Reilly, Judith v. Executive Office of Housing and Livable Communities (SPR 20261026)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 3, 2026 SPR26/1026 Adrian Walleigh, Esq. Counsel and Records Access Officer Executive Office of Housing and Livable Communities 110 Cambridge Street, Suite 300 Boston, MA 02114 Dear Attorney Walleigh: I have received the petition of Judith Reilly appealing the response of the Executive Office of Housing and 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 February 27, 2026, Ms. Reilly requested: . . . a copy of this email (“Constant Contact”) from October 2025, as described by [an identified individual] of EOHLC to [an identified individual] at Salem HA in an earlier email in October 2025: “I wanted to let you know that next week EOHLC is going to send out a constant contact with a reminder to LHAs about cyber security. It will discuss a million dollar fraud at a CA LHA and describe how a similar attack hit a mass LHA last month. No specific LHA is identified and it discusses how that LHAs quick action allowed them to recover the lion’s share of the stolen funds. I just wanted to let you know before it goes out. I think it is very important that LHAs know how dangerous these crime-rings are.” The Office responded on March 20, 2026. Unsatisfied with the response, Ms. Reilly petitioned this office and this appeal, SPR26/1026, was opened as a result. 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 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. SPR26/1026 Page 2 April 3, 2026 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. See 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 Office’s March 20th Response In its March 20, 2026 response, the Office provided responsive records in redacted form, citing Exemptions (f) and (n) of the Public Records Law, as well as the common law attorney- client privilege and work product doctrine. Current Appeal In her March 22, 2026 petition to this office, Ms. Reilly contends: . . . EOHLC has redacted the email addresses of the addresses and persons copied, as well as the dates of the emails. EOHLC has redacted other information as well. I object to all the redactions and appeal to the Supervisor of Records for all the reasons I previously cited in connection with SPR26/0712. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential

Adrian Walleigh, Esq. SPR26/1026 Page 3 April 3, 2026 investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. Under Exemption (f), the Office states, “[t]his matter is still under investigation by authorities . . . . As the incident here is not the first of its kind and the investigation is still underway by law enforcement officials as far as HLC is aware, we have redacted portions of the records pursuant to M.G.L. c. 4, § 7, cl. 26(f).”

Adrian Walleigh, Esq. SPR26/1026 Page 4 April 3, 2026 Although the Office states that the redacted records pertain to an ongoing investigation, it is unclear how disclosure of the redacted information would disclose confidential investigative techniques, procedures or sources of information. Further, the Office has not demonstrated how disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Office must clarify these matters. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA at 290.

Adrian Walleigh, Esq. SPR26/1026 Page 5 April 3, 2026 Under Exemption (n), the Office states, “. . . this matter is still under investigation by law enforcement. Further, it is not the first cyber-attack on a Local Housing Authority. As such, redactions were made pursuant to this exemption due to the ongoing potential cyber security threat still in existence.” Based on the Office’s response, it is unclear how the responsive records resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, it is not clear how the records resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the records are the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the responsive records bear minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse correlation” between two prongs of Exemption (n) inquiry). Further, the Office did not provide factual heft to support the redactions of the responsive records pursuant to Exemption (n). Specifically, the Office has not sufficiently explained how disclosure of the redacted portions is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Office must clarify these matters. 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, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapa & 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 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 ground upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its March 20th response, the Office merely cited “the attorney-client privilege, work product doctrine, and common interest doctrine[,]” without providing any further explanation. Based on the Office’s response, I find the Office has not satisfied the requirements articulated in Suffolk. Specifically, the Office must clarify how the redacted information constitutes a communication between the Office and its attorney in the attorney’s capacity as such. The Office must also clarify whether any such communication was made in confidence, and whether the

Adrian Walleigh, Esq. SPR26/1026 Page 6 April 3, 2026 attorney-client privilege has been waived. The Office must also provide a privilege log which includes the names of the author and recipients, the date, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed, as required by G. L. c. 66, § 10A(a). Conclusion Accordingly, the Office is ordered to provide Ms. Reilly 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. Ms. Reilly may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Judith Reilly