Legal Opinion: GMP-0025

Index: 7.360, 7.363, 7.630

Subject: FOIA/Privacy Act: Mortgagors w/Forbearance Agreements

November 26, 1991

MEMORANDUM TO: Bruce S. Albright, Assistant General Counsel,

Home Mortgage Division, GHH

FROM: Carole W. Wilson, Associate General Counsel for

Equal Opportunity and Administrative Law, GM

SUBJECT: Applicability of Exemption 6 of the Freedom of

Information Act and the Privacy Act to the Names of

Mortgagors With Forbearance Agreements

This is in response to your memorandum dated October 31,

1991 pertaining to a portion of a request from Senator

Quentin Burdick. Senator Burdick is requesting a legal opinion

as to whether his constituent can obtain the names of mortgagors

with forbearance agreements for the purpose of contacting them to

discover the details of these agreements.

In my opinion the names of the mortgagors are protected from

public disclosure under Exemption 6 of the Freedom of Information

Act (FOIA) and the Privacy Act.

Exemption 6 of the FOIA, 5 U.S.C. 552(b)(6), exempts from

disclosure information which (1) is contained in personnel,

medical and similar files1 and (2) would constitute a clearly

unwarranted invasion of personal privacy. The degree to which

disclosure would constitute a \"clearly unwarranted\" invasion of

personal privacy is determined by balancing the public interest

in the release of the information against the privacy interests

of the individual.

Disclosure of the information requested here, i.e., the

names of mortgagors with forbearance agreements, would reveal

personal information concerning the financial situation of these

individuals, which could be highly embarrassing. The agreements

1The U.S. Supreme Court in United States Department of State

v\. Washington Post Co. has held that the term \"similar files\"

should 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. 595,

601-602 (1982).

2

themselves are not available to the public and are contained in a

Privacy Act system of records.

I do not believe the disclosure of the names of mortgagors

with forbearance agreements is a sufficient \"public interest\"

under United States Department of Justice v. Reporters Committee

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

\"Reporters Committee\") to warrant balancing against the personal

privacy interests of the mortgagors.

Reporters Committee establishes a new 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 772-773. The public

interest that the FOIA was enacted to serve concerns disclosure

of records that shed light on the activities of a \"Government

agency or official,\" showing something \"about an agency\'s own

conduct.\" Id. at 773. In this instance, release of the names of

mortgagors would tell little, if anything, about HUD\'s

performance of its statutory duties in administering the single

family mortgage insurance program.

A second reason for nondisclosure of the information

requested pertains to compliance with the Privacy Act. The

information requested by Senator Burdick\'s constituent is

contained in HUD\'s Privacy Act System of Records (HUD/Dept. 32-

Delinquent/Default/Assigned/Temporary Mortgage Assistance

Payments (TMAP) Program, Federal Register Privacy Act Issuance:

1989 Compilation). Therefore, the records are also withholdable

under 5 U.S.C. 552a(b) and the Department\'s regulations at

24 C.F.R. 16.1(e)(3), which safeguard the release of privacy

information, without the express written consent of the person(s)

involved.

For these reasons, it is our opinion that the names of

mortgagors with forbearance agreements, is not releasable under

the FOIA. If you have further questions regarding this matter,

please contact Jeff Rock or Sam Hutchinson, Assistant General

Counsel for Personnel and Ethics Law at 708-2088.