FOIA Appeal: Title I Home Improvement Loan Files

Legal Opinion: GMP-0031

Index: 7.360

Subject: FOIA Appeal: Title I Home Improvement Loan Files

December 12, 1991

Mr. Jon Hunt

628 Stokes Street, Box 281

Riverside, New Jersey 08075-0281

Dear Mr. Hunt:

This is in response to your Freedom of Information Act

(FOIA) appeal dated April 25, 1991. You appeal the partial

denial by John Petricco, Manager of HUD\'s Albany Office, of your

request for certain documents relating to a HUD insured Title I

loan. By letter of April 2, 1991, Mr. Petricco partially granted

your request for documents relating to a Title I Loan obtained by

William Edwards, Augustus Hunt and Emilee Hunt. Two documents

were withheld pursuant to Exemption 5 of the FOIA, 5 U.S.C.

552 (b)(5), and seven categories of documents were withheld in

part or full under Exemptions 4 and 6, 5 U.S.C. 552(b)(4),(6).

I have determined to affirm in part under Exemptions 5 and 6

and to reverse in part the initial decision.

Exemption 5 of the FOIA 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.\" 5 U.S.C. 552(b)(5). The documents involved here were

intra-agency records and Exemption 5 was properly invoked to

protect the Department\'s predecisional recommendations regarding

collection of the loan.

Exemption 6 protects information in medical, personnel and

similar files. The decision in United States Department of

Justice v. Reporters Committee for Freedom of the Press, 489 U.S.

749 (1989) (hereinafter \"Reporters Committee\") establishes a

framework for analyzing the public interest under Exemption 6 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 772-73.

I have determined under the balancing test of Exemption 6 to

affirm the withholding of documents listed in Items 1, 2, 4, 5,

6, and 7 of Mr. Petricco\'s letter of April 2, 1991. The Title I

collection file contains personal and financial information

relating to individuals\' home improvement loans insured by HUD

pursuant to Title I of the National Housing Act, 12 U.S.C. 1703.

Item No. 3 of Mr. Petricco\'s letter withheld four Rapid

Reply letters under Exemptions 4 and 6. The date of one of these

letters was incorrectly listed as 1-20-90. The correct date is

1-2-90. There was also a fifth Rapid Reply letter dated 4-9-91

which was mistakenly not listed.

I have concluded, with respect to three of the Rapid Reply

letters dated 1-2-90, 4-30-90 and 10-16-90 that, with proper

redaction, a partial release of the information will not subject

the individuals to injury or embarrassment and the borrowers\'

right to privacy in these letters can be maintained. Therefore,

I am reversing the initial denial with respect to these Rapid

Reply letters and releasing copies of these documents with any

private or personal financial information redacted. I am

affirming the withholding of the other Rapid Reply letters and

the redacted personal information from the partially released

letters under Exemption 6.

I can appreciate your interest in determining possible fraud

on the part of one of the co-signers of this Title I loan but

your allegations with respect to fraud and past scandals within

this agency do not bear upon the release or denial of information

contained within our files pursuant to FOIA. It is the nature of

the information that determines whether it is releasable, not the

use to which a particular requester intends to put it. See,

Seawell, Dalton, Hughes & Timms v. Export-Import Bank, Civil No.

84-241, slip op. at 2 (E.D. Va. July 27, 1984). However, please

be advised that any evidence that you may have regarding possible

fraud in this Title I loan should be submitted to the Regional

Office of Inspector General, which will conduct a review and

investigation.

I have also determined pursuant to 24 C.F.R. 15.21 that the

public interest in protecting the deliberative process and

assuring the personal privacy of individuals militates against

release of the withheld information.

Please be advised that you have the right to judicial review

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

Very sincerely yours,

Shelley A. Longmuir

Deputy General Counsel

Enclosure

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