVERVIEW PLACE
HASTINGS-ON-HUDSON , N . Y . 10700
QI"I / 47B-3!5!5Q
October 23, 1992
I enclose our answering statement and memorandum of law.
The motion will be argued on October 30, 1992.
v_:;..ry -trul /; y yoy±s,
/ ------ . - - • 0 I_ ;/
. _.....-- .• . / . / . I: , -· - I
(__ :.r  
EUGENE N. HARLEY
ENH: in / -
cc: A.J. Weberman
  -- _'f
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
ARON KAY,
Plaintiff,
against -
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
------------------------------------x
PLAINTIFF'S STATEMENT
PURSUANT TO RULE 3(g):
MATERIAL FACTS IN DISPUTE
civil Action
No. CV 92-2438
(Korman, J.)
Pursuant to Rule 3 (g) of the Civil Rules of this Court,
Plaintiff submits the following statement of material facts
concerning which there is a genuine issue to be tried. This
statement is submitted in opposition to Defendant's motion for
summary judgment.
The excisions from the document could not have been made to
protect the identity of a confidential source because:
A. As to the first excision consisting of a portion of one
line, two complete lines, and a portion of a fourth line, the
context makes clear, and the circumstances .made known in the
numerous publications and materials which have been widely
circulated and publicized since the assassination of President
John F. Kennedy confirm, that what has been excised is in all
likelihood a statement to the effect that information had come to
the Federal Bureau of Investigation that "Alvin Beaubaoeuf and
David W. Ferrie" had checked into the Driftwood Motor Hotel at
the time and place indicated. The identity of the investigating
agents of the Federal Bureau of Investigation on November 2 6,
1963, cannot in any way fit within the asserted exception of a
confidential source. The identity of the room clerk of other
employee of the Motel who three decades ago may have called the
FBI can no longer reasonably be "protected. " Obviously, the
agents of the Federal Bureau of Investigation were quite properly
following up leads generated at the Motel or out of New Orleans,
or elsewhere nearby in Louisiana, as to individuals associated
with the presumed assassin Oswald. It is unlikely, in the
context of a communication from the Houston office of the FBI to
the Dallas and New Orleans offices of the FBI, that the entirety
of the deleted lines could, or even might, identify a
confidential source of twenty-nine years ago. If by some strange
argument, the FBI is contending that the confidential source is
either "Alvin Beaubaoeuf" andjor "David W. Ferrie," the identity
of these two individuals is specifically set forth at least twice
in the very communication at issue. If, upon examining the text
in camera this court concludes that there is a name or
identifying word or two in the three plus lines deleted, all the
other neutral words should, at a minimum, be revealed.
B. As to the next deletion, consisting of what appears to
be a single word two lines below the first deletion, this is
likely the name of a person. Based upon the physical size of the
deletion and the location thereof ·and the context of the
sentence, Plaintiff believes that the word deleted is in all
likelihood the name "Ferrie," or
11
They" or
11
The two" or
equivalent, giving no more information than already revealed
elsewhere in the document. The context of the document ·•indicates
that a conversation had been had between one or more FBI agents
- 2 -
to the effect that the "Beaubaoeuf" and "Ferrie" persons had said
"they were friends of Oswald." The context indicates that the
reference at that point could logically be only as Plaintiff
postulates. Since these two people are both clearly and
specifically named in the document and the context makes clear
that some one or both "indicated that they were friends of
Oswald,
11
it is not conceivable that the identity of some other
third party not already named in the document is what was deleted
at this place.
c. Here again, as in connection with all the deletions
purportedly justified, the argument is made that the sole basis
of exclusion is "to protect the identity of a confidential source
who provided information." This deletion of the opening of a
paragraph indicates that some one or more persons did something
as a result of which that person or those persons made a
determination that Beaubaoeuf and Ferrie had registered in a
particular room at
communication, at a
the motel, identified
specific hour, giving
elsewhere in the
information about
themselves. The deletion can logically only be action by one or
more of the FBI agents, or inquiry of a room clerk, or
examination of a room register to make the determination.
It is
beyond belief that "a confidential source" who had been granted
"an express grant of confidentiality" was the sour.ce of that kind
of information taken from the legally required room register, a
public document.
