Legal Opinion: GMP-0109

Index: 7.265, 7.370, 7.413

Subject: FOIA Appeal: Disclosing Congressional Correspondence

August 17, 1992

Joan Jonkel, Esq.

250 Station Drive

Box 8687

Missoula, Montana 59807

Dear Ms. Jonkel:

This is in response to your Freedom of Information Act

(FOIA) January 8, 1992 appeal requesting all correspondence from

individuals, and organizations or other outside parties,

including correspondence from members of Congress or their staff,

contained in HUD\'s case files on four cases entitled Concerned

Citizens v. Lee, HUD Case Nos. 08-91-0317-1, 08-91-0318-1, 08-91-

0322-1, 08-91-0343-1. These cases are active housing

discrimination cases brought under Title VIII of the Civil Rights

Act of 1968, 42 U.S.C. 3601. Michael R. Chitwood, Regional

Administrator, Denver Regional Office, in a letter to you dated

December 16, 1991, denied your request for the information under

Exemption 7(A) of the FOIA, 5 U.S.C. Section 552(b)(7)(A), and

the Privacy Act, 5 U.S.C. Section 552a.

I have determined to affirm, in part, and reverse, in part,

the initial denial.

Exemption 7(A) of the FOIA protects from disclosure:

records or information compiled for law enforcement

purposes, but only to the extent that the production of

such law enforcement records or information (A) could

reasonably be expected to interfere with enforcement

proceedings \....

The Department is conducting an investigation into the

complaints brought in the Concerned Citizens v. Lee cases. The

materials that you have requested are part of an ongoing

investigation conducted under Title VIII by the Department in

connection with possible violations of law. Premature disclosure

of these documents would interfere with the Department\'s

investigation and with possible conciliation and enforcement

activities. By revealing evidence, which is not otherwise

publicly available early in the Title VIII process, conciliation

efforts become difficult and the Government is handicapped in

presenting its case in formal enforcement proceedings should that

eventuality become necessary. Therefore, release of the

information to you at this time would interfere with ongoing

enforcement proceedings and hence the information may be withheld

under Exemption 7(A). See Center for National Policy Review on

Race and Urban Issues v. Weinberger, 502 F.2d 370 (D.C. Cir.

1974\)

In addition, the Privacy Act of 1974, at 5 U.S.C. Section

552a(k)(2), exempts certain investigatory records from mandatory

disclosure. The records you have requested are contained in a

system of records which is exempt under subsection (k)(2). See

Privacy Act Issuances, 1989 Compilation, HUD/Dept.-15, Equal

Opportunity Housing Complaints.

I have determined to reverse the initial denial and disclose

copies of Congressional correspondence involving these cases.

Disclosure of this information would not interfere with the

Department\'s ongoing enforcement proceedings. Accordingly, I am

releasing the following documents:

1.Privacy Act release dated October 16, 1991 to Senator

Conrad Burns from Donald and Richard Lee authorizing

inquiries on their behalf, with attached request. The

Lees\' Social Security Numbers, address and home

telephone numbers are being withheld under Exemption 6

of the FOIA, 5 U.S.C. Section 552(b)(6), to protect

their personal privacy;

2.A letter to Senator Burns from Donald Lee dated

December 23, 1991, with six pages of attachments;

3.A letter to Lloyd Miller, Director, Office of Fair

Housing and Equal Opportunity, Denver Regional Office,

from Senator Burns dated January 6, 1992;

4.A letter to Senator Burns from Michael Chitwood,

Regional Administrator, Denver Regional Office,

dated January 29, 1992.

You have the 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)

Enclosure

cc: Yvette Magruder

Michal Stover, 8G