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April 20, 2001

 

FOIL-AO-12634

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 March 10 and the materials attached to it. You have sought
guidance concerning your unsuccessful efforts in obtaining records, particularly "approved Request
for Lease Approvals", maintained by the Rochester Housing Authority. Based on a review of the
correspondence, I offer the following comments.

First, the responses to your requests repeatedly refer to the federal Freedom of Information
Act (5 USC §552). In my view, since that statute applies only to records of federal agencies, it is
inapplicable in the context of your requests. I note, too, that it has been held that municipal housing
authorities in this state are subject to the New York Freedom of Information Law. By way of
background, that statute applies to agency records and that §86(3) of the Law defines the term
"agency" to include:

"any state or municipal department, board, bureau, division,
commission, committee, public authority, public corporation, council,
office of other governmental entity performing a governmental or
proprietary function for the state or any one or more municipalities
thereof, except the judiciary or the state legislature."

Section 3(2) of the Public Housing Law states that municipal housing authorities are public
corporations. Since the definition of "agency" includes public corporations, I believe that a public
housing authority is clearly an "agency" required to comply with the Freedom of Information Law,
and it has been so held [Westchester Rockland Newspapers, Inc. v. Fischer, 101 AD 2d 840 (1985)].

Second, in an initial response to your request, you were informed the Authority is not
required to disclose "because there is no good faith reason why you need them." In this regard,
when records are accessible under the Freedom of Information Law, it has been held that they should
be made equally available to any person, regardless of one's status, interest or the intended use of the
records [see Burke v. Yudelson, 368 NYS 2d 779, aff'd 51 AD 2d 673, 378 NYS 2d 165 (1976)].
Moreover, the Court of Appeals, the State's highest court, has held that:

"FOIL does not require that the party requesting records make any
showing of need, good faith or legitimate purpose; while its purpose
may be to shed light on government decision-making, its ambit is not
confined to records actually used in the decision-making process.
(Matter of Westchester Rockland Newspapers v. Kimball, 50 NY 2d
575, 581.) Full disclosure by public agencies is, under FOIL, a public
right and in the public interest, irrespective of the status or need of the
person making the request" [Farbman v. New York City Health and
Hospitals Corporation, 62 NY 2d 75, 80 (1984)].

Farbman pertained to a situation in which a person involved in litigation against an agency requested
records from that agency under the Freedom of Information Law. In brief, it was found that one's
status as a litigant had no effect upon that person's right as a member of the public when using the
Freedom of Information Law, irrespective of the intended use of the records. Similarly, unless there
is a basis for withholding records in accordance with the grounds for denial appearing in §87(2), the
use of the records, including the potential for commercial use or the status of the applicant, is in my
opinion irrelevant.

Third, one of the contentions offered by the attorney for the Authority is that your request did
not "reasonably describe" the records sought as required by §89(3). Here I point out that it has been
held by the Court of Appeals that to deny a request on the ground that it fails to reasonably describe
the records, an agency must establish that "the descriptions were insufficient for purposes of locating
and identifying the documents sought" [Konigsberg v. Coughlin, 68 NY 2d 245, 249 (1986)].

The Court in Konigsberg found that the agency could not reject the request due to its breadth
and also stated that:

"respondents have failed to supply any proof whatsoever as to the
nature - or even the existence - of their indexing system: whether the
Department's files were indexed in a manner that would enable the
identification and location of documents in their possession (cf.
National Cable Tel. Assn. v Federal Communications Commn., 479
F2d 183, 192 [Bazelon, J.] [plausible claim of nonidentifiability
under Federal Freedom of Information Act, 5 USC section 552 (a)
(3), may be presented where agency's indexing system was such that
'the requested documents could not be identified by retracing a path
already trodden. It would have required a wholly new enterprise,
potentially requiring a search of every file in the possession of the
agency'])" (id. at 250).

In my view, whether a request reasonably describes the records sought, as suggested by the Court
of Appeals, may be dependent upon the terms of a request, as well as the nature of an agency's filing
or record-keeping system. In Konigsberg, it appears that the agency was able to locate the records
on the basis of an inmate's name and identification number.

While I am unfamiliar with the recordkeeping systems of the Authority, to extent that the
records sought can be located with reasonable effort, irrespective of the volume of the materials, I
believe that the request would have met the requirement of reasonably describing the records. On
the other hand, if the records are not maintained in a manner that permits their retrieval except by
reviewing perhaps hundreds or even thousands of records individually in an effort to locate those
falling within the scope of the request, to that extent, the request would not in my opinion meet the
standard of reasonably describing the records.

Next, with respect to rights of access, 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, Tri-State Publishing, Co. v. City of Port Jervis (Supreme Court,
Orange County, March 4, 1992), which in my view, serves as precedent. The 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)]. 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. The court stated 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 likelihood 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.

In my opinion, the identity of a landlord must be disclosed, for payments are made by
governmental entities to the landlord. Consequently, I believe that the records sought, if I correctly
understand their content, must be disclosed.

Lastly, it does not appear that you were informed of the right to appeal the denial of your
request. The provision dealing with the right to appeal a denial of access to records is found in
§89(4)(a) of the Freedom of Information Law, which states in relevant part that:

"any person denied access to a record may within thirty days appeal
in writing such denial to the head, chief executive or governing body
of the entity, or the person therefor designated by such head, chief
executive, or governing body, who shall within ten business days of
the receipt of such appeal fully explain in writing to the person
requesting the record the reasons for further denial, or provide access
to the record sought."

Further, the regulations promulgated by the Committee on Open Government (21 NYCRR
Part 1401), which govern the procedural aspects of the Law, state that:

"(a) The governing body of a public corporation or the head, chief
executive or governing body of other agencies shall hear appeals or
shall designate a person or body to hear appeals regarding denial of
access to records under the Freedom of Information Law.

(b) Denial of access shall be in writing stating the reason therefor
and advising the person denied access of his or her right to appeal to
the person or body established to hear appeals, and that person or
body shall be identified by name, title, business address and business
telephone number. The records access officer shall not be the appeals
officer" (section 1401.7).

It is also noted that the state's highest court has held that a failure to inform a person denied
access to records of the right to appeal enables that person to seek judicial review of a denial. Citing
the Committee's regulations and the Freedom of Information Law, the Court of Appeals in Barrett
v. Morgenthau held that:

"[i]nasmuch as the District Attorney failed to advise petitioner of the
availability of an administrative appeal in the office (see, 21 NYCRR
1401.7[b]) and failed to demonstrate in the proceeding that the
procedures for such an appeal had, in fact, even been established (see,
Public Officers Law [section] 87[1][b], he cannot be heard to
complain that petitioner failed to exhaust his administrative remedies"
[74 NY 2d 907, 909 (1989)].

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Jude McMillan
Elaine Pragle
Leonard A. Rosner