Worcester’s wasteful, never-ending war on police transparency
Inside the long-running lawsuit over police misconduct records that continues to cost taxpayers
My latest piece is about the Telegram & Gazette’s long-running lawsuit against the city of Worcester for police internal-affairs records. I previously wrote a lengthy piece about lawsuit, but there have been a couple big updates since then.
After a judge ripped into Worcester for its three-year fight to withhold police misconduct records from the local newspaper, city officials are refusing to release additional information about the lawsuit, leaving residents with no answers about why their tax dollars were wasted on an illegal effort to keep them in the dark about a critical issue.
In 2018, journalist Brad Petrishen requested several internal-affairs reports and officer complaint histories from the city. The Telegram & Gazette reporter was looking into a voluminous complaint submitted to prosecutors by local civil rights lawyer Hector Pineiro, who accused officers of beating people, conducting illegal searches, staging evidence, falsifying reports, and more.
The city initially agreed to provide the T&G with records about many of the officers 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 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. The victory came after a four-day trial.
In January, Kenton-Walker further ruled that officials had acted in bad faith and ordered the city to pay $101,000 for the T&G’s legal fees and expenses plus $5,000 in punitive damages. It was the first time a judge issued punitive damages under a provision in the 2016 update to the public records law.
When making her decision to punish Worcester, Kenton-Walker focused on two of the city’s arguments.
The city argued that it could withhold records related to the officers because they were being sued. Worcester attorneys cited the deliberative-process exemption, which protects memos and letters about policy positions that are in development. This exemption states that it “shall not apply to reasonably completed factual studies or reports,” meaning it clearly did not apply to completed internal-affairs reports and complaint histories the T&G requested.
The city also argued that it did not need to release the conclusions of internal-affairs reports despite a landmark 2003 Appeals Court decision that held the opposite. The city was well aware of this ruling because it was from the first T&G lawsuit, a fact the judge said she could not ignore.
“[T]he city merely cherry-picked certain language from [previous] cases, taking it out of context” to justify its legal arguments, Kenton-Walker wrote. “While the court appreciates that counsel may at times advance novel legal arguments to zealously represent a client, counsel may not misrepresent to the court what cases and other materials stand for.”
It remains unclear why city officials decided to pursue these preposterous arguments. Since the judge’s ruling, the officials involved in the lawsuit have refused to comment. The one exception was a short written statement from City Solicitor Michael E. Traynor: “The city always acts in good faith and we maintain our position that we did so in this case. However, the court has spoken and we will move on.”
Worcester officials have never addressed the substance of Kenton-Walker’s findings. They also chose not to appeal.
“Let the Public Decide for Themselves”
On March 2, I filed a public records request for all communications related to the planning of the city’s legal strategy to learn more about the decision-making process. The city initially responded that it had “identified approximately 698 communications which may be responsive.”
State law requires municipalities to comply with records requests within 10 business days if possible and 25 at the most. The city said it needed the maximum amount of time so that it could review the records.
But after 25 business days had passed, the city still had not responded further.
I filed an appeal with the Public Records Division of the Secretary of the Commonwealth’s Office, which provides statewide oversight of the public records law. The supervisor of public records ordered the city to comply with my request, giving it an additional 10 business days.
The city again blew off the deadline.
After Angela Puccini, the compliance supervisor at the Public Records Division, prodded the city, it finally responded on June 10 by saying that it was withholding all of the records. The city cited attorney-client privilege and attorney work-product privilege. Instead of providing records, the city opted to provide a privilege log.
Normally when a local government or state agency withholds public records, the supervisor of records has the discretion to conduct an in camera review (i.e., a private review) of the records to determine if they are exempt. But when officials invoke attorney-client privilege, the supervisor cannot require the municipality or agency to provide records for review and can only require it to produce a log.
According to state law, the log must include “a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.”
Worcester’s log lists 166 communications, with dates, names, and terse descriptions of the subject matter.
“Duplicates have been eliminated as have communications pertaining to administrative matters such as scheduling. Responsive communications are limited to communications to and from attorneys representing the city pertaining to legal strategy related to [the T&G] litigation,” said Janice E. Thompson, the assistant city solicitor who compiled the log. “These communications constitute attorney-client privileged communications between a government entity and its legal counsel, the disclosure of which would violate attorney-client privilege and the Rules of Professional Conduct.”
I filed a second appeal, arguing that the log does not contain enough information to show that all the records are privileged, but the supervisor of records sided with the city.
“The city of Worcester is not bound by attorney-client privilege when it comes to releasing [this] information because they’re both the attorney and the client,” said Dave Nordman, the former Telegram & Gazette executive editor who oversaw the lawsuit. “They’re making a conscious decision not to be as transparent as they could be—and that’s serving city government officials well, but it’s certainly not serving the public well.”
