FOIA Appeal: Info. on Default of Single Family Mortgage

Legal Opinion: GMP-0059

Index: 7.350, 7.360, 7.465

Subject: FOIA Appeal: Info. on Default of Single Family Mortgage

FOIA Exemption 6: Name/Address Withheld

February 26, 1992

Mr.

Denver, Colorado 80210

Dear Mr. :

This is in response to your letter of February 5, 1992,

requesting administrative review under the Freedom of Information

Act (FOIA) of the partial denial issued by the Executive

Secretariat. By letter dated December 17, 1991, you requested

information on the default of your mortgage and the denial of

your application for assignment of the loan to HUD. In a letter

to you dated January 8, 1992 (FOIA Control No.: FI-280651E),

Gail Lively, former Director, Executive Secretariat, supplied you

with 143 pages of documentation and withheld, under FOIA

Exemption 5, three pages of handwritten staff reviews and

recommendations. She also withheld under FOIA Exemption 6 part

of a computer printout pertaining to an unrelated individual\'s

mortgage information.

I have decided to affirm, in part, and reverse, in part, the

initial denial.

Exemption 5 exempts from mandatory disclosure \"inter-agency

or intra-agency memorandums or letters which would not be

available by law to a party . . . in litigation with the agency.\"

There are two requirements for invocation of the deliberative

process privilege. First, the communication must be

predecisional, i.e., antecedent to the adoption of an agency

policy, Renegotiation Board v. Grumman Aircraft Engineering

Corp., 421 U.S. 168, 184, 95 S.Ct. 1491, 1500 (1975). Second,

the document must be \"deliberative,\" that is, \"actually . . .

related to the process by which policies are formulated.\" Jordan

v\. Dept. of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978).

The documentation withheld under Exemption 5 consists of:

\(1\) HUD Form 92209, Analysis and Documentation of Assignment

Eligibility Criteria, with a handwritten attachment, and (2) a

handwritten \"memorandum of call\" slip. The HUD Form 92209

contains the staff review of eligibility criteria for mortgage

assignment, as well as staff comments and recommendations. The

handwritten attachment to the HUD Form 92209 contains handwritten

comments and conclusions on your case. Since this documentation

contains predecisional staff comments, conclusions and

recommendations, it is exempt from disclosure under the

deliberative process privilege of Exemption 5, 5 U.S.C.

552(b)(5).

I have determined to reverse the denial with respect to the

\"memorandum of call\" slip. This document contains information on

the arrangement of an appointment and does not involve

predecisional advice or recommendations. Thus, it is not exempt

from disclosure under Exemption 5. A copy of this document is

enclosed.

The deleted information on the copy of the Single Family

Insured System computer printout provided to you pertains to

mortgage information regarding an individual not part of, or

related to, your request. This information was properly withheld

under Exemption 6, 5 U.S.C. 552(b)(6), which protects an

individual\'s personal privacy.

Pursuant to 24 C.F.R. 15.21, I have determined that the

protection of the deliberative process militates against

disclosure of HUD staff handwritten comments, reviews and

recommendations. I have also determined that the privacy

interests of mortgagors militates against release of the

unrelated mortgage information withheld under Exemption 6.

You have a right to judicial review of this determination

under 5 U.S.C. Sec. 552(a)(4).

Very sincerely yours,

C. H. Albright, Jr.

Principal Deputy General Counsel

Enclosure

cc: Yvette Magruder

Michal Stover, 8G

2