Legal Opinion: GMP-0110

Index: 7.331, 7.350, 7.360, 7.413

Subject: FOIA Appeal: Conciliation Records\--Title VIII

August 18, 1992

Ms. Mattye F. Faulkner

P. O. 4515

San Pedro, California 90731

Dear Ms. Faulkner:

This is in response to your Freedom of Information Act

(FOIA) appeal dated January 29, 1990 \[sic\] 1991, of a denial

of information by the San Francisco Regional Office.

Although your appeal letter does not refer to a case number

or the date of the initial denial letter by the San

Francisco Regional Office, we assume that you are appealing

the denial letter issued to you on December 31, 1990 by

Dirk Murphy, Public Information Officer, San Francisco

Regional Office. In your initial request dated December 10,

1990, you requested \"everything in the investigatory file

\... including all correspondence to and from HUD \... all

material/documents obtained by the investigator and all

notes\" concerning HUD Case Number 09-89-1382-1, a Title VIII

investigatory case file. Mr. Murphy released copies of

information pertaining to your request except intra-office

documents, withheld under Exemption 5, and information

pertaining to conciliation, withheld under Exemption 4.

I have determined to affirm the initial denial of the

intra-agency documents under Exemption 5 and information

pertaining to conciliation under Exemption 3.

In your appeal, you have indicated that you are the

aggrieved party in this Title VIII case. However, HUD Case

Number 09-89-3812-1 does not contain any information

identifying you as the aggrieved party. The complainant in

the case was the Hollywood Wilshire Fair Housing Council.

The information available under the FOIA of a Title

VIII case file is not the same for third parties as it is

for the complainant and respondent. Since our records do

not identify you as the complainant, we are treating your

appeal as a third party request.

Exemption 5 of the FOIA, 5 U.S.C. Section 552(b)(5),

exempts from mandatory disclosure, \"inter-agency or intra-

agency memoranda or letters which would not be available by

law to a party other than an agency in litigation with the

agency.\" The purpose of this exemption is to preserve free

and candid internal agency deliberations leading to

executive branch decision-making. In keeping with this

policy, the Supreme Court has construed Exemption 5 as

encompassing the advice, opinions, and recommendations of

staff members in the agency decision-making process. NLRB

v\. Sears, Roebuck and Co., 421 U.S. 132, 151 (1975). The

inter-agency memorandum and the investigator\'s handwritten

notes comes within Exemption 5 and I am affirming the denial

under the exemption.

The San Francisco Office also withheld documents

concerning the conciliation process pursuant to Exemption 4.

I am affirming the denial of such information under

Exemption 3.

Exemption 3 of the FOIA, 5 U.S.C. Section 552(b)(3),

incorporates the disclosure prohibitions that are contained

in various other federal statutes. Exemption 3 allows the

withholding of information prohibited from disclosure by

another statute only if that statute \"(A) requires that the

matters be withheld from the public in such a manner as to

leave no discretion on the issue, or (B) establishes

particular criteria for withholding or refers to particular

types of matters to be withheld.\" A statute thus falls

within the exemption\'s coverage if it satisfies any one of

its disjunctive requirements. See Irons & Sears v. Dann,

606 F.2d 1215, 1220 (D.C. Cir. 1979), cert. denied, 444 U.S.

1075 (1980).

The file you requested has information concerning the

conciliation process, consisting of: (1) handwritten staff

notes; (2) correspondence with Respondent\'s counsel

discussing terms for the conciliation agreement; and (3)

draft copies of the conciliation agreement. The Fair

Housing Amendments Act of 1988, (FHAA) P.L. 100-430, amends

Title VIII of the Civil Rights Act of 1968 to prohibit

disclosure of information obtained in the course of

conciliation without the written consent of the persons

concerned. 42 U.S.C. Section 3610(d). See also, 24 C.F.R.

Section 103.330. Beverly G. Agee, Regional Counsel,

contacted the Respondent\'s representative in an attempt to

obtain such consent. The representative refused to give her

consent. This meets the requirements of subpart (B) of

Exemption 3. Accordingly, I have decided to affirm the

initial denial of the conciliation information pursuant to

Exemption 3 of the FOIA and the FHAA of 1988.

In addition, the file contains a conciliation agreement

signed by the parties and the terms of such agreement

provide that the document shall not be made public unless

the complainant and respondent otherwise agree. Under the

Fair Housing Amendments Act, 42 USC Section 3610(b)(4), a

\"conciliation agreement shall be made public unless the

complainant and the respondent otherwise agree and the

Secretary determines that disclosure is not required to

further the purposes of this subchapter.\" The Respondent\'s

representative also advised Ms. Agee that the respondent

would not agree to the conciliation agreement being

disclosed to the public and the Secretary has not determined

that disclosure is required to further the purposes of the

Act. Therefore, I have determined that the requirements of

subpart (B) of Exemption 3 have been met with respect to the

conciliation agreement itself and I am affirming the initial

denial of this document.

Although it is not clear whether you were previously

provided information contained in the investigatory file

concerning the tenants residing at respondent\'s properties,

particularly the name of the tenant, the unit size, the

number in each household, the date of occupancy, and the

base rent, I am denying you such information based on

Exemptions 6 and 7(C) of the FOIA, 5 U.S.C.

Section 552(b)(6),(7)(C).

Exemption 6 protects information in medical, personnel

and similar files. Exemption 7(C) protects personal privacy

information contained in records or information compiled for

law enforcement purposes. In determining whether

information can be withheld under Exemptions 6 and 7(C), the

public interest purpose for disclosure of personal

information must be balanced against the potential invasion

of privacy. Wine Hobby, USA, Inc., v. U.S. Internal Revenue

Service, 502 F.2d 133 (3rd Cir. 1974).

United States Department of Justice v. Reporters

Committee for Freedom of the Press, 489 U.S. 749 (1989)

(hereinafter \"Reporters Committee\") establishes a framework

for analyzing the public interest under Exemptions 6 and

7(C) by establishing that only the furtherance of FOIA\'s

core purpose of informing citizens about \"what their

government is up to\" can warrant the release of information

implicating individual privacy interests. Reporters

Committee, 489 U.S. at 772-73.

In this case, the information contained in the FHEO

files concerning tenants involves personal privacy

information. I have determined that there is no public

interest purpose in release of such information and, thus,

under the balancing test, the information can be withheld

under the exemptions.

I have also determined pursuant to 24 C.F.R.

Section 15.21 that the public interest in protecting advice,

opinions, and recommendations in the deliberative process

and in protecting personal privacy militates against release

of the withheld information.

You are hereby advised that you have a right to

judicial review of this determination under 5 U.S.C.

Section 552 (a)(4).

Very sincerely yours,

George L. Weidenfeller

Deputy General Counsel (Operations)

cc: Yvette Magruder

Beverly Agee, 9G