D. In the penultimate paragraph on the second and last
- 3 -
page of the subject communication, the three separate deletions
are, at the very least, logically arguably inconsistent with
deletion of the identity of a confidential source. Here the
communication, from the portion of the grammatical structure
left, would indicate that the author believes some kind of
action, statement, or disclosure would compromise a source. The
words deleted could not possibly be the "source" which would be
compromised by whatever action might lead to the feared
compromising. The structure of the language and the context of
the verbiage preceding and following the first deletion in the
first and second lines of the penultimate paragraph do not
logically lead to a possible parsing which could identify or lead
to the identification of a confidential source which or who is
not identified, other than the following statement that whoever
this "source" is "does not want" someone, or some people or some
entity, to know that this unnamed "source" had some kind of
contact with the FBI. Identification of whoever the unnamed
source did not want to know of the contact does not identify the
source.
E. There is no way that merely looking at the deletions
and the bald assertion in paragraph ·s of the FBI's Rule 3 (g)
statement can lead to a determination which would justify the
unsupported assertion that every single one of the excisions in
the document was made for the sole purpose of protecting the
identity of a confidential source and there are thus genuine
- 4 -
.... ••• •   __ ,.. --
··<r'ji: .
--':
,t
i:#5sues of fact to be determined as to what words have been

•·· .. ".;;·.-!
York,
)¢;>'··october
t
:
'
New York
' 1992
Respectfully Submitted,
LEVY, GUTMAN, GOLDBERG & KAPLAN
Attorneys for Plaintiff
275 - Suite 1776
New New 10001 .
(21Z) 807-9733/ .-"
1/ /#//?)··:
v"'if
JE
,,./,....,;'
...
AH S.
1
GUTMAJ!r
/
..
- 5 -
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
ARON KAY,
Plaintiff,
- against -
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
Civil Action
No. CV 92-2438
(Korman, J.)
------------------------------------x
PLAINTIFF'S MEMORANDUM OF LAW
IN OPPOSITION TO MOTION OF
DEFENDANT FOR SUMMARY JUDGMENT
JEREMIAH S. GUTMAN, ESQ.
(Of Counsel)
LEVY, GUTMAN, GOLDBERG & KAPLAN
Attorneys for Plaintiff
275 Seventh Avenue - Suite 1776
New York, New York 10001
(212,) 807-9733
PRELIMINARY STATEMENT
In this action under the Freedom of Information Act to
compel disclosure of a particular document by the FBI, suit was
filed when no timely response was given. After the suit was
filed, the document was disclosed with substantial deletions and
Plaintiff appealed administratively from those deletions.
When
the FBI did not act within the time provided for determining the
appeal, Plaintiff moved to compel determination of the appeal.
The FBI has now moved for summary judgment on the ground
that the deletions made are proper under the Freedom of
Information Act. Thus, the motion for summary judgment now
before this Court as a cross-motion to Plaintiff's motion
constitutes a de facto determination of the appeal against the
Plaintiff with an application to the Court to sustain the denial
of Plaintiff
1
s appeal. The FBI has thus rendered Plaintiff's
motion functionally moot but has raised a new issue on the motion
for summary judgment which Plaintiff is happy to join.
Plaintiff, therefore, and asks the Court to treat this opposition
to that motion, in conjunction with Plaintiff's Rule J(g)
statement submitted herewith, as a cross-motion for summary
judgment in favor of Plaintiff.
Point I
ALTHOUGH THERE ARE QUESTIONS OF
FACT TO BE RESOLVED, THE COURT
ITSELF CAN RESOLVE THEM IN CAMERA
As is typically the case in a Freedom of Information
redaction lawsuit, the government agency knows what has been
- 1 -
deleted and the Plaintiff does not while the agency comes in with
a conclusory allegation that what has been stricken and concealed
from the Plaintiff was properly stricken and concealed.
Here,
the FBI relies exclusively, with respect to all the redactions,
upon 5 U.S.C.
52 (b) (7) (d)
"to protect the identity of a
confidential source who provided information to the FBI, under an
express grant of confidentiality, during the course of its
criminal
investigation of the assassination of President
Kennedy."
As appears from Plaintiff's Rule 3(g) statement, the various
deletions are not consistent with the assertion of the Government
in each case.
As a matter of fact, as Plaintiff detailed in its
Rule 3 (g) statement, the assertion is inconsistent with that
position in some cases and, in other cases, the context of the
remaining language indicates
at least as plausible other
explanations of what has been removed.
Thus, the conclusory and
self-serving allegations of the FBI require testing.
Point II
THE COURT SHOULD REQUIRE THE FBI TO
DELIVER THE UNREDACTED DOCUMENT TO
THE GOVERNMENT FOR IN CAMERA INSPECTION
There are facts in dispute but t'hey can be resolved on this
motion and cross-motion.
Defendant says that the deleted words
and phrases would reveal the identity of a confidential source
and Plaintiff has advanced detailed arguments with respect to
..
each item of redaction and arguably sound refutations of the
"factual conclusions" asserted by the Government.
