Worcester’s war on police transparency continues to cost taxpayers
Taxpayers are on the hook for more money after a state Appeals Court ruling in a long-running public records lawsuit
Worcester’s unlawful three-year campaign to keep police misconduct records from the public is continuing to cost taxpayers a year and a half after the city lost the case. Now, taxpayers are on the hook for more of a local newspaper’s legal fees, a panel of three state Appeals Court judges ruled on Wednesday.
The decision overturned a lower-court judge’s ruling that slashed the Telegram & Gazette’s legal fees by 54 percent. It’s the first time an appellate court has ruled on a provision of the 2016 update to the public records law that allows people to recover their legal fees when they succeed in suing a municipality or state agency for improperly withholding records.
The decision comes after oral arguments in December, when an exasperated Justice John Englander subjected Wendy Quinn, the lawyer who represented the city, to an acerbic interrogation about her handling of the case.
“What did the plaintiffs request or push for that they were wrong about?” Englander asked.
Quinn paused for about six seconds before asking Englander to clarify his question.
“What the heck did you spend three years and hundreds of thousands of dollars fighting over if they should have gotten [the records]?” Englander asked. “If you had a defense, I’d like to understand what the defense was.”
Quinn said the city’s main defense was that it did not have to release internal-affairs records about the officers because they were facing civil rights lawsuits at the time.
The city cited the deliberative-process exemption to the public records law, which protects letters and memoranda related to policy positions that an agency is developing. However, the exemption says that it does not apply to “reasonably completed factual studies or reports.”
The lawsuit dates back to 2018, when journalist Brad Petrishen requested several internal-affairs reports and officer complaint histories from the city. The T&G reporter was looking into a voluminous complaint submitted to prosecutors by civil rights lawyer Hector Pineiro, who accused officers of beating people, conducting illegal searches, staging evidence, falsifying reports, and more.
In November, the US Department of Justice announced that it was opening a civil rights investigation to determine whether the Worcester Police Department engages in a pattern or practice of racially discriminatory and gender-biased policing. Justice Department officials have not said whether they were influenced by Pineiro’s complaint or the T&G’s reporting.
The city initially agreed to provide the T&G with most of the records but backtracked after the paper published two articles by Petrishen describing what he learned about the allegations from court records. The T&G soon filed a lawsuit — it was the paper’s third successful lawsuit against the city for internal-affairs records in two decades.
Worcester Superior Court Judge Janet Kenton-Walker ruled in the T&G’s favor in June 2021 after a four-day trial. Last January, Kenton-Walker further ruled that Quinn had acted in bad faith when she advanced the deliberative-process argument and ordered the city to pay about $101,000 for the T&G’s legal fees.
However, Kenton-Walker’s award was less than half of the $217,000 the T&G had requested. She ruled that the T&G’s lawyers were not entitled to compensation for two motions, including their petition for legal fees. She then cut the remaining fees in half.
The newspaper’s lead attorney, Jeffrey Pyle, argued in an appeal that Kenton-Walker abused her discretion by cutting the amount so drastically without providing an adequate explanation.
During the oral arguments, Pyle said that a cut of 10 to 15 percent might have been reasonable.
He continued: “To cut [the fees] by 54 percent sends a message to public records requesters: Don’t bother suing, you’re not going to be made whole even if you win and show that the other side acted in bad faith.”
The Appeals Court panel — which consisted of Justices James Milkey, Joseph Ditkoff, and Englander — largely agreed with Pyle. The justices reversed Kenton-Walker’s decision not to award fees for the fee petition and her decision to cut the fees in half.
The case will now again go before Kenton-Walker, who will need to issue a new decision about how much to award the T&G.
Quinn, a partner at Hassett & Donnelly, was paid $250 an hour for her work on the appeal, according to a contract provided by the city. She was employed as the city’s head litigator during the trial, but she left her government job for the private law firm in March.
Quinn did not respond to a request for comment.
Matthew Moore, a spokesperson for the city, declined to comment or make City Manager Eric Batista or City Solicitor Michael Traynor available for an interview.
“They Had to Do the Work”
During the oral arguments, Quinn argued that the T&G’s lawyers were not entitled to compensation for preparing their request for legal fees because it was a “ministerial task.”
Englander interrupted her. It was one of many interruptions.
“You filed like a 20-page opposition to the fee request,” Englander said, holding up the document. “It’s not a ministerial task anymore.”
He continued: “They made a public records request, at least a significant part of which was totally legitimate. And they’d made it three years before they got their documents, and they had to do the work. And for the city to be opposing at every level in ways that have been found to be in bad faith, shouldn’t they get some fees for that?”
Quinn said that this was a unique case because the officers were facing civil rights lawsuits at the time the T&G requested the records. Englander interrupted her again.
“Are they asking for public records or not?” he said. “That’s the question before you. … It doesn’t really matter what the context is, does it?”
Quinn said the context did matter in this case and began discussing the deliberative-process exemption.
