Requester, Anonymous v. Department of Transitional Assistance (SPR 20260281)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 11, 2026 SPR26/0281 Lauren E. Picone, Esq. General Counsel Department of Transitional Assistance 600 Washington Street, 5th Floor Boston, MA 02111 Dear Attorney Picone: I have received the petition of an anonymous requestor (requestor) appealing the response of the Department of Transitional Assistance (Department/DTA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 13, 2025, the requestor sought the following records: Please provide all emails, drafts, approvals, internal communications, and records regarding the creation, review, and posting of the SNAP message referring to “President Trump,” “Congressional Republicans,” and the “One Big Beautiful Bill.” Please also identify the employee(s) who authored or approved this message. Previous Appeal This request was the subject of a previous appeal. See SPR25/3675 Determination of the Supervisor of Records (December 30, 2025). In my December 30th determination, I found that the Department did not meet its burden in responding to the request, and to the extent possible, must provide records on a rolling basis. Subsequently, the Department responded on January 23, and January 28, 2026. Unsatisfied with the Department’s responses, the requestor petitioned this office, and this appeal, SPR26/0281, was opened as a result. Subsequent to the opening of this appeal, the Department provided a further response to the requestor and this office on February 11, 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 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

Lauren E. Picone, Esq. SPR26/0281 Page 2 February 11, 2026 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. The Department’s January 23rd and February 11th Responses In its January 23, 2026 response, the Department provided numerous responsive records via a hyperlink, and stated that it is withholding others pursuant to the attorney-client privilege. In an email to the requestor on the same day, the Department provided responsive records as attachments. In its February 11, 2026 response, the Department provided a privilege log and further elaborated on its claims for withholding records pursuant to the attorney-client privilege. Current Appeal In the appeal petition, the requestor contends that “no records were produced – the link is inaccessible.” The requestor further contends that “here, the withheld records concern the creation and dissemination of a public SNAP message with political references. DTA has not demonstrated that all such communications were legal advice rather than policy or administrative discussions.” In an email to this office on January 29, 2026, the requestor clarified the basis of the appeal by explaining that “DTA’s correction of the previously inaccessible production link renders that technical access issue moot. However, that partial cure does not resolve the remaining grounds raised in the appeal...” 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

Lauren E. Picone, Esq. SPR26/0281 Page 3 February 11, 2026 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 23rd response, the Department states that “DTA is withholding other responsive records pursuant to the attorney-client privilege. See Suffolk Construction Co., Inc. v. Div. of Capital Asset Management, 449 Mass. 444, 448-52 (2007).” In its February 11th response, the Department provides a privilege log, and further explains the following: DTA withheld records involving discussions where DTA employees sought legal advice on messaging from attorneys in the Governor’s Legal Office (GLO) pursuant to the attorney client privilege. Specifically, DTA has withheld: 18 records responsive to the request. . . . DTA maintains that communications between DTA employees and GLO, concerning legal advice surrounding DTA’s government shutdown related messaging, are protected from public disclosure under the attorney client privilege. See Suffolk Construction Co., Inc. v. Div. of Capital Asset Management, 449 Mass. 444, 448-52 (2007) (finding confidential communications between public officers and employees and governmental entities and their legal counsel, undertaken for the purpose of obtaining legal advice or assistance, are protected under the normal rules of the attorney-client privilege). The Executive Offices and their constituent agencies serve at the behest of and report to the Governor. See G.L. c. 6A, §§ 2 and 4. The Governor’s attorneys provide legal advice to all Executive Offices’ General Counsels in order to promote and execute the Governor’s agenda. Such communications create a direct attorney-client relationship between the Governor’s Legal Office and her Secretariats’ General Counsels and their constituent agencies’ General Counsels. As such, the Governor’s attorneys’ legal advice is necessarily confidential and protected for the Governor and her administration to effectuate the business of the governing. In its February 11th privilege log, the Department lists approximately 18 documents withheld under the attorney-client privilege, and for each document, includes the names of the authors and recipients, and the subject matter, including the grounds upon which the privilege is

Lauren E. Picone, Esq. SPR26/0281 Page 4 February 11, 2026 being claimed. The Department’s privilege log, however, does not include the date of each record. See G. L. c. 66, § 10A(a). Further, although the Department has explained that the communications were made during the course of the clients’ search for legal advice, and that the communications were made in confidence, the Department has not confirmed that the privilege as to the communications has not been waived, as required by Suffolk. See Suffolk, 449 Mass. at 450 n.9. The Department must clarify these matters. Conclusion Accordingly, the Department 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 Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Anonymous Requestor