CHURCH OF SCIENTOLOGY OF BOSTON, Plaintiff,
                                       v.
                      INTERNAL REVENUE SERVICE, Defendant.
                             Civ. A. No. 90-11069-N.
                          United States District Court,
                                D. Massachusetts.
                                 Nov. 16, 1990.
  Church being investigated by Internal Revenue Service (IRS) sought discovery
 from IRS.  IRS moved for protective order and/or to quash deposition of IRS
 official.  The District Court, Marianne B. Bowler, United States Magistrate
 Judge, held that:  (1) IRS failed to show that documents were compiled for
 "legitimate law enforcement purposes," and (2) church could not depose IRS
 official.
  Motion allowed in part, and denied in part.

 [1] WITNESSES
 Court that issues subpoena has inherent power to vacate it.

 [2] FEDERAL CIVIL PROCEDURE
 Party seeking protective order has burden of showing existence of good cause
 for issuance of protective order.  Fed.Rules Civ.Proc.Rule 26(c), 28
 U.S.C.A.

 [3] FEDERAL CIVIL PROCEDURE
 Where governmental agency seeks exemption from discovery on grounds that
 documents were compiled for "legitimate law enforcement purposes," court
 considers whether requested information was demonstrated to have been compiled
 for law enforcement purposes, and whether agency showed that release of
 material will result in one of harms specified in statute.  5 U.S.C.A. s
 552(b)(7).

 [4] FEDERAL CIVIL PROCEDURE
 Internal Revenue Service (IRS) failed to show it had legitimate purpose for tax
 inquiry directed at church, and thus, documents were not protected from
 discovery by "law enforcement purposes" exemption, and church was entitled to
 uncover certain facts related to legitimacy of investigation.  5 U.S.C.A. s
 552(b)(7).

 [5] FEDERAL CIVIL PROCEDURE
 Although in general, heads of agencies and other top government executives are
 normally not subject to depositions, exception to this general rule exists
 concerning top officials who have direct personal factual information
 pertaining to material issues in action;  top government official may, however,
 only be deposed upon showing that information to be gained from such deposition
 is not available through any other source.

 [6] FEDERAL CIVIL PROCEDURE
 Although church was entitled to discovery from Internal Revenue Service (IRS)
 with regard to legitimacy of tax investigation aimed at it, church could not
 depose senior IRS official;  church made no showing that requested information
 was unavailable through any other source.
  *9 Earle C. Cooley Cooley, Manion, Moore & Jones, Boston, Mass., Laurie
 Bartilson Bowles & Moxon, Hollywood, Cal., for plaintiff.
  Michael J. Martinean U.S. Dept. of Justice, Tax Div., Harry J. Giacometti U.S.
 Dept. of Justice, Washington, D.C., George Bunsen Henderson U.S. Atty's. Office
 Boston, Mass., for defendant.
   ORDER RE:  MOTION FOR PROTECTIVE ORDER AND/OR TO QUASH DEPOSITION SUBPOENA
                               (DOCKET ENTRY # 16)

