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December 7, 2000

FOIL-AO-12399

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 of October 30 in which you sought assistance in obtaining certain
records from the City of Long Beach Housing Authority.

Specifically, you sought records involving "Federal H.U.D. Section 8. Monthly payments
to the owner (landlord) 13 Riverside Blvd. For rent subsidies on behalf of the tenant in the above
premises from December 1998 ro the present date."

In response, the Executive Director of the Authority wrote that "According to New York State Public
Housing Law, that constitutes Chapter 44-a of the Consolidated Laws, the Long Beach Housing
Authority cannot disclose the information you requested."

In this regard, I offer the following comments.

First, 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.

The initial ground for denial is frequently relevant with respect to records relating to public
housing. That provision, §87(2)(a), pertains to records that "are specifically exempted from
disclosure by state or federal statute." the only provision of which I am aware in the Public Housing
Law that requires confidentiality, §159, provides guidance concerning the disclosure of information
furnished by applicants for dwellings in projects maintained by public housing authorities. That
statute states in part that:

"[I]nformation acquired by an authority or municipality or by an
officer or employee thereof from applicants for dwellings in projects
of an authority or municipality or from tenants of dwellings thereof
or from members of the family of any such applicant or tenant or
from employers of such persons or from any third person, whether
voluntarily or by compulsory examination as provided in this chapter,
shall be for the exclusive use and information of the authority or
municipality in the discharge of its duties under this chapter and shall
not be open to the public nor be used in any court in any action or
proceeding pending therein unless the authority, municipality or
successor in interest thereof is a party or complaining witness to such
action or proceeding."

Based on the language quoted above, a public housing authority or municipality can not disclose
information identifiable to tenants.

Second, since the matter involves Section 8 housing, particularly pertinent in my view is
the determination rendered in Tri-State Publishing, Co. v. City of Port Jervis (Supreme Court,
Orange County, March 4, 1992) serves as precedent or that decision 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)], even if the dwellings are not public housing
units or under the jurisdiction of a housing authority. 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.

The court referred to concern with respect to what it 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. I note that the court added that:

"While certain of the information ordered disclosed could indirectly
permit as astute and industrious individual to research the identity of
Section 8 recipients, the speculative liklihood and remoteness of this
occurrence especially in light of the statement of Petitioner that it is
not interested in the names of the recipients, must be balanced against
the presumption in favor of disclosure."

As I interpret the passage quoted above, disclosure in accordance with the court's order would not
preclude an individual or firm from learning of the identities of section 8 tenants if such persons or
entities demonstrated significant effort in attempt to gain such information. At the same time, the
court recognized that the names of tenants were not requested by or of interest to the applicant, a
newspaper.

From my perspective, in view of the court's recognition of the absence of any intent on the
part of the applicant to ascertain the names of section 8 tenants, the Authority may withhold tenants.

Nevertheless, in my opinion, the identity of a landlord must be disclosed, for payments are
made by governmental entities to the landlord, irrespective of the landlord's income and financial
standing. Other details, however, which if disclosed would make a tenant's identity ascertainable,
could in my view be withheld.

I hope that I have been of assistance.

Sincerely,

 

Robert J. Freeman
Executive Director
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