May 14, 1996



Mr. John L. Kirkpatrick
Kirkpatrick & Kirkpatrick, P.C.
P.O. Box 350
Fort Plain, NY 13339

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.

Dear Mr. Kirkpatrick:

I have received your letter of April 30, as well as the materials attached to it. In your capacity as Village Attorney for the Village of Fort Plain, you referred to requests for records directed to the Village concerning HUD Block Grants. You have sought guidance in the matter and asked whether the determination rendered in Tri-State Publishing, Co. v. City of Port Jervis (Supreme Court, Orange County, March 4, 1992) serves as precedent or whether it has been modified or overruled.

In this regard, to the best of my knowledge, Tri-State Publishing was not appealed and in fact is the only judicial decision rendered in New York that pertains specifically to the kinds of records at issue.

As you are aware, 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.

It appears that there may be 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. It is your contention that in a municipality as small as Fort Plain, "even to divulge the addresses or the Landlords' names will in effect be divulging information on tenants." I appreciate your concern and note that the court wrote 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 and in view of the small size of the Village of Fort Plain, I believe that the Village may withhold records to the extent that disclosure would identify section 8 tenants, including the addresses, irrespective of whether a multiple dwelling unit is occupied by section 8 tenants as well as others. In a municipality of less than 3,000 with few if any large housing units, it would seem that disclosure of a tenant's address would render that person's identity readily traceable.

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 reasonably ascertainable, could in my view be withheld.

I hope that I have been of assistance.



Robert J. Freeman
Executive Director