  MARIANNE B. BOWLER, United States Magistrate Judge.
  Defendant filed a Motion for Protective Order and/or to Quash Deposition
 Subpoena on July 24, 1990.  (Docket Entry # 16).  This court held a hearing
 pursuant to defendant's motion on October 1, 1990.  Defendant requests this
 court to enter a protective order and/or an order quashing the deposition
 subpoena of Marcus S. Owens *10 ("Mr. Owens"), the Director of Exempt
 Organizations Technical Division, National Office, Internal Revenue Service
 ("I.R.S.").  The defendant asserts the following grounds in support of its
 motion:  (1) Mr. Owens has no relevant or admissible information;  (2) the
 discovery sought exceeds the bounds permissible in a Freedom of Information
 Act ("FOIA") case;  and (3) the discovery is burdensome and oppressive to the
 defendant.  (Docket Entry # 16, p. 1).
  The plaintiff, on the contrary, asserts that Mr. Owens does possess relevant
 information and that the proposed discovery does not exceed the bounds of that
 permitted under the FOIA.  (Docket Entry # 17).
                                   BACKGROUND
  Plaintiff filed this action on April 27, 1990, to obtain the release of
 records allegedly withheld pursuant to a request under the FOIA made by the
 plaintiff to the Boston District of the I.R.S. on October 2, 1989 for records
 relating to the plaintiff.  (Docket Entry # 17, p. 3 and # 1).  A conference
 was held by Judge Nelson on July 16, 1990, at which time the court ordered the
 defendant to produce a Vaughn index describing the documents withheld by the
 I.R.S.  The court also ordered a stay of discovery pending the submission of
 the Vaughn index with the exception of the deposition in question and a
 Rule 30(b)(6) deposition of the defendant.  (Docket Entry # 17, p. 6).
 Counsel for the defendant then refused to allow the deposition of Mr. Owens to
 proceed and pursued the motion in question.
                                   DISCUSSION
  [1] It is clear that a court that issues a subpoena has the inherent power
 to vacate it.  United States v. International Business Machines Corp., 406
 F.Supp. 175 (S.D.N.Y.1975).  "The basis for excusal from the duty to appear and
 give oral testimony is severely restricted, however, and decisions quashing
 subpoenas ad testificandum are accordingly rare."  5A J. Moore & J. Lucas,
 Moore's Federal Practice P 45.05[3] (1990);  see Horizons Titanium Corp. v.
 Norton Co., 290 F.2d 421 (1st Cir.1961) (until witness appears there is no
 guide to his testimony).
  [2] Defendant's request for a protective order is governed by
 Fed.R.Civ.P. 26(c) which provides in pertinent part:
   Upon motion by a party ... and for good cause shown, the court ... may make
 any order which justice requires to protect a party ... from annoyance,
 embarrassment, oppression, or undue burden or expense, including (1) that the
 discovery not be had;  (2) that the discovery may be had only on specified
 terms and conditions ... (4) that certain matters not be inquired into.
  Id.  The party seeking a protective order has the burden of showing the
 existence of good cause for the issuance of a protective order.  See Public
 Citizen v. Liggett Group, Inc., 858 F.2d 775, 778 (1st Cir.1988), cert.
 denied, 488 U.S. 1030, 109 S.Ct. 838, 102 L.Ed.2d 970 (1989).
  This court now turns to a consideration of the particular grounds
 asserted by the defendant in support of its motion.
  A. Relevance
  "Relevancy is to be broadly construed at the discovery stage of litigation and
 a request for discovery should be considered relevant if there is any
 possibility that the information sought may be relevant to the subject matter
 of the action."  Gagne v. Reddy, 104 F.R.D. 454, 456 (D.Mass.1984) (quoting
 Miller v. Doctor's General Hospital, 76 F.R.D. 136, 138 (W.D.Okla.1977)).
 Mr. Owens alleges that he has no personal knowledge of the FOIA request or
 appeal submitted by the plaintiff.  He further alleges that he has no personal
 knowledge of the documents provided to or withheld from the plaintiff in
 response to the above mentioned request and appeal and that he has no personal
 knowledge of the FOIA exemptions asserted by the I.R.S. in withholding the
 documents.  (Declaration of Marcus Owens, Docket Entry # 16).  Mr. Owens was,
 however, apparently involved in critical events concerning the validity of the
 FOIA exemptions claimed by the I.R.S.  Mr. Owens ordered that a conference be
 held in October of 1988 which subsequently *11 resulted in the "examination"
 of the plaintiff and the issuance of a summons by the I.R.S. and ensuing
 litigation to enforce the summons.  United States v. Church of Scientology
 of Boston, 739 F.Supp. 46 (D.Mass.1990).  It appears from this information that
 Mr. Owens likely possesses information regarding the scope of the documents
 requested by the plaintiff.  Such information is relevant for the purposes of
 discovery.
  B. Permissibility of discovery of the Information Sought Pursuant to the FOIA
  Plaintiff seeks the testimony of Mr. Owens to obtain evidence regarding "the
 scope of records at issue and his knowledge of the factual basis for
 defendant's claims for exemption of the records at issue in this case."
 (Docket Entry # 9, P 3).  Plaintiff claims, in support of the deposition, that
 discovery under the FOIA is available to determine "whether withheld documents
 are exempt from disclosure."  (Docket Entry # 18, p. 9).  Discovery, however,
 is often limited to a determination of whether complete disclosure has been
 made, for example, whether a thorough search for the documents has occurred.
 Founding Church of Scientology of Washington, D.C., Inc. v. National
 Security Agency, 610 F.2d 824, 832-34 (D.C.Cir.1979);  Exxon Corp. v.
 Federal Trade Comm'n, 466 F.Supp. 1088, 1092-96 (D.C.D.C.1978).
  [3] In the present action, the IRS is claiming that the documents in
 question are exempt because they were compiled for "legitimate law enforcement
 purposes." [FN1]  Judicial consideration of exemption seven requires a two-part
 inquiry:  (1) the requested information must be demonstrated to have been
 compiled for law enforcement purposes;  (2) the agency must show that release
 of the material will result in one of the harms specified in the statute.
 Federal Bureau of Investigation v. Abramson, 456 U.S. 615, 622, 102 S.Ct.
 2054, 2059-60, 72 L.Ed.2d 376 (1982).  Initially, in asserting the "exemption
 7" justification for nondisclosure, the IRS bears the burden of passing this
 threshold test as to whether the information was actually compiled for a
 legitimate law enforcement purpose.  Id.;  see Pratt v. Webster, 673 F.2d
 408, 421 (D.C.Cir.1982) (discussing application of exemption 7);  Freeman v.
 Department of Justice, 723 F.Supp. 1115, 1122 (D.Md.1988) (applying exemption
 7);  Arenberg v. Drug Enforcement Administration, 849 F.2d 579, 580-81 (11th
 Cir.1988) (discussing justifications for exemption);  Dunaway v. Webster,
 519 F.Supp. 1059, 1075-82 (N.D.Cal.1981) (reviewing exemption 7);  see
 generally Weisberg v. Department of Justice, 627 F.2d 365
 (D.C.Cir.1980) (discussing thoroughness of search to demonstrate documents
 properly exempted);  Schaffer v. Kissinger, 505 F.2d 389
 (D.C.Cir.1974) (burden on government agency to demonstrate documents properly
 exempted).  Contra King v. Department of Justice, 830 F.2d 210, 231
 (D.C.Cir.1987) (if agency claims law enforcement exception, seeking party has
 burden to prove investigation was mere pretext).