The only way
- 2 -
to determine the issues in each case is for the Court to direct
that the Government deliver to the Court in camera an unredacted
copy of the document so that the court can determine whether or
not the conclusory allegations of the Government are sound, or
whether the Plaintiff is not correct with respect to each or some
of the redactions.
To grant the Government summary judgment at this stage would
be to accept at face value the Government's conclusions based
upon facts (the concealed language) known to it and it alone.
In making its judgment, the Court should bear in mind that
nearly three decades have passed since the event and that the
interest in what happened and what was concealed has lead to
novelizations, fictionalizations, dramatizations and
speculations, while the writing of an accurate history based upon
the records of the time has been frustrated. Also to be borne in
mind are the underlying First Amendment principles of the free
flow· of information as well as the purpose and intent of the
Freedom of Information Act facilitating access to information
with only the exceptions provided. Those exceptions, in this
case only the one of confidential sources asserted by the
Government, should be evaluated in light of the passage of time
and the intention of Congress to protect the privacy and safety
of individuals. The application of the confidentiality of source
exception should be considered in light of the importance of
events, the passage of time and whether there   ,·to be, in
the particular circumstance as to each redaction, a requirement
- 3 -
of the confidentiality intended to be protected by Congress.
CONCLUSION
The Court should treat as moot Plaintiff's motion requiring
Defendant to determine the administrative appeal; the Court
should regard the Defendant's motion for summary judgment as an
acknowledgment that the appeal has been determined; the Court
should examine the unredacted document in camera in order to test
the assertions of Defendant that the deletions fit within the
confidentiality exception carved out by Congress; and the Court
should order Defendants to disclose to Plaintiff each and every
redacted word found by the Court not to fit within the precise
asserted exemption; and Plaintiff should be granted such other
and further relief as is just.
Dated: New York, New York
October 23, 1992
Respectfully submitted,
LEVY, GUTMAN, GOLDBERG & KAPLAN
Attorneys for Plaintiff
275 Seventh Avenue - Suite 1776
New York, New York 10001
(212) 807-9733
..
•.
- 4 -
I..AW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
L.EOPOL.D L.EVY 1913-1929
THEODORE GUTMAN 1913-1948
GEORGE GOI..DBERG 1913-1980
.JEREMIAH S . GUTMAN
PHIL.IP KAPI..AN
EUGENE N . HARL.EY
Mr. Aron Kay
424 Brighton Beach
Brooklyn, New York
Re: FBI
Dear Mr. Kay:
Avenue
11235
275 SEVENTH AVENUE, SUITE 1776
NEWYORK, N . Y . 10001
TEI..EPHONE 212/807-9733
FAX 1212) 807-9737
OI"P"ICE
2 RIVERVIEW PLACE
HASTINGS-ON- HUDSON, N .Y. 1070e
Qlo4/ o478 ·3!5!5Q
October 16, 1992
judgment.
arguments,
I enclose a copy of the FBI's
If either you or A.J. have any
etc., please let us know.
motion for summary
thoughts, comments,
ENHjam
Enclosure
cc: A.J. Weberman
  f'9Urs,
J /Ai(y:t?
/ugene N' l y
. '
RLB:SJL
F. #9204632
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - - - - - - -
- - - - -X
ARON KAY,
Plaintiff,
against -
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
- - - -X
NOTICE OF MOTION
Civil Action
No. CV 92-2438
(Korman, J. )
PLEASE TAKE NOTICE that upon the attached declaration
of Michael D. Turner, a memorandum of law, and all the pleadings
and proceedings filed herein, the defendant Federal Bureau of
Investigation will move this Court before the Honorable Edward R.
Korman United States District Judge for the Eastern District of
New York, in Courtroom 6 at the United states Courthouse, 225
Cadman Plaza East, Brooklyn, New York, on October 30, l992, at
ll:OO a.m. or as soon thereafter as counsel can be heard, for an
order pursuant to Rule 56 of the Federal Rules of Civil Procedure
granting summary judgment to the defendant.
PLEASE TAKE FURTHER NOTICE that pursuant to the Motion
Practice Rules of the Honorable Edward R. Korman, United states
District Judge, United States District Court for the Eastern
District of New York, all opposing papers, if any, must be served
and filed at least seven (7) days prior to the above return date
of the within motion.
Dated: Brooklyn, New York
  1992
By:
TO: Eugene N. Harley, Esq.
Jeremiah S. Gutman, Esq.