Englander interrupted yet again: “How was there policymaking going on? And was that ever expressed? Because [Kenton-Walker], when she finally got to it at the end of trial … said, ‘I still don’t understand why they’re invoking [that exemption].’”
Quinn said that the documents were subject to protective orders in the civil rights lawsuits, prompting another interruption from Englander.
“The protective orders were so the plaintiffs [in the civil rights lawsuits] didn’t take the documents and go send them to the papers. The protective orders don’t protect you,” he said, sighing. “They don’t protect you from a public records request if they’re public records.”
Quinn responded: “But it was a struggle between why should the newspaper have a greater right of access to those records than the plaintiffs in that [civil rights] litigation?”
“Because the Legislature created the public record [law],” Milkey said, laughing.
“And they don’t have a greater right,” Englander added. “They have exactly the same right. Anybody could have made the public records request.”
Later, Englander brought up the officer complaint histories, brief documents that list every complaint against one officer. He asked Quinn how these documents could have been protected by the deliberative-process exemption even though the investigations they listed were complete at the time.
Quinn again brought up the civil rights litigation, saying the lawsuits were the deliberative processes that allowed the city to withhold the documents.
“I have to say, having a little experience in that position, I can understand the judge’s concern over the good faith of [the city’s argument],” Englander said.
“What happened here is a newspaper wanted to write about something, and it took them three years to get the documents,” he continued. “That’s success from the perspective of Worcester. The Worcester Police Department succeeded in causing the newspaper not to have the information it was looking for for over three years.”
“Their Job is to Write About the Things That People Care About”
The T&G’s biggest win was overturning Kenton-Walker’s ruling that cut its legal fees in half.
Kenton-Walker said that the lawyers sometimes used “block billing,” lumping tasks together instead of listing each one separately. She also said that the T&G overstaffed the case by having a second lawyer, Michael Lambert, attend many of the hearings despite not speaking.
The Appeals Court wrote in its opinion that it could find “only a few instances” of block billing and that the judge’s concerns about overstaffing were “overstated.”
“Especially in light of the city’s shifting legal defenses and the significant issues that arose at each subsequent stage of the proceedings, we have great difficulty discerning how any duplication of effort here was sufficient to justify such a deep discount in the amount of fees allowed,” the justices wrote.
However, the T&G failed to convince the Appeals Court to overturn Kenton-Walker’s ruling that the newspaper wasn’t entitled to its legal fees for a motion to expedite the case and resolve it without a trial.
The June 2020 motion argued in part that the nationwide protests about the murder of George Floyd by Minneapolis police officer Derek Chauvin made the release of the records more urgent.
During the oral arguments, Englander seemed to take the T&G’s side, saying: “How can they be criticized for [trying to expedite the case]? That’s their job. Their job is to write about the things that people care about — and right then, they cared about that.”
But Englander joined the other justices in the opinion, which says that, while the T&G’s “frustration … was understandable,” the paper made the motion “near the inception of the pandemic and under circumstances where trial already had been set for a few months later.”
However, the justices wrote elsewhere in the opinion that “some of [the] issues could have and probably should have been resolved earlier in the litigation.”
The Appeals Court also declined to award the T&G legal fees for bringing the appeal.
During the oral arguments, Pyle said that not awarding full legal fees for the appeal “would discourage people from appealing and therefore allow for these kinds of unreasonable fee awards down below to be less than properly appealable.”
But the Appeals Court said that the T&G had “not established that the fee award was ‘plainly unreasonable,’ nor yet established that it will obtain a significantly higher fee award.”
The Appeals Court issued its decision in an unpublished opinion, meaning it is not a binding precedent in future cases. However, lawyers can still cite the decision as “persuasive authority” — a source that a judge can consider when making a ruling but is not required to follow.
Howard Friedman, a Boston civil rights lawyer who has brought public records lawsuits but was not involved in the T&G case, said he was disappointed with parts of the decision.
“It’s not great from my point of view,” he said. “I was particularly surprised to see [the Appeals Court] denying fees on an appeal when the plaintiff won the appeal.”
He continued: “In other cases where I might be representing someone, it might be an individual seeking public records. And that would mean that the attorney doesn’t get paid at all. And it seems like when you won on almost every issue on appeal, the appeal was necessary. The person bringing the appeal should have their attorneys be compensated.”
However, Friedman said that there were many positive aspects of the opinion. He said the discussion of the T&G’s use of two attorneys was “quite good” and said it was “useful” to know that the justices did not see much evidence of block billing.
“I certainly would hope we won’t see so many judges coming up with a cut that is as high as 50 percent, because obviously that’s huge,” he said.
Petrishen, the reporter whose work led to the lawsuit, has continued writing about the Worcester Police Department. In a detailed piece published in December, he reported on allegations by leaders of a local nonprofit that Worcester police officers are routinely sexually assaulting and abusing sex workers.
Meanwhile, the Justice Department investigation of the police department continues.
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