United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 1999 Decided March 12, 1999
No. 97-5199
Eduardo J. Frugone,
Appellant
v.
Central Intelligence Agency,
Appellee
Appeal from the United States District
Court for the District of Columbia
(No. 96cv01248)
Bernard Fensterwald, III, argued the cause and filed the
brief for appellant.
Elizabeth Ross Withnell, Attorney-Advisor, U.S. Depart-
ment of Justice, argued the cause for appellee. With her on
the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig
Lawrence, Assistant U.S. Attorney.
Before: Ginsburg, Henderson and Tatel, Circuit Judges.
Opinion for the Court filed by Circuit Judge Ginsburg.
Ginsburg, Circuit Judge: Eduardo Frugone, who claims to
have been employed by the Central Intelligence Agency,
asked that agency to provide him with documents related to
his employment. The CIA denied his request, refusing either
to confirm or to deny that it had any information about him.
Frugone then sued the CIA under the Freedom of Informa-
tion Act, 5 U.S.C. s 552, to force it to disclose the information
he sought. The district court granted summary judgment for
the agency on the ground that its response was justified
under Exemptions 1 and 3 to the FOIA, 5 U.S.C. ss 552(b)(1)
and (b)(3). Frugone now appeals, contending that the Gov-
ernment waived its right to withhold the relevant documents
when the Office of Personnel Management sent him a series
of letters that, he alleges, confirmed his status as a former
employee of the CIA. We affirm the judgment of the district
court.
I. Background
Frugone, a resident of Chile, says he worked for the CIA
for 15 years as a "covert employee." In an effort to secure
retirement benefits from the Government, he contacted the
OPM in 1990. OPM employees wrote him several letters
explaining that, because his records were in the custody of
the CIA, his inquiries should be directed there. A letter from
the OPM Office of Retirement Programs, for example, in-
formed him that "[s]ince your records are currently main-
tained by the CIA Retirement and Disability System ... we
have forwarded a copy of your correspondence to them."
Frugone then wrote to the CIA directly. In response, he
received a letter from the director of an otherwise unidenti-
fied "Office of Independent Contractor Programs," which said
that though Frugone had paid Social Security taxes in the
past, he had not paid them in enough calendar quarters to
make him eligible for benefits. The letter did not identify the
employment with respect to which Frugone had participated
in the Social Security system.
Not satisfied with this answer, Frugone filed a FOIA
request with the CIA for all records pertaining to himself or
to projects with which he was involved while employed by the
agency. When the CIA informed him that it would not be
able to respond to his application within the ten day period
then prescribed by 5 U.S.C. s 552 (a)(6)(A)(i), Frugone filed
this lawsuit. Shortly thereafter, he received a letter from the
CIA formally denying his request. The agency explained
that "except in those instances wherein we have officially
acknowledged a relationship with an individual, we are unable
to so acknowledge."
The CIA then moved for summary judgment, arguing that
its refusal either to confirm or to deny Frugone's employment
was warranted under Exemptions 1 and 3 of the FOIA*
because a more definitive response would contravene the
National Security Act of 1947, 50 U.S.C. s 403-3(c)(6), the
Central Intelligence Act of 1949, id. s 403g, and Executive
Order No. 12,958, 3 C.F.R. 333 (1996). In opposing summary
judgment, Frugone made clear that the only issue before the
court was whether the CIA may give a so-called "Glomar"
response, see Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir.
1976) (CIA refused to confirm or deny existence of informa-
tion regarding research vessel Glomar Explorer), where "an-
other Executive Branch agency ... has ... already con-
firmed that [Frugone] was employed by CIA in the past."
The district court granted the Government's motion for sum-
mary judgment "for essentially the reasons advanced by [the
CIA]," and Frugone appealed.
II. Analysis
We begin by noting the modesty of both the legal argument
Frugone advances and the relief he seeks. No longer does he
__________
* The FOIA does not apply to matters that are:
(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; [or] ...
(3) specifically exempted from disclosure by statute ... provid-
ed 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....
demand all records concerning himself and any projects with
which he was purportedly associated; he would now be
satisfied with an acknowledgment that the CIA employed him
at one time and that it currently has custody of his personnel
file. Moreover, he does not deny that under Exemptions 1
and 3 the CIA could, in the usual case, refuse to make even
those disclosures. Instead, his sole claim on appeal is that
because in this case the OPM acknowledged the existence of
his relationship with the CIA, so too must the CIA.
