Andrew Horowitz v. Waltham, City of - Police Department (SPR 20253574)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 17, 2025 SPR25/3574 Captain Jeffrey M. Rodley Records Division Waltham Police Department 155 Lexington Street Waltham, MA 02452 Dear Captain Rodley: I have received the petition of Andrew Horowitz appealing the response of the Waltham Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 24, 2025, Mr. Horowitz requested “all records held by your agency related to my specific vehicle as well as all records related to Flock Safety automated license plate reader (ALPR) systems operated by your agency.” Specifically, Mr. Horowitz requested “all public records associated with this vehicle, including but not limited to:” the following: [1] Traffic camera, roadway camera, Flock Safety or other ALPR system detections involving [an identified] vehicle. [2] CCTV footage or still images captured by any municipal or law enforcement camera systems. [3] Any citations, warnings, or enforcement actions involving the vehicle. [4] Parking enforcement records, including tickets, warnings, or complaints. [5] Police or public safety incident reports mentioning or involving the vehicle. [6] Towing, impound, or storage records. [7] Any 311 or citizen reports involving the vehicle. [8] Any internal correspondence, emails, or documents referencing the vehicle. Please also provide the following records for all Flock Safety ALPR and/or other ALPR systems (aka ELSAG, etc.) your agency has ever operated: [1] All Flock Safety ALPR detection data collected from the date your agency first began using Flock Safety ALPR and/or any other ALPR technology through the present, including but not limited to: 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

Capt. Jeffrey M. Rodley SPR25/3574 Page 2 December 17, 2025 • License plate detections • Timestamps • Geo-coordinates or camera location identifiers • Vehicle make, model, color, or other metadata assigned by the system • Any “Hot List” or alert hits associated with these detections [2] A complete list of all Flock camera locations, including GPS coordinates or the nearest street address, for all cameras currently or previously operated by your agency. [3] All contracts, MOUs, or agreements between your agency and Flock Safety, including all data-sharing agreements with external agencies. [4] The agency’s ALPR policy, including all retention schedules, access controls, audit procedures, data-sharing practices, and any restrictions on use. The Department responded on November 26, 2025, December 2, 2025, and December 3, 2025. Unsatisfied with the Department’s responses, Mr. Horowitz petitioned this office, and this appeal, SPR25/3574, 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 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 Responses In its November 26, 2025 response, the Department stated, “the only entry involving you or your vehicle is a moving violation from January 13, 2024, for which you were issued a written warning. There are no other records associated with you or your vehicle. Attached is the information you requested regarding the FLOCK system.”

Capt. Jeffrey M. Rodley SPR25/3574 Page 3 December 17, 2025 In its December 2, 2025 response regarding Item #1 for “any Automatic License Plate Reader (ALPR) or Flock Safety system data related [an identified vehicle],” the Department stated, “[t]his Department located no responsive records. Our ALPR/Flock system has no scans, alerts, images, or queries associated with the vehicle or license plate you identified. Because no such record exists, the Department is not required to create or compile a record in order to respond to a request.” In its December 3, 2025 response, the Department stated that its November 26, 2025 response regarding “a complete list of all Flock camera locations, including GPS coordinates or the nearest street address, for all cameras currently or previously operated by your agency” had been an “oversite”, and stated “[a]ny records or information that has not been included has been excluded due to exemption (f) under the Massachusetts Public Records Law (M.G.L. c. 66, § 10 and c. 4, § 7(26)).” Current Appeal In his appeal, Mr. Horowitz states, “[the Department’s] responses were (1) internally contradictory, (2) legally insufficient, and (3) facially inconsistent with established precedent concerning Exemption (f).” 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 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. Attorney 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

Capt. Jeffrey M. Rodley SPR25/3574 Page 4 December 17, 2025 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. In its response, the Department stated, “Exemption (f): Massachusetts Public Records Law Exemption (f) protects investigatory materials compiled by law enforcement when releasing them could compromise an investigation, reveal confidential sources, disclose investigatory techniques, or create a risk of harm to individuals involved. This exemption allows police departments to withhold or redact records when disclosure would jeopardize effective law enforcement or endanger public safety.” Although the Department states in its December 3rd response that “disclosure would jeopardize effective law enforcement or endanger public safety,” it remains unclear how the records, in their entirety, can be withheld under Exemption (f). It is additionally unclear from the Department’s response whether the records contain confidential investigative techniques that would be prejudicial to any ongoing investigation if disclosed. The Department also did not demonstrate how disclosure of any segregable portion of the responsive records “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). Reinstein, 378 Mass. 289-290 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable

Capt. Jeffrey M. Rodley SPR25/3574 Page 5 December 17, 2025 portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify these matters. In addition, the Department must identify the records in its possession that are responsive to the request. The Department merely states in its response that “[a]ny records or information that has not been included has been excluded due to exemption (f).” The Department is advised that to deny access to a record or portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Consequently, the Department must identify the records in its possession that it withheld under Exemption (f). Conclusion Accordingly, the Department is ordered to provide Mr. Horowitz with a response to the request, provided in a manner consistent with this order, the Public Records Law, and it’s 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. Mr. Horowitz may 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: Andrew Horowtiz