only after the State Department filed its affidavits and represented that the withheld reports constituted classified documents.
Similarly, in Weisberg v. Department of Justice, 177 U.S. App. D.C. 161, 543 F.2d 308 (1976), the plaintiff sought investigatory data relating to the assassination of President Kennedy. After the government furnished data to the plaintiff, it claimed the case was moot. It alleged it had turned over all information relevant to the plaintiff's FOIA request. The district court agreed and dismissed the case on mootness grounds. This Circuit Court of Appeals, however, found that factual questions remained over whether the FBI did, in fact, hand over all data requested in the FOIA petition. It therefore held the plaintiff entitled to use depositions to determine the existence or non-existence of the requested material. The factual dispute in Weisberg thus arose after the government responded to the plaintiff's FOIA request. The government's release of the data, along with its affidavits claiming complete compliance with the FOIA request, created the factual dispute that necessitated discovery.
Finally, in Exxon Corp. v. FTC, 384 F. Supp. 755 (D.D.C.1974), Exxon sought the production of documents in the possession of the agency. Exxon questioned statements in the Secretary of the Commission's affidavit that alleged a complete search had been made. The district court allowed discovery, through interrogatories, to test the veracity of these statements. The interrogatories further inquired into the adequacy and completeness of the document search. Id. at 758-59. Like the Schaffer and Weisberg cases, the factual issue in Exxon arose only after the government agency submitted its responsive papers.
These cases uniformly establish that discovery may proceed in a FOIA controversy when a factual issue arises concerning the adequacy or completeness of the government search and index. But they further establish a self-evident principle: a factual issue that is properly the subject of discovery can arise only after the government files its affidavits and supporting memorandum of law.
In the instant case, the government has yet to file its affidavits. The plaintiff therefore cannot possess the prescience to predict whether a factual issue will emerge. This court likewise cannot prejudge the government's response; to deny the government's motion for a protective order would require an expectation that the government answer will raise factual issues. This we cannot do.
PROCEDURES AFTER GOVERNMENT RESPONSE
Once the government files its answer, the plaintiff may again seek discovery if, in good faith, he finds that it creates issues of fact. As with all other matters in this case, the court will rule as expeditiously as possible.
Assuming, arguendo, that the plaintiff requests lifting the protective order, the standards for adjudicating the discovery request are clear. If the government affidavits satisfy the court that the search was adequate and complete, then the court may deny discovery. Goland v. CIA, 197 U.S. App. D.C. 25, 607 F.2d 339, 352 (1978). In Goland, the affidavit on its face indicated that the defendant agency effectuated a complete search. "For this reason, the district court's grant of a summary judgment without discovery was within its discretion." Id. at 355. If, however, the record demonstrates a factual dispute as to the adequacy of search or completeness of the index, discovery may ensue. Association of National Advertisers v. FTC, CCH 1976-1 Trade Cas. P 60835 (D.D.C.1976) at 68,644.
Case law establishes that discovery is appropriate in FOIA cases to resolve factual disputes. A factual issue, however, cannot arise until after the government files its response. The court therefore grants the defendants' motion for a protective order. The order is to remain in effect until further notice. Should the affidavits filed by the defendants create a factual issue that is properly the subject of discovery, the court would then look favorably upon a motion to lift the order
and to proceed with discovery through deposition.
Until such time, the plaintiff's attempt to depose can only be viewed as premature.
Therefore, in accordance with the foregoing, it is, by the court, this 25th day of March, 1980,
ORDERED that the defendants' motion for a protective order be, and the same hereby is, granted.