Citizen, Anonymous v. Executive Office of Housing and Livable Communities (SPR 20260063)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 22, 2026 SPR26/0063 Adrian Walleigh, Esq. Counsel and Records Access Officer Executive Office of Housing & Livable Communities 100 Cambridge Street, Suite 300 Boston, MA 02114 Dear Attorney Walleigh: I have received the petition of Anonymous Citizen (requestor) appealing the response of the Executive Office of Housing & Livable Communities (Office/EOHLC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 19, 2025, the requestor sought the following: 1. Search Efforts Related to SPR25-3453: For EOHLC’s December 19, 2025 response in SPR25-3453, please provide any records reflecting how EOHLC searched for responsive records, including but not limited to: Emails or internal communications sent to or from the custodians listed above requesting confirmation of responsive records. Emails or communications confirming that no responsive records existed. Any documentation identifying custodians contacted, systems searched (e.g., email, SharePoint, Teams, network drives), or search terms used (if documented). If no records documenting the search exist, please state that explicitly. 2. Tenant-File Access Handling (760 CMR 5.13 / M.G.L. c. 66A) For the period January 1, 2022 to present, limited to the custodians listed above, please provide any: Emails, guidance, instructions, templates, checklists, or informal written materials that instruct staff how to: Respond to tenant requests for access to their files; Comply with 760 CMR 5.13; Comply with M.G.L. c. 66A (Fair Information Practices Act). This request includes informal or non-policy guidance, not only formally adopted policies. If none of the listed custodians maintain any written or electronic guidance of any kind regarding tenant-file access, please state that explicitly. 3. Public Records Request Log (AHVP-Related) One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Adrian Walleigh, Esq. SPR26/0063 Page 2 January 22, 2026 Limited to the custodians listed above, please provide any EOHLC-maintained public records request log, spreadsheet, database extract, or tracking document that includes: Public records requests referencing the Alternative Housing Voucher Program (AHVP); Date received and disposition. If EOHLC does not maintain an internal public records request log, please confirm that fact explicitly and identify how EOHLC complies with G.L. c. 66 § 6A(f) in the absence of such a log. 4. Application of Record Retention Schedules to AHVP Limited to the custodians listed above, please provide any records reflecting how statewide record retention schedules are applied to AHVP records, including but not limited to: Internal crosswalks; Program-specific retention guidance; Staff instructions or reference materials; Emails discussing retention of AHVP or AHVP tenant files. If no such materials exist, please state that explicitly. The Office responded on January 6, 2026. Unsatisfied with the Office’s response, the requestor petitioned this office, and this appeal, SPR26/0063, was opened as a result. Subsequent to the opening of this appeal, the Office provided a further response to the requestor and this office on January 9, 2026. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In the appeal petition, and in correspondence submitted subsequent to the appeal, the requestor argues the following:

Adrian Walleigh, Esq. SPR26/0063 Page 3 January 22, 2026 December 19, 2025 follow-up request explicitly sought records documenting EOHLC’s search efforts in SPR25-3453, including custodians contacted and systems searched. . . . EOHLC’s response does not confirm that each listed custodian was consulted, nor does it address whether responsive records may exist outside centralized record systems. . . . For multiple categories—including tenant-file access guidance, public records request logs, and retention-schedule application—the request required explicit confirmation if no records exist. The Office’s January 6th and January 9th Responses In its January 6, 2026 response, the Office indicated that it “intends to provide records responsive to the request but is notifying [the requestor] we are extending the responsive timeline to 15 business days following the initial receipt of the request.” In its January 9, 2026 response, the Office explained that it has no records responsive to Item 2 of the request. The Office explained that it had previously responded to Items 3 and 4 of the request in previous, duplicate request, and further confirmed that it has no records responsive to Items 3 and 4. The Office indicated it is withholding records responsive to Item 1 of the request pursuant to the attorney client privilege. Items 2, 3, & 4: Records in Existence; No Duty to Answer Questions Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). With regard to Items 2, 3, and 4 of the request, in its January 9th response, the Office explains the following: [2] EOHLC has no responsive records to this request. EOHLC is not withholding any responsive records to this request. [3] This request is duplicative of the previous request, which EOHLC responded to on November 21, 2025 and addressed a second time on December 19, 2025. EOHLC reiterates that we have no responsive records. As to the question of “how EOHLC complies with G.L. c. 66 § 6A(f) in the absence of such a log,”

Adrian Walleigh, Esq. SPR26/0063 Page 4 January 22, 2026 pursuant to the Public Records Law, EOHLC is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). [4] EOHLC has no responsive records to this request. EOHLC is not withholding any responsive records to this request. As previously explained in our correspondence of November 21, 2025, and December 19, 2025, EOHLC follows the Massachusetts Statewide Records Retention Schedule[.] Based on the information provided in the Office’s January 9th response, where the Office has confirmed that it does not possess records responsive to Items 2, 3, and 4 of the request, and the Office has no duty to create records or answer questions in response to a request for records, I find that the Office has met its burden in responding to Items 2, 3, and 4 of the request under the Public Records Law. Item 1: Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege, the Supervisor of Records “shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its January 9th response, regarding Item 1, the Office states that “EOHLC is withholding responsive records pursuant to Attorney-Client Privilege. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 449-50 (2007).” In this case, the Office’s response did not contain the specificity required to withhold records pursuant to the attorney-client privilege. Based on the Office’s January 9th response, it is unclear which specific records have been withheld pursuant to the privilege. Specifically, the Office must provide an index comprised of a detailed description of each record withheld or redacted pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is

Adrian Walleigh, Esq. SPR26/0063 Page 5 January 22, 2026 being claimed. See G. L. c. 66, § 10A(a). Further, the Office must clarify whether the communications were made during the course of the client’s search for legal advice from the attorney in his or her capacity as such, whether the communications were made in confidence, and that the privilege as to the communications has not been waived. See Suffolk, 449 Mass. at 450 n.9. Conclusion Accordingly, the Office is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. The requestor may further appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Anonymous Citizen (requestor)