Newly limited though it is, Frugone's claim still does not
succeed. His argument begins and ends with the proposition
that the Government waives its right to invoke an otherwise
applicable exemption to the FOIA when it makes an "official
and documented" disclosure of the information being sought.
Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990). That
observation is inapplicable to the present case, however, for
we do not deem "official" a disclosure made by someone other
than the agency from which the information is being sought.
See, e.g., id. at 765-66 (CIA could refuse to disclose classified
information even if already reported in congressional commit-
tee report); Afshar v. Department of State, 702 F.2d 1125,
1133 (D.C. Cir. 1983) (same, regarding information reported
in book by former CIA official); Phillippi v. CIA, 655 F.2d
1325, 1330-31 (D.C. Cir. 1981) (same, regarding information
reported in book by former Director of Central Intelligence);
Salisbury v. United States, 690 F.2d 966, 971 (D.C. Cir. 1982)
("[B]are discussions by this court and the Congress of [the
National Security Agency's] methods generally cannot be
equated with disclosure by the agency itself of its methods of
information gathering"); accord, Alfred A. Knopf, Inc. v.
Colby, 509 F.2d 1362, 1370 (4th Cir. 1975) ("It is one thing for
a reporter or author to speculate or guess that a thing may be
so or even, quoting undisclosed sources, to say that it is so; it
is quite another thing for one in a position to know of it
officially to say that it is so").
Frugone protests that in each of our prior cases the
information at issue reached the public by way of the Con-
gress or the media; a different result would have obtained, he
suggests, had the initial disclosure been made by an agency of
the Executive Branch, such as the OPM here. Neither law
nor logic supports that position, however.
In Military Audit Project v. Casey, 656 F.2d 724 (1981),
this court rejected a claim that because the National Science
Foundation had already issued a memorandum describing the
function of the once-secret vessel Glomar Explorer, the CIA
could not invoke an otherwise applicable exemption to the
FOIA with respect to the same information. Because CIA
officials stated in affidavits that confirmation of the purpose
of the craft would remove any "lingering doubts" that a
foreign intelligence service might have on the subject, and
that the perpetuation of such doubts may be an important
means of protecting national security, release of the request-
ed material would still have had national security significance.
Id. at 745. Even if the NSF memorandum was correct,
therefore, we concluded that its disclosure did not affect the
CIA's right to invoke Exemptions 1 and 3 of the FOIA. See
id. at 742-45.
The rationale of our decision in Military Audit Project
applies with equal force to the present case. The CIA has
again submitted an affidavit persuasively describing, both
generally and with reference to this case, the untoward
consequences that could ensue were it required either to
confirm or to deny statements made by another agency. If,
for instance, the CIA were officially to admit that it had
employed Frugone (assuming it had), that could cause greater
diplomatic tension between Chile and the United States than
do the informal, and possibly erroneous, statements already
made by the OPM; alternatively, if the CIA were officially to
deny that it had employed Frugone (assuming it had not),
that would lessen the burden facing a foreign intelligence
agency attempting to track the CIA's covert activities abroad.
Whatever the true state of affairs, therefore, the CIA avers
that requiring it to break its silence upon the subject of
whether it had employed Frugone would harm the interests
of the United States.
Mindful that courts have little expertise in either interna-
tional diplomacy or counterintelligence operations, we are in
no position to dismiss the CIA's facially reasonable concerns.
See id. at 745 (government affidavits regarding harm that
disclosure could cause to national security entitled to "sub-
stantial weight"). Consequently, we cannot treat the state-
ments of the OPM upon which Frugone relies as tantamount
to an official statement of the CIA.
Not only is Frugone's argument foreclosed by precedent, it
is also difficult to square with the National Security Act,
which requires the Director of Central Intelligence to "pro-
tect intelligence sources and methods from unauthorized dis-
closure." 50 U.S.C. s 403-3 (c)(6). Common sense suggests
that the DCI must have authority to maintain secrecy com-
mensurate with this responsibility. If Frugone were right,
however, then other agencies of the Executive Branch--
including those with no duties related to national security--
could obligate agencies with responsibility in that sphere to
reveal classified information. We think it very unlikely that
the Congress intended the FOIA to create such an anomalous
result. Accordingly, we hold that only the CIA can waive its
right to assert an exemption to the FOIA.
III. Conclusion
For the foregoing reasons, the judgment of the district
court is
Affirmed.