CHURCH OF SCIENTOLOGY OF SAN FRANCISCO; Church of Scientology of
California et al., Plaintiffs-Appellants,
INTERNAL REVENUE SERVICE, Defendant-Appellee.
CHURCH OF SCIENTOLOGY OF SAN FRANCISCO, Plaintiff-Appellant,
INTERNAL REVENUE SERVICE, Defendant-Appellee.
Nos. 91-15730, 91-15734.
United States Court of Appeals,
Argued and Submitted Nov. 5, 1992.
Decided April 16, 1993.
Plaintiffs brought suit under the Freedom of Information Act (FOIA) to gain
access to records of IRS. On appeal from decision of United States District
Court for the Northern District of California, Charles A. Legge, J., granting
IRS' motion for summary judgment. The Court of Appeals, Beezer, Circuit Judge,
held that summary judgment should not have been entered in favor of IRS until
plaintiffs had reasonable opportunity to conduct discovery relevant to
applicability of FOIA exemptions and to accuracy and completeness of IRS
Reversed and remanded.
*560 Kendrick L. Moxon, Bowles & Moxon, Los Angeles, CA, for plaintiffs-
Shirley D. Peterson, Asst. Atty. Gen., Washington, DC, for defendant-appellee.
Appeal from the United States District Court for the Northern District of
Before: BEEZER, KOZINSKI, and KLEINFELD, Circuit Judges.
*561 BEEZER, Circuit Judge:
We consider a plaintiff's right to conduct discovery prior to summary
judgment in an action brought against the government under the Freedom of
Information Act, 5 U.S.C. s 552 (1982) ("FOIA").
In two consolidated appeals, member Churches of Scientology challenge the
district court's grant of summary judgment in favor of the Internal Revenue
Service ("IRS"). We must determine whether the district court erred in denying
the Churches the opportunity to conduct discovery regarding the adequacy of the
IRS's response to the Churches' FOIA requests. We reverse and remand the
judgments of the district court.
A. Appeal No. 91-15730
In virtually identical letters, the Church of Scientology of San Francisco,
the Church of Scientology of Orange County and the Church of Scientology of
California ("Churches") requested, pursuant to FOIA, access to records of the
IRS relating to the designation or inclusion of each of the Churches or their
parishioners in a so-called "tax shelter litigation project." Each letter
asked the IRS to conduct a thorough search of all record and file systems that
may contain responsive information, including project files, tax shelter branch
files, Regional Shelter Coordination Files, as well as various data bases.
The IRS denied the requests on the grounds that all of the documents were
exempt from disclosure under FOIA "Exemption 3," 5 U.S.C. s 552(b)(3), in
conjunction with Section 6103 of the Internal Revenue Code, 26 U.S.C. s
6103 (1986), and FOIA "Exemption 5," 5 U.S.C. s 552(b)(5). [FN1]
FN1. 5 U.S.C. s 552(b)(3) exempts matters
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.
5 U.S.C. s 552(b)(5) exempts "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."
The Churches subsequently filed administrative appeals to which the IRS did
not respond. The Churches then filed suit in district court to compel
disclosure. In its answer, the IRS again claimed the documents at issue were
exempt from disclosure.
In response to the Churches' attempt to take depositions of IRS officials, the
IRS filed a motion for a protective order to preclude all discovery prior to
its motion for summary judgment. The district court granted the IRS's motion
for a protective order, agreeing with the IRS that discovery was, at this
point, "very premature" and that the dispute was a "case management," not a
The court then ordered the IRS to produce a "Vaughn Index," [FN2] of the
withheld documents and informed the Churches that the court would consider
permitting discovery only after the IRS had filed its summary judgment motion
if the Churches then came forward and identified factually disputed issues.
FN2. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973), cert. denied,
415 U.S. 977, 94 S.Ct. 1564, 39 L.Ed.2d 873 (1974).
The IRS subsequently filed a Vaughn Index and asserted that only 12 pages
of records were responsive to the FOIA request. Shortly thereafter, the IRS
filed its motion for summary judgment. In support of its motion, the IRS
submitted a memorandum and declarations of IRS employees regarding the nature
and adequacy of the search. The Churches opposed the motion, and moved for a
continuance pursuant to Federal Rule of Civil Procedure 56(f) and leave to
In a hearing on the motion, the district court expressed dissatisfaction
with the declarations regarding the scope of the agency's search for records
and gave the IRS 30 days to "beef up" its declarations. The IRS subsequently
filed a single supplemental declaration.
*562 The Churches filed a supplemental opposition to the motion for summary
judgment, contending that without discovery they could not "fully and
reasonably oppose" the motion for summary judgment and that the declarations
concerning the searches were defective and insufficient. The court took the
matter under submission, eventually ruling that the "declarations meet the
standards required of the IRS by section 552(a)(3)(A), Truitt, and
FN3. Truitt v. Dept. of State, 897 F.2d 540, 542 (D.C.Cir.1990) and
Miller v. United States Dept. of State, 779 F.2d 1378, 1383 (8th
Cir.1985) both hold that the adequacy of a search under the Freedom of
Information Act is judged by a standard of reasonableness.
B. Appeal No. 91-15734
In a separate case, the Church of Scientology of San Francisco requested
access to IRS records maintained in the IRS Fresno Service Center concerning
the Church and which related to the establishment and inclusion of the Church
and its members in an "illegal tax protestor program."
