UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


FRUGONE, EDUARDO J.

v.

CIA


97-5199a

D.C. Cir. 1999


*	*	*


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


II. Analysis


We begin by noting the modesty of both the legal argument  Frugone
advances and the relief he seeks. No longer does he 




__________

n * 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


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


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


III. Conclusion


For the foregoing reasons, the judgment of the district  court is


Affirmed.