The opinion of the court was delivered by: BRYANT
This action is brought under the Freedom of Information Act, 5 U.S.C. § 552. Plaintiff Exxon Corporation (hereinafter "Exxon") seeks the production of certain documents in the possession of defendant Federal Trade Commission (hereinafter "Commission"). Jurisdiction is conferred by 5 U.S.C. § 552(a) (3). This court has heard argument on and taken under advisement defendants' motion to dismiss or in the alternative for summary judgment and motions of the plaintiffs relating to discovery from defendant Tobin, Secretary of the Commission.
This is one of the first attempts by a government agency to follow the guidelines set forth in Vaughn and Cuneo.1 The court has given it close scrutiny in the light of these guidelines and, for reasons set forth below, concludes that the Commission's efforts pass muster.
On July 9, 1973, counsel for Exxon requested a copy of the Commission's staff report on the petroleum industry (hereinafter "Report"). Subsequently Exxon's counsel requested
"the opportunity to inspect and copy all communications (including letters, reports or memoranda, and notes, transcripts or other memorialization of oral communications) between January 1, 1970 and August 8, 1973, occurring between the Federal Trade Commission (including any member or employee) and any member of Congress (or employee of the Congress or any member) on the subject of petroleum in liquid or gaseous form,"
and similar communications between the Commission and "any other government agency regarding shortages, allocations, imbalances, availabilities and noncompetitive activities involving petroleum." In essence, Exxon identified a single document and made a blanket request for all other petroleum-related Congressional correspondence and inter-agency documents.
The Commission, through Mr. Tobin, granted Exxon access to Congressional communications, deleting only references that might identify informants, but denied access to the Report and to communications with other agencies, citing exemptions 5 U.S.C. § 552(b) (3) (exempted by statute), 5 U.S.C. § 552(b) (5) (inter-agency memoranda), and 5 U.S.C. § 552(b) (7) (investigatory files). On October 16, 1973, Exxon filed suit to compel disclosure under the Freedom of Information Act.
Shortly after filing suit, Exxon moved for a pretrial order and then for partial summary judgment in an effort to obtain from the Commission a Vaughn index, itemizing and cross-referencing the exemptions claimed by the Commission. On December 17, 1973, defendant filed a motion to dismiss or in the alternative for summary judgment. As part of its motion it filed an index of documents withheld, listed under each claimed exemption. In addition, the Commission filed an affidavit of Mr. Tobin attesting to the completeness of the search for documents.
On December 21, 1973, Exxon noticed a deposition of Mr. Tobin. On motion of the Commission, the court quashed the deposition, ordering interrogatories to be used in place of the deposition. Exxon then filed a set of over 200 interrogatories directed to Mr. Tobin, which were answered in part and objected to in part. The court now has before it motions to reinstate the Tobin deposition and to impose sanctions for incomplete answers to interrogatories. The court also has before it defendants' motion to dismiss or, in the alternative, for summary judgment, as well as plaintiff's opposition expressed largely as challenges to the adequacy of the index under the Vaughn guidelines and to the appropriateness of summary judgment in view of the limitations on its discovery. At the hearing on these motions extensive arguments were advanced. On February 26, 1974, supplemented on March 7, 1974, the Commission submitted the withheld documents to the court for in camera inspection. Since the court is relying in part on this in camera inspection, defendants' motion will be treated as one for summary judgment.
Ripeness for Summary Judgment
Exxon argues that this case is not ripe for summary judgment for two reasons. First, there are disputed issues of material fact that require further discovery. In this regard, Exxon has filed the above-mentioned discovery motions. Second, Exxon argues that the indices prepared by the Commission are inadequate under the Vaughn standard for a motion for summary judgment.
Exxon's first reason relates to its attempts at further discovery. Exxon seeks this discovery in order to rebut two affidavits of Mr. Tobin. In his first affidavit, filed as part of the Commission's motion to dismiss or in the alternative for summary judgment, Tobin states that he is Secretary of the Commission and legal custodian of the records. He continues by attesting that:
3. Subsequent to the filing of the complaint in this case, I caused a search to be made of the Commission's files in order to locate all the communications described in Paragraph 1 on page 7 of the complaint.
4. In a determined effort to locate all the requested documents as expeditiously as possible, members of my staff actively sought to assist the office of each Commission unit to conduct a thorough search through a series of telephone calls, visits and meetings with the various staff members engaged in conducting the search.
5. To the best of my knowledge and belief, the documents described in the index attached hereto and made a part hereof are all of the documents that have been located to date as a result of this search.
Tobin's second affidavit, filed with the Commission's supplementary indices, reaffirms the substance of the first affidavit, and adds that ". . . I am satisfied that all units in the Commission likely to have any of the documents requested have been directed to submit the relevant documents and I am satisfied that they have done so."
Exxon noticed Mr. Tobin's deposition. After this court directed that discovery from Mr. Tobin be made by interrogatory, Exxon sent Mr. Tobin over 200 interrogatories filling 46 pages. Tobin, assisted by counsel for ...