Repeating the pattern described in the first appeal, the IRS claimed exemption
from FOIA and ignored the Church's administrative appeal. The Church's attempt
to depose the IRS was again challenged by an IRS motion for a protective order
requesting the court to stay discovery until the IRS had prepared and filed its
motion for summary judgment. As in the first appeal, the Church opposed the
motion, arguing that discovery was necessary in order to permit the Church
competently to oppose any future summary judgment order by the IRS. The
district court granted the motion staying discovery.
The IRS subsequently moved for summary judgment, submitting declarations by
IRS employees in support of the motion. Arguing that it was impossible for the
Church to make a determination as to the completeness of the search, the Church
opposed the motion and requested reasonable discovery under Rule 56(f). On
the same day it decided case No. 91-15730, and for the same reasons, the
district court granted summary judgment in favor of the IRS.
 A denial of a Rule 56(f) application is reviewed under the
abuse of discretion standard. VISA Int'l Serv. v. Bankcard Holders of Am.,
784 F.2d 1472, 1475 (9th Cir.1986). The adequacy of a search under the Freedom
of Information Act is judged by a standard of reasonableness. Zemansky v.
United States EPA, 767 F.2d 569, 571 (9th Cir.1985). We review a district
court's grant of summary judgment de novo. T.W. Elec. Serv., Inc. v.
Pacific Elec. Contractors Ass'n., 809 F.2d 626, 629 (9th Cir.1987).
Rule 56(f) of the Federal Rules of Civil Procedure gives the trial court
discretion to allow discovery prior to the grant of summary judgment where "it
appear[s] from the affidavits of a party opposing the motion that the party
cannot for reasons stated present by affidavit facts essential to justify the
 In general, a denial of a Rule 56(f) application is disfavored
where the party opposing summary judgment makes a timely application which
specifically identifies relevant information, and where there is some basis for
believing that the information sought actually exists. Visa, 784 F.2d at
1475. On the other hand, courts have denied a Rule 56(f) application where
the evidence sought "was almost certainly nonexistent or was the object of pure
speculation." Id. (citations omitted). We have not previously addressed
whether it is an abuse of discretion to deny any discovery prior to hearing a
motion for summary judgment in a FOIA case.
On its face, Rule 56(f) leaves the decision to grant discovery wholly
within the discretion of the district judge. [FN4] In determining whether the
district court abused its discretion in the cases before us, we must first
*563 consider the peculiar disadvantages facing a FOIA plaintiff.
FN4. See Fed.R.Civ.P. 56(f) ("[T]he court may refuse the application
for judgment or may order a continuance to permit affidavits to be obtained
or depositions to be taken or discovery to be had or may make such other
order as is just.") (emphasis added).
 In a FOIA case, the government agency has control of the information.
This creates a situation where "the court is deprived of the benefit of
informed advocacy to draw its attention to the weaknesses in the withholding
agency's arguments." Weiner v. FBI, 943 F.2d 972, 977 (9th Cir.1991), cert.
denied, 505 U.S. 1212, 112 S.Ct. 3013, 120 L.Ed.2d 886 (1992). It is
"unreasonable to expect a trial judge to do as thorough a job of illumination
and characterization as would a party interested in the case." Id.
(quotation omitted); see also Washington Post Co. v. U.S. DHHS, 865 F.2d
320, 325 (D.C.Cir.1989) ("The integrity of a court's de novo [FOIA] judgment
rests upon an adversarial system of testing for truth when critical
adjudicative facts are subjects of a contest.") (quotation omitted).
The IRS cites cases from the Fourth and District of Columbia Circuits for the
proposition that courts "normally" do not allow discovery in a FOIA case prior
to the government's motion for summary judgment. See Simmons v. United
States Dept. of Justice, 796 F.2d 709 (4th Cir.1986); Goland v. CIA, 607
F.2d 339 (D.C.Cir.1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63
L.Ed.2d 759 (1980).
 Unlike Simmons and Goland, the case before us does not threaten
the disclosure of sensitive government information. See Miller v. United
States Dept. of State, 779 F.2d 1378, 1383 (8th Cir.1985) (noting the special
considerations that come into play in a FOIA case that involves issues of
national security). Moreover, the D.C. Circuit itself has, since Goland,
recognized the need of a party to use discovery to establish whether an
adequate FOIA search has taken place. See Weisberg v. Webster, 749 F.2d
864, 868 (D.C.Cir.1984) ("[t]he government should be able to use the discovery
rules in FOIA suits like any other litigant, to uncover facts which will enable
it to meet its burden of proving ... the adequacy of its search.") (emphasis
We make no broad statement today regarding the general discretion of a
district court to grant or deny a Rule 56(f) motion; the special
disadvantages facing this FOIA plaintiff make for a special case. Considering
the questionable sufficiency of the Vaughn index, the apparent evasiveness
of the IRS responses, the slim showing of a need for as extensive a cloak of
secrecy as the Government claimed, and the absence of any opportunity for the
Churches to conduct discovery on the adequacy of the Vaughn index and
completeness and truthfulness of the Government declarations, it was an abuse
of discretion entirely to bar discovery by the plaintiffs prior to the granting
of summary judgment against them. On remand, the district court is directed to
provide the plaintiffs in both appeals reasonable opportunity to conduct
discovery relevant to applicability of the FOIA exemptions or accuracy and
completeness of the Vaughn index and declarations.
The judgments of the district court are REVERSED and REMANDED.