Andrew J. Maloney
United States Attorney
Eastern District of New York
One Pierrepont Plaza, llth Floor
Brooklyn, New York 11201

SARAH J. LUM (sl3571)
Assistant United States Attorney
(718) 330-2757/7100
Levy Gutman Goldberg & Kaplan
275 Seventh Avenue, Suite 1776
New York, NY 10001
2
D E C L A R A T I 0 N
THERESA PEKAR, hereby declares and states as
follows:
That on the 15th day of October, 1992
I caused to be hand delivered:
NOTICE OF MOTION
MEMORANDUM OF LAW
DECLARATION OF MICHAEL D. TURNER
STATEMENT PURSUANT TO RULE 3(G)
of which the annexed is a true copy, contained in
a securely enclosed postpaid wrapper directed to the
person(s) at the place(s) and address(es) as follows:
Eugene N. Harley, Esq.
Jeremiah S. Gutman, Esq.
Levy Gutman Goldberg & Kaplan
275 Seventh Avenue,   u i t ~ 1776
New York, New York 10001
The undersigned affirms under penalty of perjury
that the foregoing is true and correct.
Dated: Brooklyn, New York
October 15, 1992
A {
,.
•'
, - ,
tmi'IED STATES DISTRICT OOVRT
EASTERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - -x
AAON lCAY,
Plaintiff,
• against -
FEDERAL BVl<EAU OF Iwt:S'I'IGATION,
Pefendant.
- - - - - - - - - • - - - - - - -x
PECLARATION OF
!1! CljAEL D. 'I'URNER
Civil Action
No. CV 92a24J8
(Korman, J. )
I, Michael D. TUrner, as follows:
l. am a Speeial of the Federal aureau of
(FBI), assigned in a supervisory capacity to
Freedom of Znformation/Privacy Acts (FOIPA) Section,  
Division, at FBI (FBIHQ), Washington,
l:l.C.
2. I familiar with the procedures followed in
processing the FBI to Title 5,
United States Code, Section 552, commonly known as the Freedom of
.
Info=ation Act (FOIA), and 5 u .. s.c. S 552a, commonly known as
the Privacy Act of l974.
I am familiar With the FOIA reque5t made by Aron
Morton Kay to FB!HQ for access to a certain FEI taletype
Speeial in Charge, Houston, to Agents in
Charge, Pallas and orleans, dated NovemPer 26, 1963. All
infor.mation in this declaration is Qn
furnished to me in my official capacity.
P.F'F' 1 9 '92 1 9: 1 8

4. I this declaration in support of the
for
s. the years from 1986-91, FBI has received
an avQraqe of 15,708 FOIA requests up from an
-of 11,S35 each year during 1983-SS. This 5ignificant
qrowth.from earlier years, however, has pot been matched by
inereasQs in personnel available to process these requeGts. In
particular, the .FOIA backlog n\.111\bered 9, 266 requests at the encl
of Auqust 1992
1
which i$ almost dOuble the level it was in 1985.
Because of this of FO!A requests, the FBI was not able to
respond to   request within the 10-day statutory
6. Also contributin9 to the delay in the FBI's
rgsponse was the fact that the plaintiff had stated that the
requested material was thought to be in the "Dallas field
of the FBI," a search to be in
office. In fact, the document, in its redacted form,
h&s been available in the public reading room at FBIHQ in
Washington, D.C. for several years.
7. This document was created during the course of the
  criminal investigation of the assassination of President
John F. Kennedy.
8. This November 26, tQletype bas excised in
tour places, all under the exemption set forth in 5 u.s.c. S
(7) (D). These excisions were made to protect the
of a confidential source who provided to the FBI,
an express grant of confidentiality, durinq the course of
APR 19 '92 J9: 19
F'RC;E. 003
--
it& criminal investigation of the a5sassination of
The first excision, Which of of four
consecutive on first page, contains tht name ot the
. .
confidential source other information that •o sp.ei!ic
3
that it can reasonably be expected to reveal the identity of the
confidential source. The second excision, two lines below the
first, also contains information that is so specific that 1t can
reasonably be expected to reveal the ioentity of the
source. The third excision the name of the confidential
source ana other specific information that can reasonably bt
expQCted to reveal the identity of the confidential source.
Last, the fcurth   which covers partlJ of three on
·pa92 two of thQ teletype, also contains specific information that
ean reasonably be expeeted to disclose the identity o! the
confidential source.
I declare, under penalty of perjury, that the foregoing
is true e.nd correct, to the .best of my knOi'lledge, i·,1!onoation and
belief.
Executed: October   1992
·- Wa10hington, D.C.
