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March 16, 1999

 

 

 

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TO: kris@cnct.com

FROM: Robert J. Freeman, Executive Director

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.

As promised, I have contacted the Office of Counsel at the Division of Housing and
Community Renewal (DHCR) in an effort to acquire additional information concerning your
inquiries relating to access to records of the Office of Rent Administration at DHCR.

In this regard, I offer the following comments.

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. In my view, two of the grounds for denial are pertinent to an analysis
of rights of access to the records sought. Section 87(2)(a) pertains to records that "are
specifically exempted from disclosure by state or federal statute", and §87(2)(b) involves the
ability to withhold records insofar as disclosure would constitute "an unwarranted invasion of
personal privacy." Section 89(2) provides additional guidance and examples of unwarranted
invasions of personal privacy.

In your initial area of inquiry, you referred to a provision in the New York City Rent
Control Law, which is codified as §26-410 of the Unconsolidated Laws and states in
subdivision (e) that the City rent agency, which is now DHCR, "shall compile and make
available for public inspection...a copy of each decision rendered by it upon granting, or
denying, in whole or in part, any protests filed under this section..."

Based on a discussion of the matter with DHCR attorneys, the decisions, which are
also characterized as "final orders", were available until 1994 only following the deletion of
personally identifying details; since then, the orders have been available in their entirety.
Nevertheless, the underlying case files, including evidentiary material, are withheld from any
person except a party. The primary basis for withholding those documents is §26-409(h) of
the Unconsolidated Laws, which originally appeared as §Y51-7 of the New York City
Administrative Code. That provision states that:

"The city rent agency shall not publish or disclose any
information obtained under this title that the city rent agency
deems confidential or with reference to which a request for
confidential treatment is made by the person furnishing such
information, unless the city rent agency determines that the
withholding thereof is contrary to the public interest."

The provision quoted above has been interpreted to permit the City rent agency, now DHCR,
to preclude disclosure of the records in question when there is a rational basis to do so
[Bernkrant v. City Rent and Rehabilitation Administration, 242 NYS2d 753, aff'd 20 AD 2d
682 (1963)]. Additionally, §26-517 of the Unconsolidated Laws entitled "Rent registration"
states in subdivision (b) 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 or her authorized
representative."

From my perspective, the statutes referenced above reflect an intent to guarantee that
the public has the right to know the substance of an agency's decisions relative to rent
regulation, but concurrently, the ability to protect personal privacy. In short, the disclosure
of final orders by DHCR and the withholding of the underlying case files and related materials
appears, in my opinion, to be consistent with applicable statutes.

Your second area of inquiry related to access to "the World War II rent registration
cards which registered the rents and services for apartments pursuant to the former Federal
Emergency Price Control Act." In this regard, I was informed that DHCR does maintain those
cards, some in hard copy, others on microfilm. In terms of rights of access, the same
conclusion would be reached as in the case of the records considered above, for the language
of the applicable statute, §26-409(h) of the Unconsolidated Laws, is parallel to that of that
contained in the statutes cited earlier. In short, I believe that the records may be considered
confidential, unless they are requested by a party.

Notwithstanding the foregoing, while I am not familiar with the specific contents of
the records that are the subject of your interest, it is likely that they could be withheld in great
measure if not in their entirety under the Freedom of Information Law on the ground that
disclosure would result in an unwarranted invasion of personal privacy. Further, while I am
unaware of the intended use of the records, I point out that §89(2)(b)(iii) states that an
unwarranted invasion of privacy includes the sale or release of a list of names and addresses
if the list would be used for commercial or fund raising purposes.

I hope that I have been of assistance.

RJF:jm

cc: Marcia Hirsch
Sheldon Melnitsky