Masslandlords, Inc. v. Executive Office of Housing and Livable Communities.

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