APR 19 '92 19:19
TOTAL F·. 04
F'AG[. Cl04
,._.·
RLB:SJL
F. #9204632
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - -X
ARON KAY,
Plaintiff,
against -
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
- - - - - - - - - -X
STATEMENT PURSUANT
TO RULE 3(G)
civil Action
No. CV 92-2438
(Korman, J.)
Pursuant to Rule 3(g) of the Civil Rules of this
Court, defendant Federal Bureau of Investigation submits the
following statement of material facts concerning which there is
no genuine issue to be tried, in support of its motion for
summary judgment:
1. Aron Kay submitted a request dated February 15,
1992, pursuant to the Freedom of Information Act, for a two-page
FBI teletype dated November 26, 1963. This request was delivered
to the FBI on February 20, 1992.
2. Kay filed this action on May 21, 1992.
3. By letter dated June 5, 1992, the FBI responded to
Kay's FOIA request, and sent him a copy of the document.
4. The copy of the November 26, 1963 teletype provided
to Kay was redacted in several places under exemption 5 u.s.c. §
552 (b) (7) (D).
5. The excisions in the document were made to protect
the i   e n ~ i t y of a confidential source who provided information,
under an express grant of confidentiality, to the FBI during the
course of its criminal investigation of the assassination of
President John F. Kennedy.
6. By letter dated June 15, 1992, Kay submitted an
administrative appeal to the Office of Information and Privacy,
U.S. Department of Justice, to contest the excisions made in the
November 26, 1963 teletype.
7. The Office of Information and Privacy responded in
a letter dated August 31, 1992, that it would not take action on
Kay's administrative appeal in view of this pending action.
Dated: Brooklyn, New York
  1992
Respectfully submitted,
ANDREW J. MALONEY
2
United States Attorney
Eastern District of New York
One Pierrepont Plaza, 11th Fl.
Brooklyn, New York 11201
By: SARAH J. LUM
Assistant U.S. Attorney
(718)· 330-2757/7100
·;·"
1,;:'
RLB:SJL
F. #9204632
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
'
- - - - -X
ARON KAY,
Plaintiff,
- against -
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
-X
Civil Action
No. CV 92-2438
(Korman, J.)
MEMORANDUM OF LAW IN OPPOSITION
TO PLAINTIFF'S MOTION FOR
"JUDICIAL SUPERVISION," AND IN
SUPPORT OF DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
SARAH J. LUM
Assistant U.S. Attorney
(Of Counsel)
ANDREW J. MALONEY
United States Attorney
Eastern District of New York
One Pierrepont Plaza, 11th Fl.
Br9ok!yn, New York 11201
RLB: SJL
F. #9204632
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- - - - -X
ARON KAY,
Plaintiff,
- against -
FEDERAL BUREAU OF INVESTIGATION,
Defendant.
- -X
Civil Action
No. CV 92-2438
(Korman, J. )
MEMORANDUM OF LAW IN OPPOSITION
TO PLAINTIFF'S MOTION FOR
"JUDICIAL SUPERVISION," AND IN
SUPPORT OF DEFENDANT'S MOTION
FOR SUMMARY JUDGMENT
SARAH J. LUM
Assistant U.S. Attorney
(Of Counsel)
ANDREW J. MALONEY
United states Attorney
Eastern District of New York
One Pierrepont Plaza, llth Fl.
Brooklyn, New York ll20l
2
PRELIMINARY STATEMENT
Defendant Federal Bureau of Investigation (FBI) submits
this memorandum of law in opposition to plaintiff's motion for
"judicial supervision and other relief" and in support of the
FBI's motion for summary judgment. In this action, the plaintiff
sought the release of a two-page teletype pursuant to the Freedom
of Information Act (FOIA) . After this suit was filed, the FBI
provided the plaintiff with a copy of the requested document,
redacted in several places to protect the identity of a
confidential source. The plaintiff did not dismiss his action,
nor did he seek to amend the complaint. Instead, he filed an
administrative appeal and now asks the Court to compel
administrative review of the excisions. The FBI opposes
plaintiff's motion because he has cited no controlling authority
for this request, and because the there is no merit to the
underlying action.
STATEMENT OF FACTS
Plaintiff Aron Kay commenced this action on May 21,
1992, seeking declaratory and injunctive relief in connection
with his FOIA request for a document relating to the
investigation of the assassination of President John F.
Kennedy.
1
Kay's initial request was made in a letter dated
February 15, 1992. Plaintiff's Ex. A, attached to the Affidavit
1
The parties agreed to extend the time in which the
defendant would have to answer or otherwise respond to the
complaint, to July 27, 1992. On July 10, 1992, the defendant
answered the complaint.
