On appeal from Superior Court of New Jersey, Law Division, Ocean County, whose opinion is reported at ___ N.J. Super. ____ (Law Div. 1996).
Approved for Publication July 1, 1996. As Corrected July 15, 1996.
Before Judges Havey, Conley and Page. The opinion of the court was delivered by Havey, P.j.a.d.
The opinion of the court was delivered by: Havey
The opinion of the court was delivered by HAVEY, P.J.A.D.
In this action in lieu of prerogative writs, defendants appeal from a final judgment ordering defendants Township of Lakewood, Lakewood Housing Authority, Lakewood Township Rental Assistance Program, and Lakewood Tenants Organization, Inc., to supply plaintiff with copies of all Housing Assistance Contracts (HACs) between Lakewood's Section 8 landlords and the defendant public housing authorities, or alternatively, to provide a list of the landlords, the addresses of their properties and the federal subsidy received for each property. *fn1 With regard to the HACs, the judgment requires the redaction of "all information pertaining to the tenants or the tenants' financial matters[.]" The defendant public housing agencies manage Lakewood's Section 8 program, a federally subsidized venture administered by the United States Department of Housing and Urban Development. It is undisputed that the local authorities maintain the HACs on file, as well as a list of the participating landlords, properties and the rent subsidies distributed under the Section 8 program.
Plaintiff demanded disclosure of the HACs or select information contained therein under New Jersey's Right to Know Law, N.J.S.A. 47:1A-1 to -4, and the common law. In a comprehensive reported opinion, see Lakewood Residents Ass'n v. Township of Lakewood, ___ N.J. Super. ___ (Law Div. 1996), Judge Serpentelli determined that these documents were subject to disclosure under the Right to Know Law, provided that specific information pertaining to the identity of the tenants and the "tenants' financial matters" was redacted. Id. at ___ (slip op. at 18). He rejected defendants' argument that pertinent federal statutes and attendant regulations precluded disclosure. Id. at ___ (slip op. at 13).
The Judge first reasoned that the exemptions under the Freedom of Information Act (FOIA), 5 U.S.C.A. § 552, and the exceptions to the Privacy Act of 1974 (Privacy Act), 5 U.S.C.A. § 552a, affording confidentiality were inapplicable because defendants are not considered "federal agencies" under those statutes, see 5 U.S.C.A. § 551(1), § 552(e) and § 552a(a)(1); St. Michael's Convalescent Hosp. v. California, 643 F.2d 1369, 1373-74 (9th Cir. 1981); Lakewood Residents Ass'n, (supra) , ___ N.J. Super. at ___ (slip op. at 6-10). Alternatively, the Judge concluded that even if defendants were deemed "agencies" subject to the federal statutes, the pertinent exemptions and exceptions under those federal laws were inapplicable to plaintiff's demand for disclosure of the HACs. Id. at ___ (slip op. at 13). Specifically, he rejected defendants' argument that 5 U.S.C.A. § 552(b)(4) of FOIA governed. Ibid. Section 552(b)4 exempts from FOIA "trade secrets and commercial or financial information obtained from a person and privileged or confidential." Based on the legislative history of the exemption and the federal courts' narrow application of it, Judge Serpentelli reasoned that the exemption was "intended to deal with documentary matters wholly unrelated to the HACs involved here." Id. at ___ (slip op. at 10).
Finally, the Judge rejected defendants' argument that the HACs and data fell within the exception to "public records" under New Jersey's Right to Know Law, which protects documents deemed confidential pursuant to "any Federal law, regulation or order." N.J.S.A. 47:1A-2. Defendants argued that two federal regulations, 24 C.F.R. § 750.20 (1995) and 24 C.F.R. § 760.20(a) (1995), preclude disclosure of the HACs. Section 750.20 provides:
The collection, maintenance, use, and dissemination of [Social Security numbers] and [Employer Identification numbers] obtained pursuant to this part, and of any information derived therefrom, must be conducted, to the extent applicable, in compliance with the Privacy Act (5 U.S.C. 552a) and all other provisions of Federal, State, and local law.
The collection, maintenance, use, and dissemination of employee income information and wage and claim information under this part shall be conducted, to the extent applicable, in compliance with the Privacy Act (5 U.S.C. 552a) and all other provisions of Federal, State, and local law.
The Judge rejected defendants' argument, concluding:
The difficulty with the defendants' argument is that it urges the court to give an overly expansive reading to language which is very specific. It is evident that § 750.20 is intended (as are many other federal regulations) to protect unwarranted disclosure of social security numbers or employer identification numbers. The potential for abuse of such information is well known. However, the release of the HACs with the social security number redacted by court order, will not in any way violate the regulation or subject the [Public Housing Authorities] to the feared penalties. The same can be said with respect to § 760.20. Even assuming it has any relevance to this case given its applicability to "employee" income, wage and claim information, it is not clear how that data would be pertinent to the HACs contents. The ...