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Lakewood Residents Association, Inc. v. Township of Lakewood

October 28, 1994


The opinion of the court was delivered by: Serpentelli, A.J.S.C.

This case requires the court to examine a novel question concerning the interrelationship of the New Jersey Right to Know Law (N.J.S.A. 47:1A-1 et seq.), the federal Freedom of Information Act and Privacy Act, as well as other federal regulations relating to disclosure under our Right to Know Law.

In this Action In Lieu Of Prerogative Writs, the plaintiff, Lakewood Residents Association (LRA), seeks to compel the defendants Township of Lakewood, Lakewood Housing Authority (LHA), Lakewood Tenants Organization (LTO) and Lakewood Township Rental Assistance Program (LTRAP) to release to the plaintiff either the Housing Assistance Payments Contracts (HAC) which the defendant housing agencies maintain on file, or a list of landlords, properties and rent subsidies paid pursuant to the Section 8 Housing Assistance Programs (hereinafter Section 8 program), *fn1 which information is contained within those contracts. LHA is a municipal agency created by ordinance pursuant to N.J.S.A. 40A:12A-17. LTO is a private non-profit corporation of New Jersey which has been authorized by the Township of Lakewood to operate the Lakewood Township Rental Assistance Program. *fn2

The Section 8 program is a federally subsidized venture administered by the United States Department of Housing and Urban Development (HUD). It is funded entirely through federal tax dollars and administered by public housing agencies (PHA) pursuant to federal guidelines. A "public housing agency" as defined by 24 C.F.R. Ch. VIII, § 882.102, may enter into an Annual Contributions Contract (ACC) with HUD. Under the ACC, HUD agrees to provide financial assistance to the PHA to make housing assistance payments on behalf of eligible families.

The PHA has the obligation to select housing units which meet housing quality standards (24 C.F.R. Ch. VIII, § 882.109) and fair market rent limitations (24 C.F.R. Ch. VIII, § 888.101-.115). If the unit and rental rate are acceptable, the PHA executes a HAC with the owner. While Section 8 regulations vary as between Rental Certificates and Rental Vouchers, generally speaking the tenant pays approximately thirty percent of the family's adjusted monthly income to the landlord and the PHA pays the balance of the rent. The subsidy is determined by the PHA in accordance with HUD regulations.

The purpose of the Section 8 program is to enable a PHA to offer lower income families the opportunity to obtain housing in non-impacted areas (non-impacted areas are those areas with a substantially lower proportion of lower-income residents than the surrounding area), thus avoiding concentration of assisted housing in confined areas. The defendant PHAs argue that this approach also gives the tenants a freedom to exercise a real housing choice as well as anonymity from the "stigma" of receiving rental assistance.

In 1991, LRA requested the defendants and the New Jersey Department of Community Affairs (DCA) Section 8 program in Lakewood to provide a list of landlords, the street addresses for respective properties rented under the program and the monthly supplemental amount paid to the landlords. DCA complied with the request concerning the program it administers. LHA and LTRAP refused to provide the data and the Township apparently acquiesced in the refusal.

After two years of failed negotiations between LRA, LHA and LTRAP, the plaintiff, on June 10, 1994, brought an Order to Show Cause to require the release of the requested documents under N.J.S.A. 47:1A-1, the "Right to Know Law," or pursuant to the common law principles concerning the right to obtain such documents.

Both LHA and LTRAP stress that the housing contracts are maintained pursuant to federal law and regulations, not state law. LTRAP contends that it is acting as an agent of the federal government, providing local administration of a federal rent subsidy program, and thus it is prohibited from releasing any Section 8 program information pursuant to the Federal Privacy Act, 5 U.S.C. § 552a and the regulations implementing the statute, specifically 24 C.F.R., Ch. VII, §§ 750.20 and 760.20. LHA does not claim to be a federal agency but asserts that the New Jersey Right to Know Law incorporates the protection of the federal law and regulations so as to preclude disclosure. Plaintiff counters that, in addition to its right to disclosure under state law, LRA is entitled to obtain the requested data under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. This opinion addresses plaintiff's asserted right to the disclosure under federal and state law.

The Freedom of Information Act requires federal agencies to release requested information contained in agency files. It imposes a tripartite scheme of disclosure. First, each federal agency must publish in the Federal Register the agency's organization, statements of the agency's function, substantive rules and related information. 5 U.S.C. § 552(a)(1). Second, each federal agency must make available final agency statements and orders, opinions and interpretations when not published in the Federal Register, and administrative staff manuals and staff instructions affecting the public. Id. at § 552(a)(2). Finally, all other agency records must be produced upon request, unless the record is shielded from disclosure by one of the nine exemptions contained in the Act. Id. at § 552(b). The statute creates a presumption that all records of governmental agencies must be accessible to the public. The burden is on the agency withholding a document to establish that it should not be released. The objective of the statute is to require the fullest possible disclosure of information to the public.

On the other hand, the Privacy Act, 5 U.S.C. § 552a, generally prevents a federal agency's disclosure of information pertaining to an individual unless the individual has made a request for it or has given consent to its release in writing, or unless disclosure is permitted under one or more of the eleven exceptions to that Act. Id. at § 552a(b)(1)-(11). Section 552a(t) of the Privacy Act also makes clear that it is to be construed separately and independently from FOIA. It states:

(t) Effect of other laws--(1) No agency shall rely on any exemption contained in section 552 [Freedom of Information Act] of this title to withhold from an individual any record which is otherwise accessible to such individual under the provisions of this section.

[Privacy Act]

(2) No agency shall rely on any exemption in this section [Privacy Act] to withhold from an individual any record which is otherwise accessible to such individual under the provisions of section 552 [Freedom of Information Act] of this title.

[1][2][3] Thus, in order to withhold information, the agency must demonstrate that the document falls within a FOIA exemption and does not fall within an exception to the Privacy Act. If a FOIA exemption protects the documents, but the Privacy Act exception permits the disclosure, the documents must be released under the Privacy Act. If the Privacy Act precludes access, but FOIA permits disclosure, the documents must be released under FOIA. Shapiro v. Drug Enforcement Admin., 762 F.2d 611 (7th Cir.1985); Susman, Thomas M., The Privacy Act and the Freedom of Information Act: conflict and resolution, 21 John Marshall L.R. 703 (1988).

[4][5][6][7] Both FOIA and the Privacy Act are also intended to apply only to "agencies" as that term is defined by 5 U.S.C. §§ 551(1) and 552(f). Under these definitions, "agency" generally encompasses only federal entities. Although state and local governmental units and private grantees may be regulated and completely funded by the federal government, it does not necessarily follow that these bodies fall within the definition of "agency." "Extensive, detailed and virtually day-to-day supervision by the federal government is needed before agency status could be said to attach." St. Michael's Convalescent Hospital v. State of California, 643 F.2d 1369, 1374 (9th Cir.1981); Forsham v. Harris, 445 U.S. 169, 180, 100 S.Ct. 977, 984, 63 L.Ed.2d 293, 304 (1980).

[8] As noted earlier, LTRAP contends that it is an agent of the federal government, administering a federally funded local public housing assistance program. Thus, it asserts the requested information is subject to the Privacy Act and not the New Jersey Right to Know Law. *fn3 Plaintiff argues that the defendants *fn4 are local entities and are thus subject to both statutory and common law provisions governing document disclosure. Alternatively, plaintiff maintains that should federal law apply, the documents are still obtainable under FOIA. Therefore, the threshold ...

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