      FN1. 5 U.S.C. s 552(b)(7) ("exemption 7") creates the following
     exemption:
     investigatory records compiled for law enforcement purposes, but only to
     the extent that the production of such records would (A) interfere with
     enforcement proceedings, (B) deprive a person of a right to a fair trial or
     an impartial adjudication, (C) constitute an unwarranted invasion of
     personal privacy, (D) disclose the identity of a confidential source and,
     in the case of a record 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, confidential information
     furnished only by the confidential source, (E) disclose investigative
     techniques and procedures, or (F) endanger the life or physical safety of
     law enforcement personnel
     Id.

  [4] Based on the majority of the relevant precedent cited above and
 the facts of the present case, this court does not find that the IRS has met
 that threshold test in the case at hand.  Moreover, Judge Tauro, in the
 underlying action by the IRS, found that "the IRS has failed to show a
 legitimate purpose for its tax inquiry."  See Order and Memorandum of U.S.
 District Court Judge Tauro, United States v. Church of Scientology of
 Boston, Inc., 739 *12 F.Supp. 46, 50 (D.Mass.1990) (Docket Entry # 17,
 Exhibit B) (denying government's petition to enforce IRS summons).
 Accordingly, the Church of Scientology has a right of discovery in this
 matter.  The plaintiff is, therefore, entitled to uncover certain facts related
 to the legitimacy of the investigation, as the investigation resulted in the
 compilation of the potentially exempt documents.
  A split of authority exists, however, concerning the permissible scope of a
 party's discovery pursuant to the FOIA. [FN2]  United States v. Morgan, 313
 U.S. 409, 422, 61 S.Ct. 999, 1004-05, 85 L.Ed. 1429 (1941);  Weisberg v.
 Department of Justice, 627 F.2d 365 (D.C.Cir.1980);  Schaffer v. Kissinger,
 505 F.2d 389 (D.C.Cir.1974);  Exxon Corp. v. Federal Trade Comm'n, 384
 F.Supp. 755 (D.C.D.C.1974).  Contra Church of Scientology, Int'l v. Internal
 Revenue Service, No. CV 89-4504-CBM (Tx) (U.S.D.C.C.D.Cal.), F.S. No. 90-
 481 (D.C.D.C.1990) (Docket Entry # 18, Exhibit A;  B) (denying request that the
 court prohibit inquiry "into the agency's thought process in deciding whether
 to assert a particular exemption").

