Handwritten Notes May Be Agency Records

Article excerpt

SECOND CIRCUIT

A Manhattan business improvement district, which was accused of hiring "goon squads" to remove homeless people and therefore denied federal funds, hoped the Freedom of Information Act would help it challenge the loss of those funds. In early April, the U.S. Court of Appeals in New York City (2nd Cir.) said the group is entitled to see many of the records denied it. Government agencies must look more closely at records before denying them, it said.

The Department of Housing and Urban Development may not simply deny access to notes written by its employees; they may well be agency records. Nor may it invoke law enforcement exemptions to protect confidential sources or privacy, unless it shows that release of documents would harm identifiable persons, the court held.

In the 75-block area around New York City's Grand Central Station, a private, self-taxing, quasi-governmental unit called the Grand Central Partnership Business Improvement District (BID) undertakes to improve business conditions through beautification, security and other services.

In 1989 the BID set up the Grand Central Partnership Social Service Corporation to steer homeless persons away from the mid-town Manhattan area and to social service programs. The corporation also set up an outreach program funded by New York City and by businesses in the area. "Volunteers" named by the program dealt with the homeless in the Grand Central neighborhood, receiving a stipend but not wages. Many of these were themselves either homeless or formerly homeless.

In 1994 the U.S. Department of Housing and Urban Development awarded the downtown management organization a grant for providing services to the homeless.

But in May 1995 several newspapers reported abuse and violence by these volunteers in removing homeless persons. The New York City Council held hearings on the allegations and some of the individual volunteers claimed to the council that they themselves had beaten up homeless persons in order to make them move.

Andrew Cuomo, then an Assistant Secretary at HUD, released a report in July 1995 citing use of "goon squads" in the outreach program. The agency refused to deliver monies it had granted and later imposed sanctions, limiting the BID's ability to obtain future federal grants.

The BID denied that it had done anything wrong. It challenged findings of violence and complained that HUD had revoked its monies without any evidence that the business group had engaged in any wrongdoing.

In May 1996, the BID filed a Freedom of Information Act request for records concerning the imposition of sanctions, but HUD did not respond.

Six months later, the BID sued for the records in federal District Court in Manhattan. The agency then provided some records but refused to provide 16 documents responsive to the request.

In November 1997, the District Court threw out the business district's requests for eight of those records, calling them "employee notes" not subject to the FOI Act. The court reviewed the other eight records in chambers to assess the agency's claims that the records were exempt from disclosure.

The judge issued his final opinion in December, ordering that four of the records were to be released with minor redactions protecting internal memoranda (Exemption 5) and allowing HUD to use the personal privacy and confidential source arms of the law enforcement exemption (Exemption 7c and 7d).

The Grand Central Partnership appealed, claiming that the notes taken by employees were agency, not personal, records, and that the agency improperly invoked the exemption for predecisional materials and had misused the law enforcement exemptions.

The BID said notes by HUD employees which the agency called "informal" and created solely for the personal convenience of agency employees were part of the agency's work, and may well be considered subject to the FOI Act. …