Handwritten notes in HUD files subject to disclosure

SECOND CIRCUIT–Handwritten notes that federal agency employees kept concerning the possible abuse of homeless persons by a New York City organization are agency records subject to the federal Freedom of Information Act, the U.S. Court of Appeals in New York ruled in late January.

The federal District Court in Manhattan had held in late 1997 that some notes on the matter in the files of Department of Housing and Urban Development employees were merely personal, not subject to the FOI Act, because they had been seen only by the notetakers and had not been used or seen by anyone else in the agency.

However, the appeals court said that, if the need arose, the agency would use these notes to evaluate the credibility of sources who spoke with agency personnel. If notes were maintained for agency use, they were agency records, it said.

In 1995 after several newspapers published reports that employees of the Grand Central Partnership, Inc., were abusive and sometimes violent in removing homeless persons from public spaces near Grand Central Station, HUD temporarily barred GCP’s participation in HUD programs and then announced it would investigate the allegations.

GCP had used a volunteer outreach team to steer homeless persons from mid-town Manhattan to social services programs. Many of the workers were themselves homeless or recently homeless.

In 1996, the partnership filed an FOI request for records HUD had gathered on it. The agency released some of the documents, determined that some were not agency records and denied access to others under the deliberative process and law enforcement exemptions. After an unsuccessful appeal, the partnership sued HUD for the records in late 1996 in federal District Court in Manhattan.

GCP appealed denials allowed by the trial court to the U.S. Court of Appeals in New York City.

Although the appeals panel allowed HUD to continue to withhold several documents, it ordered disclosed information from the letter of a New York City Council member discussing public hearings on the allegations of abuse which HUD claimed was protected under Exemption 5 as agency deliberations. The panel said that the agency can protect only its own information under this exemption.

The panel rejected the agency’s use of the law enforcement exemption (Exemption 7c) protecting privacy in records because individuals could not be identified. It also rejected use of the law enforcement exemption to protect confidential sources (Exemption 7d) because the identity of HUD’s sources could not be established. (Grand Central Partnership v. Cuomo; Plaintiff’s Counsel: Paul Fishman, New York City)