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 e-mail 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.