Requester, Anonymous v. Waltham, City of - Police Department (SPR 20260211)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 4, 2026 SPR26/0211 Captain Anthony Vazquez Records Access Officer Waltham Police Department 155 Lexington Street Waltham, MA 02452 Dear Captain Vazquez: I have received the petition of Anonymous Requestor (requestor), 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 December 4, 2025, the requestor submitted a public records request for the following: …copies of any and all surveillance video or photographic recordings captured by the Flock surveillance cameras operated by Waltham PD of the vehicle bearing the license plate type MA passenger normal registration “NGS486” and “57V890” during the period November 1, 2025 through December 4, 2025. If the requested footage exists in multiple formats or segments, please provide each segment separately. The Department assigned reference number R000768-120425 to this request. Prior Appeal This request was the subject of a prior appeal. See SPR25/3703 Determination of the Supervisor of Records (December 30, 2025). In my December 30th determination, I found that the Department must identify whether it possesses the requested records and clarify how Exemption (f) of the Public Records Law applies. The Department responded on January 7, 2026. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR26/0211 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

Captain Jeffrey M. Rodley SPR26/0211 Page 2 February 4, 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. Current Appeal In the requestor’s appeal petition, the requestor contends: [The Department] does not seem to fully understand how this ALPR technology provided by Flock works and can be used, or is being disingenuous with their representation. … … Finally, the Waltham Flock Transparency Portal indicates “Data is owned by Waltham MA PD”. Waltham PD’s ALPR policy indicates data and associated media files are “stored by the ALPR system owner for 30 days unless downloaded for investigative purposes”. Both of those statements indicate that Waltham PD owns the data requested. The citation of exemption (f) (prejudice to an ongoing investigation) is inconsistent with the explanation of ALPRs only being used for active investigations. … There is no active investigation with respect to the plates/images/videos I have requested. Querying a database should not be considered creation of a new record. …

Captain Jeffrey M. Rodley SPR26/0211 Page 3 February 4, 2025 The Department’s January 7th Response In its January 7, 2026 response, the Department cited Exemption (f) of the Public Records Law to withhold responsive records. See G. L. c. 4, § 7(26)(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. 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):

Captain Jeffrey M. Rodley SPR26/0211 Page 4 February 4, 2025  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, under Exemption (f), the Department asserts: The requested footage, if it exists in the Department’s records, is inherently tied to investigatory searches in which a specific license plate was entered into the Flock system for monitoring. The very existence of such footage indicates that the vehicle was subject to police investigation. Disclosure of this fact could reveal investigative queries and methods, and could specifically: • Reveal sensitive investigative strategies, techniques, and operational priorities; • Alert potential suspects or targets to the existence and focus of ongoing investigations; • Compromise the use of confidential sources and informants; • Expose surveillance methods, including timing, location, and pattern of monitoring; • Enable targets to flee, destroy or alter evidence, or take other countermeasures; • Undermine witness cooperation and deter individuals from providing critical information. Because disclosure of the existence of such footage is necessarily inextricably linked to ongoing investigatory activities, Exemption (f) applies and protects these records from disclosure. The Department has determined that the responsive records, if they exist, are not reasonably segregable from information protected under Exemption (f). The requested footage, and any derivative data that would result from running non- investigative license plates, is inherently investigatory or would require creation of records that do not otherwise exist.

Captain Jeffrey M. Rodley SPR26/0211 Page 5 February 4, 2025 The Department’s response did not contain the specificity required in a denial of access to public records. Although the Department cites Exemption (f) of the Public Records Law to withhold any responsive records “if they exist,” the Department has not identified whether it possesses responsive records. G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”). Therefore, the Department must identify whether it has responsive records in its possession. Based on the Department’s response, it is 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. 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 portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Records in Existence; Possession, Custody, or Control In its January 7th response, the Department asserted: The Department has reviewed its records in connection with Public Records Request R000768-120425. The records that are responsive to the request, if they exist, consist of surveillance video or photographic recordings captured by Flock cameras operated by the Department that may depict the vehicles bearing Massachusetts registration numbers…. The Department’s Flock camera system is operated strictly for legitimate law enforcement purposes. The Department’s practices regarding Flock camera data are as follows: • The Department only collects and retains data on license plates that are specifically entered into the system for active law enforcement investigations or other legitimate investigatory purposes. • General civilian license plates that are incidentally captured by Flock cameras but are not part of an active investigation are not reported to, stored by, or otherwise maintained in the Department’s records; such incidental captures do not become police records unless tied to an authorized investigatory purpose. The Department has received a number of public records requests seeking Flock data showing incidental captures of personal vehicles, which reflects a misunderstanding of the intended purpose of these surveillance tools. Those

Captain Jeffrey M. Rodley SPR26/0211 Page 6 February 4, 2025 incidental captures are not police records in the Department’s custody. … To the extent the request seeks footage of incidental captures of civilian plates that are not part of any investigatory search, complying with such a request would require the Department to perform database searches or system queries and thereby generate results that are not otherwise maintained as records. The Public Records Law does not require a custodian to create a new record in response to a request for information. The Department is advised that 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). Further, under the Public Records Law, 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). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the Department’s response, and the information provided in the requestor’s appeal petition, it remains unclear whether the Department possesses records responsive to the request. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). The Department must clarify whether it possesses responsive records. Conclusion Accordingly, the Department is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. The requestor may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Anonymous Requestor