Robert Burgess, a spokesperson for the city, refused to answer questions about the city’s decision to invoke attorney-client privilege.
Acting City Manager Eric D. Batista and Traynor both declined interview requests.
“It always surprises me how the city government in Worcester doesn’t trust its citizens to interpret the facts,” Nordman said. “All anybody’s ever tried to do was lay out the facts and the data and let the public decide for themselves. And for some reason, the city of Worcester historically has not believed that the public can make an informed decision. … They believe that if the facts are presented, that maybe people won’t take their side.”
“Worcester residents deserve to know why the city made the decisions it did,” said Justin Silverman, the executive director of the New England First Amendment Coalition. “While officials may be able to hide records behind attorney-client privilege, they are not required to do so. They can and should provide more transparency.”
Silverman continued: “The city acted in bad faith by withholding police records and then proceeded to spend a significant amount of tax dollars needlessly litigating the Telegram case. Those who made the decisions to do so must be held accountable. But that accountability will never occur unless we know more about why those decisions were made in the first place.”
The city maintains that it did nothing wrong.
“The city of Worcester acted in good faith, and we respect the judge’s decision,” Burgess said.
In April, NEFAC presented its annual Freedom of Information Award to the T&G for successfully fighting back against the city.
More recently, the city got its own prize.
Every year, Northeastern University journalism professor and GBH contributor Dan Kennedy gives out Muzzle Awards to government officials who violate the First Amendment or withhold important information from the public. In June, Kennedy gave a Muzzle to Edward M. Augustus Jr, who was the city manager throughout the lawsuit. Kennedy said Augustus “trampled on the public’s right to know about police misconduct” and called the former chief executive’s behavior a “travesty.”
Augustus did not respond to voicemails left with Dean College, where he took on the role of chancellor after leaving the city earlier this year.
According to the Office of the Comptroller, the city still has not paid the $5,000 in punitive damages it owes to the Public Records Assistance Fund.
“The city is in the process of issuing payment to the fund,” Burgess said.
The fund was established by the 2016 public records law “to provide grants to municipalities to support the information technology capabilities of municipalities to foster best practices for increasing access to public records.”
The fund has never given out any grants. Its balance has remained at zero since it was established.
A “Parsimonious Award”
While the Telegram & Gazette won its lawsuit and received the records it requested, its lead attorney for the case is appealing Judge Kenton-Walker’s ruling on legal fees.
Jeffrey J. Pyle had requested $217,000 for himself, his fellow lawyer Michael J. Lambert, and paralegal Janine Sheehan and to cover expenses. Kenton-Walker awarded $101,000—less than half the requested amount.
In his appeal, Pyle argues that Kenton-Walker abused her discretion by cutting the award so drastically without providing an adequate explanation.
When someone successfully sues government officials for refusing to provide records, courts are generally supposed to order the officials to pay the litigant’s legal fees. This fee-shifting provision is relatively new—it was included in the 2016 update to the public records law, which took effect the following year. Prior to that, people denied access to public records either needed to find a lawyer willing to work for free, pay up front, or represent themselves in court.
Despite the addition of the fee-shifting provision, public records lawsuits remain rare even as the number of appeals to the Public Records Division has increased every year.
Although fee shifting is not a novel legal concept, the T&G suit appears to be the first case about the public records law’s fee-shifting provision to go before an appeals court. The outcome could set a precedent that encourages—or discourages—lawyers from taking on government officials who defy the law.
“The fee-shifting provision of the [law] is intended to deter agencies and municipalities from withholding public records without basis, and to incentivize competent counsel to bring suit to enforce the statute,” Pyle writes in his appellate brief. “The Superior Court’s parsimonious award threatens the purposes of the [law] by absolving the City of the financial consequences of its decision to withhold records in bad faith, and by dissuading future plaintiffs and their counsel from bringing public records cases in the future.”
Pyle cites the words of the late Peter V. Kocot, the state representative who spearheaded the 2016 update.
“There’s going to be a real incentive here for [agencies] to follow the law,” Kocot told the State House News Service in 2015. “People shouldn’t have to pay for a lawyer to get basic stuff their tax dollars already paid for.”
In her ruling, Kenton-Walker cut the T&G’s fee award by 54%. She said the paper’s lawyers were “experienced and capable,” and that the “case presented complex factual issues.” However, she said “the legal issues were reasonably straightforward” and the lawyers billed for an excessive number of hours.
