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FOIL-AO-13758

December 11, 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 facts presented in your correspondence.

Dear

I have received your letter in which you sought my opinion concerning rights of access to
records pertaining to the HUD Section 8 program administered by the Huntington Housing Authority.
Specifically, you wrote that you are interested in obtaining records indicating "what landlords are
receiving in HUD money and for what properties and their locations."

In this regard, first, I note 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, 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.

The case of Tri-State Publishing, Co. v. City of Port Jervis (Supreme Court, Orange County,
March 4, 1992) in my view, serves as precedent in the context of your inquiry. 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 an 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, based on the thrust of court's decision, the identity of a landlord must be
disclosed, for payments are made by governmental entities to the landlord. However, if a tenant rents
in a unit other than a multiple dwelling and disclosure of the address of that unit would make the
identity of the tenant easily traceable or known, I believe that the address could be withheld based on
considerations of privacy.

I hope that I have been of assistance.

Sincerely,

Robert J. Freeman
Executive Director

RJF:tt

cc: Richard Wankel