Legal Opinion: GMP-0126

Index: 7.350

Subject: FOIA Appeal: Incorporation by Reference

October 29, 1992

John J. Knapp, Esq.

Powell, Goldstein, Frazer & Murphy

1001 Pennsylvania Avenue, N.W. (Sixth Floor)

Washington, D.C. 20004

Dear Mr. Knapp:

This is in response to your Freedom of Information Act

(FOIA) appeal dated August 6, 1992. Your client, Broad-Elm

Realty Co., owner of a multifamily rental project covered by a

mortgage insured under Section 223(f) of the National Housing

Act, requested all analyses and work papers involved in HUD\'s

consideration of a rent increase request for Skyview Towers in

Woodside, New York, (Proj. No. 012-11093). You appeal the denial

by Michael Carlson, Freedom of Information Act Officer, New York

Regional Office, dated July 10, 1992. Mr. Carlson withheld the

\"Rent Computation Worksheet\" (HUD Handbook 4350 Chng-49, Chapt.

7, Appendix 5, pp. 4-7) and related internal work papers under

Exemption 5 of the FOIA.

I have determined to affirm the initial denial.

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

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

memorandums or letters which would not be available by law to a

party other than an agency in litigation with the agency.\" 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 (1975).

The request for a rent increase for Skyview Towers was

denied by David Buchwalter, Chief, Loan Management Branch, in a

letter to Broad-Elm Realty Co., dated February 6, 1992.

Mr. Buchwalter\'s determination stated that \"evaluation of project

income and expenses has not demonstrated an increase to be

warranted.\" We are advised that the project\'s allowed projected

expenses for 1992 in relation to its project income did not

justify a rental increase. The New York Regional Office would be

willing to meet with you to discuss the reasons for the rejection

of Skyview Towers\' rent increase application. You should contact

Mr. Buchwalter if you desire such a meeting.

The withheld documents were properly exempted from

disclosure under Exemption 5. They are not final opinions, but

represent advice and evaluations for the Chief of the Loan

Management Branch in his decision-making process to consider a

rent increase for Skyview Towers. See Orion Research Inc. v.

Environmental Protection Agency, 615 F.2d 551 (1st Cir. 1980)

withholding under Exemption 5 intra-agency memoranda written by

the monitoring project officer to the contracting officer in

connection with evaluating proposals submitted for a government

contract. See also Professional Review Organization of Florida,

Inc. v. U.S. Department of Health and Human Services, 607

F. Supp. 423 (D.D.C. 1985).

You submit that, since the February 6, 1992 letter did not

disclose the basis for Mr. Buchwalter\'s determination to deny the

rent increase, he seemingly adopted his staff\'s calculations.

You believe that, under these circumstances, these calculations

lose their predecisional character and cannot be withheld under

Exemption 5.

Mr. Buchwalter\'s determination did not adopt or

incorporate by reference the Rental Computation Worksheet or

other internal work papers. Two cases you assert in support of

such an adoption or incorporation by reference are inapposite.

In American Society of Pension Actuaries v. IRS, 746 F. Supp. 188

(D.D.C. 1990) the court considered that interpretive memoranda

from agency attorneys, which explained agency policy during the

course of an audit, were not protected by the deliberative

process privilege of Exemption 5. Id. at 869. This is not the

case here. The internal calculations sought are plainly

predecisional and deliberative.

In Coastal States Gas Corp. v. Dept. of Energy, 617 F.2d

854 (D.C. Cir. 1980), the court found that, by inclusion of an

IRS budget estimate in the Treasury Department\'s published

explanation of the President\'s Budget, the Government had adopted

the analytic computations for this estimate. Id. at 191, 192.

Here, there were no specific figures or calculations expressed in

Mr. Buchwalter\'s determination, but rather a concise, declaratory

statement of his decision. His decision stands on its own and

the Department is not required to provide further supplement or

support for its decisions. See, Mead Data Central v. U.S. Dept.

of Air Force, 575 F.2d 932 (D.C. Cir. 1978), agencies cannot be

required to explain their decisions for the benefit of FOIA

litigants or open their files in order for a litigant to obtain

an explanation for the decision.

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

that the public interest in protecting predecisional agency

deliberations militates against release of the withheld

information.

The FOIA under 5 U.S.C. Section 552(a)(4)(B) provides for

judicial review of this determination.

Very sincerely yours,

George L. Weidenfeller

Deputy General Counsel (Operations)

cc: John Dellera, 2G

Michael Carlson