3
of Eugene Harley (Harley Affidavit) . By letter dated June 5,
1992, the FBI provided Kay with a copy of the document sought by
his FOIA request. This copy had been redacted in several places
to conceal the identity of a confidential source who had provided
information to the FBI under an express grant of confidentiality.
Declaration of Special Agent Michael D. Turner, at   8. Kay
appealed these deletions to the Assistant Attorney General,
Office of Information and Privacy, in a letter dated June 15,
1992. Plaintiff's Ex. D to Harley Affidavit.
The Office of Information and Privacy responded to Kay
that no further administrative action would be taken in view of
Kay's pending action for judicial review. Plaintiff's Ex. E to
Harley's Affidavit. Kay then submitted this motion for "judicial
supervision and other relief."
ARGUMENT
Point I
PLAINTIFF'S MOTION SHOULD BE
DENIED BECAUSE THERE IS NO
BASIS FOR THE RELIEF REQUESTED
The notice of motion announcing this motion does not
specify any rule or statute upon which this application is
predicated, as required by Local Civil Rule 3(d). This rule
states that "Upon any motion based upon rules or statutes the
notice of motion or order to show cause shall specify the rules
or statutes upon which the motion is predicated. If such
specification has not been made, the motion may be stricken from
the calendar." The plaintiff's· memorandum of law submitted in
4
support of his self-styled motion for "judicial supervision"
cites no controlling authority upon which such relief can be
granted. Indeed, there is no such basis for this motion.
Kay cites 5 u.s.c. § 552(a) (b)c
2
for the proposition
that the Court may order the agency to hear the administrative
appeal and retain jurisdiction while the administrative appeal is
pending. Plaintiff's Memorandum of Law at 2. That provision,
however, applies in situations where the government shows that
there are exceptional circumstances and that more time is needed
to respond to the request. In such a case, the court may retain
jurisdiction, contrary to the plaintiff's claim that the court
"shall" retain jurisdiction (see lJ 7 of Harley Affidavit) . Here,
the FBI has not sought additional time to respond to the appeal.
Rather, it has declined to rule on the administrative appeal
because of this pending action. See Plaintiff's Ex. E to Harley
Affidavit.
Moreover, because the FBI did not respond to the
initial request within the 10-day period, Kay is deemed to have
constructively exhausted any available administrative remedies.
see Spannaus v. U.S. Department of Justice, 824 F.2d 52, 58 (D.C.
cir. 1987) ("Once constructive exhaustion occurs, any available
administrative appeal--i.e., actual exhaustion--becomes
permissive in the sense in which the term is used here; the
requester may pursue it, but his failure to do so does not' bar a
2
This is apparently a typographical error. The intended
citation was probably§ 552(a)   ~ )   C ) , not   a )   ~ ) (C).
lawsuit."). Thus, as for any administrative appeal to challenge
the excisions, Kay is deemed to have exhausted this remedy
because the statutory time for the FBI to respond had passed
prior to his filing suit.
3
Kay also cites two cases in support of his argument
that this Court should compel the agency to rule on his
5
administrative appeal: Grove v. Central Intelligence Agency, 752
F. Supp. 28 (D. D.C. 1990) and Allen v. Federal Bureau of
Investigation, 551 F. Supp. 694 (D. D.C. 1982). Neither of these
cases supports Kay's argument. In Grove, the court held that if
an agency failed to respond to a FOIA request within the
statutory time, the plaintiff would be deemed to have exhausted
administrative remedies, but that if an agency did respond within
the statutory time-frame, that actual exhaustion would be
required by the plaintiff. Grove, 752 F. Supp. at 31.
Accordingly, the Grove court dismissed the action as to two
defendant agencies, the DEA and CIA, because they had properly
responded to the plaintiff's requests. The court then permitted
the plaintiff to administratively appeal the decisions of those
two agencies. Id. at 32.
In Allen, the plaintiff did not file suit until after
he had administratively appealed the FBI's decision. (Here, the
plaintiff filed suit prior to filing an administrative appeal.)
3
However, if Kay had dismissed this action when he received
the document, he could have pursued an administrative appeal, and
then sought judicial review of ·any adverse decision. See 5 U.S. C.
§ 552 (a) (6) (A) (ii).
6
Moreover, Allen dealt mainly with the issue of whether the
plaintiff was required to administratively appeal the agency's
decision on a fee waiver request. There, the court held that
there was no exhaustion requirement to contest the denial of a
fee waiver. Allen, 551 F. Supp. at 696. Thus, neither Grove nor
Allen supports Kay's argument that this Court should retain
jurisdiction over the present action while compelling the agency
to decide the administrative appeal regarding the excisions.
Accordingly, there is no controlling authority for this Court to
compel the agency to rule on Kay's administrative appeal while
this action is pending.
