FOIA Appeal: Tenant Information

Legal Opinion: GMP-0056

Index: 7.360, 7.364

Subject: FOIA Appeal: Tenant Information

February 13, 1992

Linda C. Drake, Esq.

Legal Aid Bureau, Incorporated

29 West Susquehanna Avenue

Suite 305

Towson, Maryland 21204-5201

Dear Ms. Drake:

This is in response to your December 2, 1991 Freedom of

Information Act (FOIA) appeal. Your initial request was for

information pertaining to the Lakecrest Apartments.

Specifically, you requested the racial composition of the

subsidized units and the racial composition of the Lakecrest

complex. On October 31, 1991, Mr. James S. Kelly, Acting Freedom

of Information Liaison Officer, Baltimore Office, provided you

with information describing the Department\'s subsidy to Lakecrest

Apartments and information pertaining to the number and location

of subsidized units. Mr. Kelly further indicated that his office

did not have any current figures pertaining to the racial

composition of the apartment complex or the subsidized units.

Your appeal asserts that this information is contained in

paragraph 9(a) of HUD Form 50059, Owner\'s Certification of

Compliance with HUD\'s Tenant Eligibility and Rent Procedures.

Your appeal does not specify the purpose of your request.

I have determined to withhold HUD Form 50059 under

Exemption 6 of the FOIA.

Under the FOIA and our implementing regulations, HUD will

make available, subject to certain limitations, identifiable

records and documents. However, the information which you seek

is not included in the Agency\'s computerized system of records,

from which the information could be extracted. Obtaining this

information would require a manual search, manually extracting

information from approximately 200 forms and documents, and then

development of a separate record. This action is not mandated by

the FOIA and the Agency is not required to create or make such

records in response to a FOIA request.

Pursuant to Exemption 6 of the FOIA, 5 U.S.C. 552 (b)(6),

I have also determined not to release HUD Form 50059 for each

subsidized unit occupant of the Lakecrest Apartments. Exemption

6 authorizes the withholding of information contained in

\"personnel and medical files and similar files\", the disclosure

of which would constitute a clearly unwarranted invasion of

personal privacy. See United States Department of State v.

Washington Post Co., 456 U.S. 595, 598 (1982). The U.S. Supreme

Court in Washington Post Co. held that the term \"similar files\"

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would be interpreted broadly to encompass any information \"which

applies to a particular individual\" regardless of the label of

the file in which the information is contained. 456 U.S. at

601-602. Information contained in personnel, medical or similar

files may be withheld if its disclosure would violate the

individual\'s personal privacy. This determination requires a

balancing of the public interest in disclosure of the

information, if any, against the invasion of privacy resulting

from disclosure. See Washington Post v. Department of Health and

Human Services, 690 F.2d 252, 258 (D.C. Cir. 1982); Department of

the Air Force v. Rose, 425 U.S. 352, 372-373 (1976).

HUD Form 50059, Owner\'s Certification of Compliance with

HUD\'s Tenant Eligibility and Rent Procedures, contains

considerable personal information about the tenant, including

Social Security number, sex, race, age, place of birth, family

composition, total family net assets and income and type of

financial relief received. Release of this personal information

would constitute a substantial invasion of privacy.

It is well established that an individual\'s name and address

are protectable private information. See American Federation of

Government Employees, AFL-CIO, Local 1923 v. United States

Department of Health and Human Services, 712 F.2d 931, 932 (4th

Cir. 1983); Wine Hobby USA, Inc. v. U.S. Internal Revenue

Service, 502 F.2d 122 (3rd Cir. 1974). Furthermore, given the

highly personal nature of information that can be obtained by a

Social Security number, it has been consistently held by courts

that release of Social Security numbers constitutes a clearly

unwarranted invasion of personal privacy within the meaning of

Exemption 6. See Swisher v. Department of the Air Force, 495 F.

Supp. 337 (W.D. Mo., 1980); E.I. duPont de Nemours and Co., v.

Finklea, 442 F. Supp. 321 (S.D. W.Va. 1977). See also, Rural

Housing Alliance v. Department of Agriculture, 498 F.2d 73, 77

(D.C. Cir. 1974) which pertains to files containing \"information

regarding marital status, legitimacy of children, medical

condition, welfare payments, etc.\" determined as \"similar files\"

within the meaning of Exemption 6.

It is my determination under the balancing test that the

above described personal privacy information should be withheld.

Moreover, I do not find an overriding public interest for

disclosure of the tenants\' personal information. See United

States Department of Justice v. Reporters Committee for Freedom

of the Press, 489 U.S. 749 (1989) (hereinafter \"Reporters

Committee\"), which establishes a framework for analyzing the

public interest under Exemption 6. According to that framework,

only the furtherance of FOIA\'s core purpose of informing citizens

about \"what their government is up to\" can warrant the release of

information over and above protection of individual\'s privacy

interests. Reporters Committee, 489 U.S. at 772-772.

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Accordingly, I have determined to affirm the withholding of the

information under Exemption 6 in order to protect individuals\'

right to personal privacy. I have also determined, pursuant to

24 C.F.R. 15.21, that the public interest in assuring the

personal privacy of individuals militates against release of the

information.

Please be advised that you have a right to judicial review

of this determination under 5 U.S.C. 552(a)(4).

Very sincerely yours,

C.H. Albright, Jr.

Principal Deputy General Counsel

cc: Peter Campanella, 3G

Yvette Magruder