Kenton-Walker ruled that the T&G’s lawyers should not be compensated for their work on two motions. The first was a June 2020 motion to expedite the case and resolve it without a trial. The motion argued, in part, that the nationwide protests about the murder of George Floyd by Minneapolis police officers made the release of the records more urgent.
Kenton-Walker likened this motion to “tilting at windmills” and said it was her “duty … to exclude that time.”
The judge also said that the time spent preparing the T&G’s request for legal fees was “unreasonable.”
Pyle argues that the T&G team should be compensated for both motions because the public records law requires judges to expedite lawsuits when feasible and precedent requires judges to compensate lawyers for drafting fee petitions.
After Kenton-Walker struck the hours for the two motions, she cut the remaining hours in half.
She said that both of the T&G’s lawyers attended hearings and the trial, but only Pyle made presentations.
Pyle argues that his colleague, Lambert, was “extensively involved” in the lawsuit, so it was reasonable for him to attend. Pyle also writes that this time only accounted for a small part of Lambert’s hours.
Kenton-Walker also said that the T&G’s lawyers spent an excessive amount of time researching and writing some of their filings, writing that “the legal arguments raised were virtually the same at each stage of the proceedings.”
Pyle writes that the city continually raised new arguments as the case progressed, forcing the T&G to respond, and that some of the work was for briefs that Kenton-Walker requested. Pyle also notes that Kenton-Walker’s ruling only took issue with some of the work he and his colleague did, meaning the judge “halved significant time about which [she] had no criticism.”
Pyle argues that while Kenton-Walker had the discretion to make some reduction to the number of hours, she did not provide specific enough reasons for such a significant cut.
“Rather than explaining how each of [her] criticisms contributed to the extent of the cut, [Kenton-Walker] simply declared that [her] chosen reduction was ‘reasonable,’ ‘considering the billing as a whole.’” Pyle writes. “Such a broad-brush, generalized finding does not permit [the Appeals] Court to meaningfully assess the award, or the reasoning behind it.”
Pyle also argues that he should be awarded additional legal fees for his work on the appeal.
Worcester is being represented by Wendy L. Quinn, the same lawyer who represented the city during the trial—and the same lawyer who argued in bad faith, according to Kenton-Walker’s ruling.
Quinn left her position as the city’s head litigator in March, taking a job with the Worcester office of the law firm Hassett & Donnelly. Amy Peterson, a spokesperson for the city, said at the time that Quinn’s departure was “entirely voluntary,” calling her “a well-respected and talented litigator.”
In May, the city contracted with Hassett & Donnelly, agreeing that Quinn would serve as a special assistant city solicitor and represent the city in the T&G appeal and two other cases. The parties later amended the contract to include three additional cases.
The city agreed to pay $250 an hour to Quinn “and such lesser amount [sic] as are applicable for other attorneys and paralegals of Hassett [&] Donnelly, plus reasonable out-of-pocket expenses, billed monthly.” The contract caps the payments at $40,000.
“Attorney Wendy Quinn—who faithfully represented the city in its Law Department for 17 years and who now works at Hassett & Donnelly—will see the [T&G] case to its fruition,” Burgess said.
Prior to Kenton-Walker’s ruling on legal fees, Quinn argued that the T&G’s lawyers deserved no compensation. She said that if an award were granted, it should be reduced to $44,000.
In her appellate brief, Quinn argues that Kenton-Walker’s ruling should be upheld. The brief does not argue that the award should be reduced.
“[T]he judge does not have to make a decision as to each line in an itemized bill, but can consider the request as a whole,” Quinn writes.
She argues that the T&G’s lawyers used “block billing,” lumping tasks together instead of listing each one separately, making it “difficult to parse what hours were incurred for what specific task.”
She also argues that the fee award “should not produce a windfall to the [T&G’s legal team] at the expense of Worcester taxpayers and public services.”
Her brief does not mention Kenton-Walker’s finding that the city acted in bad faith.
Quinn did not respond to multiple requests for comment.
This article is a collaboration between Andrew Quemere’s Mass Dump newsletter about public records, Bill Shaner’s Worcester Sucks and I Love It newsletter, and DigBoston, and is syndicated by the MassWire news service of the Boston Institute for Nonprofit Journalism.
As always, please consider a paid subscription to this newsletter to support my work.
Alternatively, if you want to support my work but don’t want to receive emails or if you want to make a one-time payment, you can send money to my PayPal tip jar.
And please send me tips! I mostly write about public records and police misconduct. I will write about anywhere in the state, and I’m always looking for new things to cover. If you have a frustrating story about trying to obtain public records or a story about the police that isn’t being told, tell me about it.
You can email me at firstname.lastname@example.org or send me a direct message on Twitter.
That’s all for now.