NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
+COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-1211
MASSLANDLORDS, INC.
vs.
EXECUTIVE OFFICE OF HOUSING AND LIVABLE COMMUNITIES. 1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After the defendant denied the plaintiff's public records
request, the plaintiff, a nonprofit corporation whose mission
includes "the promotion of fair housing and the elimination of
discrimination in the administration of rental subsidies" in
Massachusetts, filed a complaint seeking the release of the
records pursuant to G. L. c. 66, § 10A (c). The plaintiff
appeals from a judgment of the Superior Court granting the
defendant's motion to dismiss for failure to state a claim upon
which relief can be granted. Mass. R. Civ. P. 12 (b) (6), 365
Mass. 754 (1974). We affirm.
1 Since the commencement of this lawsuit, the Commonwealth
renamed the original defendant, the Department of Housing and
Community Development, as the Executive Office of Housing and
Livable Communities.
Discussion. "We review the grant of a motion to dismiss de
novo, accepting as true all well-pleaded facts alleged in the
complaint, drawing all reasonable inferences therefrom in the
plaintiff's favor, and determining whether the allegations
plausibly suggest that the plaintiff is entitled to relief." 2
Lanier v. President & Fellows of Harvard College, 490 Mass. 37,
43 (2022). We "do not consider the requester's intent when
ruling on public records requests." Boston Globe Media
Partners, LLC v. Department of Pub. Health, 482 Mass. 427, 447-
448 (2019).
In September 2021, the plaintiff submitted a public records
request to the defendant pursuant to the Public Records Law,
G. L. c. 66 and 66A, seeking the street addresses of all
applicants for certain rental assistance programs, 3 including
applicants whose applications had "timed out." 4 The stated
purpose for the request was "to compare the street addresses of
rejected applicants with the street addresses of tenants who
2 The plaintiff also appealed the denial of a motion for
reconsideration of the judgment of dismissal and the appeals
were consolidated, but the plaintiff makes no argument as to why
the judge erred by denying its motion for reconsideration, so we
do not discuss it or consider the materials the plaintiff
submitted in support of that motion.
3 These programs were Residential Aid for Families in Transition,
Emergency Rental and Mortgage Assistance, and Emergency Rental
Assistance Program.
4 A "timed out" application is one that was denied due to
incompleteness.
2
[were] defendants in summary process proceedings . . . to
determine the extent of any overlap." The defendant denied the
public records request, reasoning that it could not legally
release such personal data under G. L. c. 66A. The plaintiff
twice requested reconsideration, the second time modifying the
request by specifying that disclosure would serve a public
interest because the records were necessary to identify "the
extent to which the [defendant's rental assistance application]
process ha[d] a disparate impact on applicants of color." When
the defendant declined to reconsider, the plaintiff filed this
case.
Certain data are exempt from the Public Records Law's
public access requirement, including "materials or data relating
to a specifically named individual, the disclosure of which may
constitute an unwarranted invasion of personal privacy." G. L.
c. 4, § 7, Twenty-sixth (c). "If there is a privacy interest
[in the requested records], then '[e]xemption (c) requires a
balancing test: where the public interest in obtaining the
requested information substantially outweighs the seriousness of
any invasion of privacy, the private interest in preventing
disclosure must yield'" (citation omitted). Boston Globe Media
Partners, LLC, 482 Mass. at 439.
The plaintiff concedes that there is a privacy interest in
the addresses because they would reveal the identities of people
3
who applied for rental assistance. 5 Even without this
concession, we are satisfied that there is a well-established
privacy interest in information related to applications for
public assistance. See Torres v. Attorney Gen., 391 Mass. 1, 8
(1984); Georgiou v. Commissioner of the Dep't of Indus. Accs.,
67 Mass. App. Ct. 428, 436 (2006). We thus turn to whether the
plaintiff met its burden of showing that the public interest in
disclosure of the data substantially outweighed the privacy
interest. See People for the Ethical Treatment of Animals, Inc.
v. Department of Agric. Resources, 477 Mass. 280, 292 n.14
(2017) (if requested information implicates privacy interest,
burden shifts to requester "to articulate a public interest in
obtaining the information sought").
The plaintiff contends that there is a strong public
interest in determining whether the defendant disproportionately
denied rental assistance to people of color. However,
"[w]here the public interest being asserted is to show that
responsible officials acted negligently or otherwise
improperly in the performance of their duties, the
requester must establish more than a bare suspicion in
order to obtain disclosure. Rather, the requester must
produce evidence that would warrant a belief by a
5 The plaintiff argues that some of the applicants' privacy
interests may have been diminished based on disclaimers in their
application forms. However, even assuming that a record
custodian could waive an individual's privacy interest by means
of a disclaimer, the facts underlying this assertion were not
alleged in the complaint or evidenced in its exhibits. See
Polay v. McMahon, 468 Mass. 379, 387 n.6 (2014).
4
reasonable person that the alleged [g]overnment impropriety
might have occurred" (quotation and citation omitted).
Boston Globe Media Partners, LLC, 482 Mass. at 452. Here,
besides asserting that low-income renters are disproportionately
people of color, the complaint contains no plausible allegation
that the defendant discriminated based on race or that its
practices had a disparate impact based on race. Instead, the
plaintiff asserted only that it "wishe[d] to learn" whether the
defendant's alleged administrative failures in processing rental
assistance applications led to evictions and disproportionately
low acceptance rates for applicants of color. The complaint's
bare assertion that the plaintiff has "reason to believe" the
defendant disproportionately denied rental assistance to
protected groups was not sufficient to warrant a reasonable
belief that discrimination occurred. Similarly, the complaint's
contention that the defendant may have discriminated because it
had "no procedures in place to study possible unlawful
discrimination" is a speculative assertion that the defendant
discriminated against applicants from protected groups. Thus,
the plaintiff's complaint failed to establish a public interest
in the disclosure of tenants' addresses that substantially
outweighed the privacy interests of rental assistance
applicants. The sheer volume of private information implicated
5
by the plaintiff's request supports our conclusion. See id. at
441.
The judgment dismissing the complaint is affirmed.
So ordered.
By the Court (Shin, Brennan &
Hodgens, JJ. 6),
Clerk
Entered: November 30, 2023.
6 The panelists are listed in order of seniority.
6