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VIRGINIA
FREEDOM OF INFORMATION
ADVISORY COUNCIL
COMMONWEALTH OF VIRGINIA
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AO-14-04
July
19, 2004
Mr. Brett
Spain
Willcox & Savage
Norfolk, Virginia
The
staff of the Freedom of Information Advisory Council is authorized
to issue advisory opinions. The ensuing staff advisory opinion
is based solely upon the information presented in your email
of April 1, 2004.
Dear
Mr. Spain:
You
have asked a question concerning the exemption for personal
information provided to state and local housing development
authorities under the Virginia Freedom of Information Act
(FOIA).
Specifically,
you indicate that a request was made on January 29, 2004 and
again on March 11, 2004, for a "list of all Section 8
property owners doing business with [the Suffolk Redevelopment
and Housing Authority ("SRHA")] including their
name, mailing or business address, owner ID number, status,
federal number, home phone, business phone, leased units and
sum total payments for the full years (fiscal or calendar)
ending in 2002, 2003, and through the present date."
SRHA made a written response to you on March 29, 2004. It
indicated that it would provide the names, addresses, and
total payments for annual periods concerning participating
Section 8 property owners, but that it was withholding the
other information that you requested, such as owner ID number,
status, federal number, home phone, business phone, and leased
units, pursuant to subdivision 8 of § 2.2-3705.7 of the
Code of Virginia.1 That exemption allows to be
withheld, among other things, personal information...concerning
persons participating in or persons on the waiting list for
federally funded rent-assistance programs.
By way
of background, "Section 8" refers to a housing assistance
voucher program funded by the United States Department of
Housing and Urban Development, and administered locally by
public housing agencies such as SRHA.2 A family participating
in the program is free to chose housing in the private market
where the owner of the property agrees to rent under the voucher
program. A housing subsidy, using federal funds, is paid by
the local housing agency directly to the landlord on behalf
of the participating family. The landlord signs a housing
assistance payment contract with the local housing authority
that runs for the same term as the lease between the landlord
and the tenant. In the facts you present, the request was
for records concerning landlords who have entered into these
contracts with SRHA.
Generally,
subsection A of § 2.2-3704 requires that [e]xcept
as otherwise specifically provided by law, all public records
shall be open to inspection and copying. The policy of
FOIA at subsection B of § 2.2-3700 requires that the
provisions of FOIA be liberally construed to promote an
increased awareness by all persons of governmental activities
and that [a]ny exemption from public access to records
or meetings shall be narrowly construed.
The
exemption in question allows a local housing authority to
withhold personal information about participants in a federally-funded
rent-assistance program. At issue is whether the landlords
who enter into contracts with SRHA under the Section 8 voucher
program are "participants" for purposes of the FOIA
exemption, or whether the exemption only applies to information
provided to SRHA by the tenants receiving the voucher assistance.
For purposes of Section 8 tenant-based assistance, federal
regulations define a participant as a "family that has
been admitted to the [public housing assistance] program and
is currently assisted in the program."3 This definition
refers only to the tenants who use the federal vouchers to
live in privately owned rental housing, and not to the landlords
who accept the vouchers. Therefore, applying this federal
definition and construing the exemption narrowly as is required
by FOIA, the exemption at subdivision 8 of § 2.2-3705.7
does not apply to records relating to landlords who have entered
into contracts with a local housing authority under the federal
Section 8 program. As a result, the landlord records you requested
are subject to the mandatory disclosure requirements of FOIA.
Thank
you for contacting this office. I hope that I have been of
assistance.
Sincerely,
Maria
J.K. Everett
Executive Director
1The
response letter cited subdivision A 33 of § 2.2-3705
of the Code of Virginia. However, effective July 1, 2004,
that subdivision is now located at subsection 8 of §
2.2-3705.7.
2See Section 8 of the United States Housing Act
of 1937 (42 USC 1437f).
324
CFR § 982.4.
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