FOIL-AO-13091

December 26, 2001

The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the facts presented in your correspondence.

Dear

I have received your letter and appreciate your kind words. You have sought an opinion and assistance relating to a request made under the Freedom of Information Law by the City of Long Beach for "rent rolls", lists of rent stabilized buildings located within the City, maintained by the State Division of Housing and Community Renewal ("the Division"). You indicated that those records had been made available in the past with a "pledge of confidentiality" and that they are needed by the City to properly assess real property. The Division, however, denied access on the basis of certain provisions in the Emergency Tenant Protection Act and its regulations.

In this regard, I offer the following comments.

First, as you are aware, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i) of the Law.

Relevant in this instance is the initial ground for denial, which pertains to records that "are specifically exempted from disclosure by state or federal statute." The Emergency Tenant Protection Act is found in the Unconsolidated Laws, Chapter 249-B. Section 12-a of Chapter 249-B, which is the same statute as that published in McKinney's as §8632-a of the Unconsolidated Laws, refers in subdivision (a) to rent registration. That provision requires that a variety of information be transmitted by "housing accommodations" to the Division, such as the addresses of buildings, the number of housing accommodations within those buildings, the rents charged, the number of rooms and the like. Subdivision (b) specifies that:

"Registration pursuant to this section shall not be subject to the freedom of information law, provided that registration information relative to a tenant, owner, lessor or subtenant shall be made available to such party or his authorized representative."

Based on the foregoing, I believe that the records of your interest are specifically exempted from disclosure by statute and are beyond rights of access conferred by the Freedom of Information Law.

In consideration of the language of the provision quoted above, it is suggested that the records be requested, but not under the Freedom of Information Law. As you are aware, that statute serves as a vehicle under which any member of the public, regardless of status or interest, may seek and often obtain records maintained by entities of state and local government in New York. As I understand the situation, the request was not made by a person in his or her capacity as a member of the public, but rather by an official of the City of Long Beach in his official capacity. While the Freedom of Information Law may have been referenced, it is clear in my view that the request was made by a City official in conjunction with the performance of his official duties; the request was not made for any personal use, but rather for the purpose of carrying out a governmental function.

If the Division had disclosed the records sought to the City in response to a request citing the Freedom of Information Law, it would have acted in contravention of §8632-a(b) of the Unconsolidated Laws. However, it may be contended that a disclosure made to another governmental entity that has sought records to carry out a governmental function cannot be equated with a disclosure made to a member of the public under the Freedom of Information Law. For that reason, again, it is suggested that a second request be made, specifying that the request is not being made under the Freedom of Information Law, but as a governmental entity needing the records to carry out its governmental functions and activities.

I note that there have been many instances in which records need not be disclosed to the public at large under the Freedom of Information Law, but in which the same records have been shared with other government agencies when it is clear that the agencies have sought the records in the performance of their official duties. Unless a statute forbids an agency from so doing, cooperation among agencies has been encouraged and fostered.

In an effort to enhance the possibility of disclosure and cooperation, copies of this response will be forwarded to Division officials.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Gregory C. Fewer
Angelique Joseph