      FN2. It is not necessary for this court to assert a further position with
     respect to the scope of permissible discovery pursuant to the FOIA in light
     of the discussion below.

  C. Owen's Position in the I.R.S. as a Bar to his Deposition
  Mr. Owens is the Director of Exempt Organizations Technical Division, National
 Office of the I.R.S.  Mr. Owens occupies a Senior Executive, Level 4 position
 and is responsible for the management of the Exempt Organizations Technical
 Division.  (Docket Entry # 16, p. 4).
  [5][6] In general, heads of agencies and other top government executives are
 normally not subject to depositions.  See Simplex Time Recorder Co. v.
 Secretary of Labor, 766 F.2d 575, 586-87 (D.C.Cir.1985) (oral deposition of
 officials not countenanced);  Peoples v. United States Department of
 Agriculture, 427 F.2d 561, 567 (D.C.Cir.1970) (supplemental opinion) (court has
 discretion to assure that discovery will not unduly burden government
 officials);  Kyle Engineering Co. v. Kleppe, 600 F.2d 226, 231 (9th
 Cir.1979) (heads of government agencies not generally subject to deposition).
 The rationale pursuant to this policy is that such officials must be free to
 conduct their jobs without the constant interference of the discovery
 process.  United States v. Miracle Recreation Equipment Co., 118 F.R.D. 100,
 104 (S.D.Iowa 1987);  see Community Federal Savings and Loan Ass'n v.
 Federal Home Loan Bank Board, 96 F.R.D. 619, 621 (D.C.D.C.1983) (deposition of
 agency official permitted only when official has relevant first-hand knowledge
 of matters not available from another source);  Capitol Vending Co. v.
 Baker, 36 F.R.D. 45, 46 (D.C.D.C.1964) (oppressive to require government
 official to submit to interrogation that would disturb government business).
  An exception to this general rule exists concerning top officials who
 have direct personal factual information pertaining to material issues in an
 action.  American Broadcasting Companies, Inc. v. United States Information
 Agency, 599 F.Supp. 765, 769 (D.C.D.C.1984).
  A top government official may, however, only be deposed upon a showing that
 the information to be gained from such a deposition is not available through
 any other source.  Community Federal Savings and Loan Ass'n v. Federal Home
 Loan Bank Board, 96 F.R.D. 619, 621 (D.C.D.C.1983);  American Broadcasting
 Companies, Inc. v. United States Information Agency, 599 F.Supp. 765, 769
 (D.C.D.C.1984);  Union Savings Bank v. Saxon, 209 F.Supp. 319
 (D.C.D.C.1962) (deposition may be permitted where action personal to
 deponent);  United States v. Miracle Recreation Equipment Co., 118 F.R.D.
 100, 105 (S.D.Iowa 1987) (evidence sought must not be available through some
 other less burdensome source).  In the case at hand, plaintiff makes broad
 statements that Mr. Owens is "an indispensable witness."  Other than these
 general assertions, plaintiff makes no showing that such information is
 otherwise unavailable.  Plaintiff, therefore, *13 has not satisfactorily
 demonstrated that the information sought cannot be gained through an
 alternative source.
                                   CONCLUSION
  In light of plaintiff's failure to meet its burden of proving that Mr. Owens,
 a high official in a government agency, is the sole source of the requested
 information, Defendant's Motion for Protective Order and/or to Quash Deposition
 Subpoena is ALLOWED.  Plaintiff's request for reasonable fees and costs
 pursuant to Fed.R.Civ.P. 37(a)(4) is accordingly DENIED.