May 11, 2004
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.
I have received your letter and the materials attached to it.
You referred to an advisory opinion addressed to Mr. John Claasen on February 18 pertaining to his request for records maintained by the Huntington Housing Authority relating to properties owned by "real estate concerns." Although the addresses of the properties were disclosed, the inspection sheets were withheld on the ground that they constitute intra-agency materials falling within the scope of §87(2)(g) of the Freedom of Information Law. I advised that the content of those materials is the key element in determining the extent to which they may be withheld, and that those portions consisting opinion, advice or recommendations could be withheld, but that those consisting of statistical or factual information must be disclosed, unless a different exception to rights of access may be asserted.
You referred to portions of the records prepared by the building inspector in which he offers his "personal observations", as well "Additional Comments." You wrote that those comments "could be used to identify the location of the subsidized housing unit inhabited by tenants receiving Section 8 subsidies." Although my opinion has not changed, I offer the following clarification.
First, it is reiterated that comments in the nature of opinions, advice, conjecture and the like offered on the forms by the building inspector may be withheld under §87(2)(g). However, it is reemphasized that other portions of the records consisting of statistical or factual information must, in my view, be disclosed, again, unless a ground for denial of access separate from §87(2)(g) may be asserted.
Second, as you suggested, the initial ground for denial may be 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 statute 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 that is acquired from tenants. Depending on the facts and the nature of the records, a name, an address or other details that could identify a tenant in public housing might properly be withheld.
Third, since the matter involves Section 8 housing, particularly pertinent in my opinion is the determination rendered in Tri-State Publishing, Co. v. City of Port Jervis (Supreme Court, Orange County, March 4, 1992). 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 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. While Mr. Claasen is not associated with the news media, he specified that his interest involves "real estate concerns", rather than the identities of tenants.
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 portions of the records that identify 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.
Robert J. Freeman
cc: John Claasen