February 21, 2002
The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, unless otherwise indicated.
As you are aware, I have received your letter of January 16, which reached this office on January 23. You have sought an advisory opinion concerning a request for records indicating the "names, addresses and amounts of Federal grants the city [of Troy] has distributed in the past 3 years."
Prior to receiving your request for an opinion, the person seeking the records contacted me by phone and said that analogous information had been disclosed in the past by the City, and I believe that she inferred that disclosures were made at the direction of the U.S. Department of Housing and Urban Development (HUD). After discussing the matter with you, you informed me that you contacted HUD, and that officials of that agency stated that there is no provision of federal law that governs rights of access to the records in question and that HUD does not maintain duplicates of the records sought.
From my perspective, if participation in a grant or loan program is based on an applicant's income, personally identifying details relating to that person may be withheld. Conversely, if participation is not based on income, but perhaps other factors, such as the location or age of property, there would likely be no basis for denial of access.
By way of background, as a general matter, 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.
I note that there is a decision that focused on the same kinds of records as those at issue, for it involved personal information contained in records concerning a HUD program, specifically, the "section 8" housing program. Tri-State Publishing, Co. v. City of Port Jervis (Supreme Court, Orange County, March 4, 1992) includes excerpts from an advisory opinion that I prepared in 1991, and I believe that the court essentially agreed with the thrust of that opinion. Because tenants in section 8 housing must meet an income qualification, it has been consistently advised that insofar as disclosure of records would identify tenants, they may be withheld on the ground that disclosure would constitute "an unwarranted invasion of personal privacy" [see Freedom of Information Law, §87(2)(b)]. Conversely, following the deletion of identifying details pertaining to tenants, the remainder of the records, i.e., those portions indicating identities of landlords, contractors and the amounts that are paid, must be disclosed.
There was concern with respect to what the court characterized as a "hybrid situation" in which "a landlord owns one or more multiple dwellings where less than all units in each building are Section 8 units." The court determined that in that kind of situation, "it may reasonably be said that a subsidized tenant's identity would not be readily ascertainable." Based upon that finding, the court determined that the names of landlords and the addresses of multiple dwellings, as well as related information must be disclosed.
In my opinion, the identity of a landlord must be disclosed, for payments are made by governmental entities to the landlord. On the other hand, however, insofar as the records sought pertain to persons who participate based on an income qualification, I believe that the Freedom of Information Law and the holding in Tri-State Publishing authorize the City to withhold personally identifying details on the ground that disclosure would constitute an unwarranted invasion of personal privacy.
I hope that I have been of assistance.
Robert J. Freeman
cc: Marcie Haskell