4
Point I·I
THE EXCISIONS IN THE DOCUMENT
ARE STATUTORILY EXEMPT FROM
DISCLOSURE; THEREFORE, SUMMARY
JUDGMENT SHOULD BE GRANTED TO
THE DEFENDANT
The standard for granting summary judgment under Fed.
R. Civ. P. 56 requires the moving party to show that there is no
genuine issue of material fact in dispute and that it is entitled
to judgment as a matter of law. Fed. R. civ. P. 56(c); Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In addition, a
party opposing a motion for summary judgment must set forth
specific facts demonstrating the existence of a genuine issue of
fact. Id. Here, the only issue for this Court is whether the
4
Furthermore, although Kay may now seek judicial review of
the deletions, that issue is not squarely before the Court, as
more fully explained in the next section. The plaintiff has not
amended or supplemented the complaint under Fed. R. Civ. P. 15,
nor has he requested the Court's permission to do so.
7
excisions made in the document are exempt from disclosure. On
this point, there is no genuine issue of material fact.
Kay's complaint demanded the release of a two-page FBI
teletype dated November 26, 1963. After this suit was filed, the
FBI provided a copy of this document to Kay, redacted to conceal
the identity of a confidential source. The copy of this document
contained notations indicating that the excisions had been made
pursuant to the exemption under 5 u.s.c. § 552(b) (7) (D)
(exempting the identities of confidential sources). Along with
the document, the FBI sent an explanation of the exemption. See
Plaintiff's Ex. B and C attached to the Harley Affidavit. Thus,
the plaintiff has already received the relief requested in his
complaint.
Moreover, even if the Court construed the complaint in
its present form to challenge the deletions or if the plaintiff
amended or supplemented the complaint under Fed. R. Civ. P. 15,
the FBI respectfully submits that it would still be entitled to
judgment in its favor because the disputed excisions are
statutorily exempted from disclosure. The relevant section
provides that the following are exempt:
(7) records or information compiled for law
enforcement purposes, but only to the extent
that the production of such law enforcement
records or information . (D) could
reasonably be expected to disclose the
identity of a confidential source, including
a State, local, or foreign agency or
authority or any private institution which
furnished information on a confidential
basis. ;
8
5 U.S. C. § (b) (7) (D). As stated in the Declaration of Michael D.
Turner, the excisions were all made to protect the identity of a
confidential source who provided information under an express
grant of confidentiality. Turner Declaration at   8.
The identity of a confidential source is not subject to
disclosure, nor is information'which can reasonably be expected
to disclose that source's identity. 5 U.S.C. § 552(b) (7) (D);
United Technologies Corp. v. NLRB, 777 F.2d 90, 93 (2d Cir.
1985). See also Schmerler v. FBI, 900 F.2d 333, 336-37 (D.C.
Cir. 1990) (even where no express grant of confidentiality given,
promises of confidentiality are "inherently implicit" when
information is solicited by the FBI; then plaintiff has burden to
show evidence to rebut the presumption of confidentiality).
The (7) (D) exemption protects the identities of
confidential sources despite the passage of time, and even
protects the identities of confidential sources who have died.
See Schmerler, 900 F.2d at 336. Indeed, the protection continues
unless and until the source is called as a witness. United
Technologies, 777 F.2d at 94. In view of the statements made in
the declaration of Special Agent Michael Turner, the FBI
respectfully submits that the excisions in the document requested
by the plaintiff were properly made. Thus, the FBI respectfully
submits that it is entitled to summary judgment.
,,
9
CONCLUSION
For the reasons stated above, the FBI respectfully
requests that this Court deny plaintiff's motion for "judicial
supervision and other relief" and grant the FBI's motion for
summary judgment.
Dated: Brooklyn, New York
october 'f'5 , 19 9 2
SARAH J. LUH
Assistant U.S. Attorney
(Of Counsel)
Respectfully submitted,
ANDREW J. MALONEY
United States Attorney
Eastern District of New York
One Pierrepont Plaza, 11th Fl.
Brooklyn, Ne•v York 11201
LAW OFFICES
LEVY, GUTMAN, GOLDBERG & KAPLAN
LEOPOLD LEVY 1913-1929
THEODORE OUTMAN 1913-1948
GEORGE GOLDBERG 1913- 1980
,JEREMIAH 5 . GUTMAN
PHILIP KAPLAN
EUGENE N . HARLEY
Mr. Aron Kay
December 10, 1992
424 Brighton Beach Avenue
Brooklyn, NY 11235
Re: FBI Case
Dear Aron:
275 SEVENTH AVENUE , SUITE 1770
NEWYORK, N.Y. 10001
TELEPHONE 212 / 807-9733
FAX <2121 807-9737
  .. OIFP"ICE.
