Gideon Epstein v. Milford, Town of - Police Department (SPR 20253685)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 30, 2025 SPR25/3685 Det. Lt. Kevin O’Loughlin Records Access Officer Milford Police Department 250 Main Street Milford, MA 01757 Dear Det. Lt. O’Loughlin: I have received the petition of Gideon Epstein, of ACLU of Massachusetts, appealing the response of the Milford 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 June 25, 2025, Kade Crockford, of ACLU of Massachusetts, requested “…records pertaining to the use of license plate readers and the Milford Police Department’s use of Flock Safety technology.” Specifically, the request seeks the following records created on or after January 1, 2023: [1] Contracts, agreements, budget documents, and invoices documenting MPD use of Flock Safety technology and any other license plate reader technology; [2] Training materials pertaining to Flock Safety technology, including its cameras and database systems; [3] Flock Organization Audits, documenting all searches of license plate reader data conducted by officials in Milford; [4] Flock Network Audits, documenting all searches of license plate reader data conducted by entities outside Milford; [5] All records of communication mentioning license plate readers or Flock Safety technology, including emails and text messages; and [6] Any MPD policy or procedures describing how license plate reader data is collected, processed, accessed, used, and/or shared. The Department responded on December 10, 2025. Unsatisfied with the Department’s response, Mr. Epstein petitioned this office and this appeal, SPR25/3685, was opened as a result. 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

Det. Lt. Kevin O’Loughlin SPR25/3685 Page 2 December 30, 2025 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 December 10th Response In its December 10, 2025 response, the Department provided multiple responsive records and responded to each item of the request as follows: [1] Contract with Flock Safety is attached. Budget Documents are attached. [2] There are no hard copies of training materials to provide. [3] Attached is the Flock organization audit from November 10, 2025, to December 10, 2025. There is a 30-day retention period in the Flock Safety network and access is not granted to data outside the 30-day retention period. Material pertaining to on-going investigations or prosecutions under G. L. c. 4, S 7(26)(f) have been redacted. [4] The information requested, Flock network audit, falls under the exemption G. L. c. 4, S 7(26)(f) and will not be released. [5] Emails are attached, redactions were made under exemption G. L. c. 4, s 7 (26)(n). The release of deployment strategies, if disclosed, would jeopardize public safety and investigative efforts. There were no text messages mentioning “license plate readers” or “Flock Safety technology.” [6] MPD Flock Safety policy is attached.

Det. Lt. Kevin O’Loughlin SPR25/3685 Page 3 December 30, 2025 Current Appeal In his appeal petition, Mr. Epstein argued against the Department’s invocation of Exemption (f) and claimed that additional responsive training material and audit records remain outstanding. In addition, Mr. Epstein claimed that the Department’s search was inadequate and requested that the “Organization Audit” be provided in a “CSV or Excel file.” It appears Mr. Epstein is not contesting the Department’s redactions under Exemption (n). In a telephone conversation with this office on December 16, 2025, the Department confirmed that it possesses no additional responsive training documents as requested in Item 2, nor does it possess any records regarding audits conducted by entities outside Milford, as requested in Item 4. In a subsequent email to this office and Mr. Epstein on December 22, 2025, an attorney for the Department requested an extension of time until January 9, 2025 to provide a further response to the appeal. No Duty to Create Records Regarding Items 2 and 4 of the request, please be advised that under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Given that the Department has confirmed that it possesses no additional records responsive to these portions of the request, and this office has no authority to compel the Department to create records, I find that this portion of the appeal is resolved. 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

Det. Lt. Kevin O’Loughlin SPR25/3685 Page 4 December 30, 2025 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. at 290 n.18. 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): 1. 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; 2. The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or 3. 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), regarding Item 3 of the request, the Department stated, “[m]aterial pertaining to on-going investigations or prosecutions under G. L. c. 4, S 7(26)(f) have been redacted.” Regarding Item 4, the Department stated, “[t]he information requested, Flock network audit, falls under the exemption G. L. c. 4, S 7(26)(f) and will not be released.”

Det. Lt. Kevin O’Loughlin SPR25/3685 Page 5 December 30, 2025 Although the Department claims that the responsive records pertain to ongoing investigations or prosecutions, the Department has not sufficiently explained how the records may be redacted or withheld. Specifically, it is uncertain from the Department’s response whether the redacted and withheld records contain confidential investigative techniques that would be prejudicial to an ongoing investigation if disclosed. The Department has also not demonstrated how disclosure of any segregable portion of the withheld 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). It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G.L. c. 66, § 10(a). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters. Preferred Format Please be advised, a records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). In this case, where Mr. Epstein seeks to have the “Organization Audit” be provided in a “CSV or Excel file,” the Department must clarify whether it is feasible to provide the responsive record in Mr. Epstein’s preferred format. Additional Records Further, regarding Item 3 of the request, based on the Department’s response and the information provided in the appeal petition disputing the Department’s reference to a “30-day retention period in the Flock Safety network,” it is unclear whether the Department possesses additional audit records regarding audits performed by officials in Milford. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Epstein 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. Mr. Epstein may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Det. Lt. Kevin O’Loughlin SPR25/3685 Page 6 December 30, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Gideon Epstein Kade Crockford Brian W. Murray, Esq.