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FOIL-AO-15514

September 28, 2005

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

We are in receipt of your June 23, 2005 request for an opinion concerning the application of the Freedom of Information law to various records maintained by the New York State Division of Housing and Community Renewal.

The correspondence and the attachments which you submitted indicate that the Division of Housing and Community Renewal has denied your request for "a current list by community of all the rent regulated units covered under the Emergency Tenant Protection Act (ETPA) for Westchester County." You asked that the " list" should include the street address of each building with one or more rent regulated units, the total number of rent regulated units within each building, the name of each building (if any), and the name of the entity that owns each property. We are also requesting that the list include whether the regulated units are rent controlled or rent stabilized." The Division denied your request on the grounds that release of such materials would constitute an unwarranted invasion of personal privacy and that they were otherwise protected by the Rent Stabilization Code.

It is our view that the requested records are exempt from disclosure based on the provisions cited by the Division. In this regard, we offer the following comments.

First, as you may be aware, 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.

Relevant in this instance is the initial ground for denial, §87(2)(a), which pertains to records that "are specifically exempted from disclosure by state or federal statute." The Emergency Tenant Protection Act is found in the Unconsolidated Laws, Chapter 249-B. Section 12-a of Chapter 249-B, which is the same statute as that published in McKinney’s as §8632-a of the Unconsolidated Laws, and set forth as §2528.5 of the Rent Stabilization Code, refers in subdivision (a) to rent registration. That provision requires that a variety of information be transmitted by "housing accommodations" to the Division, such as the addresses of buildings, the number of housing accommodations within those buildings, the rents charged, the number of rooms and the like. Subdivision (b) specifies 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 authorized representative."

Based on the foregoing, we believe that the records of your interest are specifically exempted from disclosure by statute and are beyond rights of access conferred by the Freedom of Information Law.

I trust this meets with your request. Should you have any further questions, please contact me directly.

Sincerely,

Camille S. Jobin-Davis
Assistant Director

CSJD:tt