2 RIVERV IEW PLACE
HASTING5-0N-HUDSON, N . Y . 10701!1
QI4 / 471!1-3!5!5Q
I heard on December 8 from Mr. Yu, law clerk to Judge
Korman. Judge Sessions has not yet returned the Judge's call
and the Judge put o.ff the telephone conference which had been
scheduled for December 9 to give him a chance to get hold of
Judge Sessions. I have been instructed to call Ms. Susi,
appointment clerk to Judge Korman, in two weeks to set up a
new telephone conference call among the u.s.
Attorney the case, the Judge and mysel and, perhaps,
Judge Sess1ons or another person from th FBI.
I will continue to keep you advis d of developments.
JSG: j f
S.. S:..:.tm::Yl,   ...
Levy, Gutman, Goldberg &·Kaplan
United States Attorney
Eastern District of New Thrk
I Fierrepont Plaza
11th Floor
Brooklyn, New iOrl: 11201
March 25, 1993
275 Sev-=nth -Avenue
1
Su-ite- l776-----
New York, NY 10001
Re: Kay v. FBI, 92 CV 2438
Dear Mr. Gutman:
Enclosed please find an unredacted copy of the
teletype as we agreed.
Encl.
By:
Very truly yours,
MARY JO WHITE
United States Attorney

SARAH J. LUM
Assistant U.S. Attorney
718-330-2757/7100
---
URGENT .11-26-63 8-11 PM VBR
TO SACS DALLAS AND NEW ORLEANS
FROM SAC, HOUSTON 62-2115 2?
.. . - ... .
-.. • . · .. ·
: .. ; :
; . . : ·.
ASSASSINATION OF PRESIDENT JOHN F. KENNEDY, NOVEMBER TWENTY .
TWO, SIXTYTHREE, DALLAS, TEXAS. ;I
RE ALVIN AND DAVID w.
AT FOUR FIFTEEN NOV. TWENTYSIX INSrANT CHIEF OF
POLICE WILLIE BURNS PAREN NA PAREN CLOSED
TEXAS, ADVISED- HE HAD RECEIVED CALL FROM CAPTAIN
- . .
CECIL PRIEST, HOUSTON PD,· ASKING HIM TO CHECK ON.ALVIN
BEAUBAOUEF AND DAVID w. FERRIE AT THE DRifTWOOD MOTOR HOTEL,
GALVESTON. PRIEST T.HEY. WERE FRIENDS OF OSWALD.
. - .
BURNS STATED HE HAD DETECTIVE CHECK AND DETERMINED
-
THAT ABOVE INDIVIDUALS REGISTERED IN ROOM ONE ONE SEVEN
DRIFTWOOD MOTOR HOTEL, THREE ONE TWO EIGHT BOULEVARD,
GALVESTON, ELD.TEN PM ON NOVEMBER TWENTYTHREE SIXTYTHREE, AND
CHECKED OUT AT TWO PM ON NOVEMBER TWENTYFOUR. GAVE AS
THEIR ADDRESS SIX ONE EIGHT NORTH PIERCE, NEW
LOUISIANA. WERE DRIVING FOUR DOOR STATION .MAKE · &
END PAGE ONE 'J -::_ __ t/_ 3-
0
Jf
.. :-.. . .
  ....... ..
NOV 2 6 1963
PAGE TI/0
'
UNKNOWN, LOUISIANA LICENSE SEVEN EIGHT FOUR DASH EIGHT NINE
FIVE.
ALSO IN THE ROOM THEM MELVIN s.
ALL
MALES. ALSO. IN_ THE R00l1 BLOND WIHITE FEMALE,
NAME  
lllHILE AT MOTEL ?LACED bONG--DISTANCE CALL TO
ALEXANDRIA, LOUIS IAN[), 'ITLEPHONE NUMBER UN)(NQWN.
HOUSTON DOES NOT KNOW SIGNIFICANCE OF ABOVE AND INQUIRY
. . . . .
AT HOUSTON PD WOULD COMPROMISE SOURCE DOES NOT
HOUSTON PD TO KNO'<I HIS CONTACT WITH FBI.
UAC DALLAS, NE1il ORLEANS ATTEMPT TO IDENTIFY ABOVE
I
INDIVIDUALS AND THEIR POSSIBLE CONNECTION WIITH LEE HARVEY
OSWALD.
END AND ACK
DL g-14 PM CST OK FBI DL LJH
NO ADV E SEP TU CLR
0