“We don’t go into things looking to file lawsuits, but when we feel like people have not followed the law, we challenge them.”
A judge excoriated Worcester for its unlawful three-year campaign to keep police misconduct records secret from a local newspaper, writing in a recent ruling that a city lawyer attempted to mislead the court and “did not act in good faith.”
Worcester Superior Court Judge Janet Kenton-Walker ordered the city to pay $101,000 to cover the legal fees of its paper of record, the Telegram & Gazette. To hold the city accountable for its intransigence, she also ordered it to pay $5,000 in punitive damages.
It is the third time in two decades the T&G has taken the city to court over the issue of police-misconduct records—and the third time the newspaper has succeeded.
The city told the T&G that it will not appeal Kenton-Walker’s ruling. If it keeps its word, the lawsuit will not create any case law to be cited in the future. But in one sense, the decision sets a precedent—it is the first time a judge has awarded punitive damages under a provision in the 2016 public records law.
The city will surrender the $5,000 to the state’s public records assistance fund, which was established “to provide grants to municipalities to support the information technology capabilities of municipalities to foster best practices for increasing access to public records.” Although damages are not the only way for money to be deposited to the fund, the balance has remained at zero since the 2016 law took effect.
The genesis of the lawsuit dates back to June 6, 2018, when the tenacious investigative reporter Brad Petrishen emailed two public records requests to the police department. One asked for records related to 12 internal affairs investigations. The second sought complaint histories for 17 police officers; these documents list every internal affairs investigation and the outcome of those investigations for one officer.
Petrishen was following up on a lengthy complaint drafted by Hector Pineiro, a lawyer who has spent decades battling Worcester police in court as a defense attorney and civil rights litigator. In the 749-page document sent to local, state, and federal prosecutors, Pineiro alleged numerous instances of serious police misconduct—the parade of horribles included beatings, illegal searches, falsified reports, staged evidence, and more. Some of the allegations were associated with lawsuits filed by Pineiro.
Petrishen also started gathering court records to determine “how many of these complaints had something behind them,” he explained in a 2020 interview with the New England First Amendment Coalition.
In one case, detectives pulled over and arrested Carl S. Johnson, a 63-year-old with no criminal history. They claimed that they had previously made controlled cocaine buys from him and witnessed a man briefly enter his car just before the stop, possibly to buy drugs.
They did not find any drugs on Johnson despite allegedly subjecting him to a humiliating body-cavity search. They then took his keys, drove nearly a mile to his home, and searched it without a warrant, again failing to find any drugs.
After learning the facts, a local judge dismissed the charges, commenting to a prosecutor, “There is this thing called the constitution. Maybe [the police] should read it.”
“And speaking to a lot of lawyers in the county, that’s not the sort of comment that they believe a judge would just throw out there willy-nilly,” Petrishen told NEFAC.
After the dismissal, Johnson filed suit against the city in federal court.
The city initially told Petrishen it would provide all of the records he requested except four investigations that were still open. But after the T&G published two articles by Petrishen describing what he learned from court records, the city told the reporter that it wouldn’t turn over any of the complaint histories. The city took the position that it could keep records of misconduct secret while it fought civil rights lawsuits against the officers. Later, the city said it would also withhold many of the investigations for the same reason.
The newspaper filed its lawsuit a few weeks later. “[T]his was, in our minds, so clear cut that it was something that we felt was important to do,” Petrishen told NEFAC.
Judge Kenton-Walker determined that the city had violated the law in a ruling last June 2—just a few days shy of the three-year anniversary of Petrishen’s requests. In a pair of Jan 26 decisions, she addressed the issues of legal fees and punitive damages.
T&G editor Dave Nordman was quoted in his paper as saying the ruling was a “big win for democracy.” He added: “Our job is to hold those in power accountable. … We don’t go into things looking to file lawsuits, but when we feel like people have not followed the law, we challenge them.”
Petrishen thanked the paper’s lawyers, Jeffrey J. Pyle and Michael J. Lambert, tweeting that they “laid bare for the court the invalid and, as the judge noted, misleading arguments the city of #Worcester chose to make for 3 yrs.”
Jeff Pyle, a First Amendment expert with the Boston firm Prince Lobel Tye, was the lead attorney. “Hopefully this ruling will cause other public bodies to think twice before denying public records based on weak and strained legal arguments,” he told the paper.
In January, US Attorney Rachael S. Rollins, who had just left her role as Suffolk County district attorney to become the state’s top federal prosecutor, told the T&G she intends to look into the status of Pineiro’s complaint.
Deliberate misuse of the deliberative-process exemption
The lawsuit was an oddity in that it went to trial.
“This is my first public records trial in Massachusetts,” Pyle said shortly after the trial’s end. “Ordinarily, these cases rarely proceed to litigation, and it’s even more unusual that they proceed to trial. … [T]hese [cases] are often decided on summary judgment.”
The trial took place over four days spread out through November and December 2020 and January 2021. The first day was held in person, with all participants wearing masks. The remainder was conducted online.
Asst. City Solicitor Wendy L. Quinn represented Worcester. Quinn, who also defends local cops against civil rights lawsuits, argued: “[T]he city has an important duty to the public, and to the taxpayers, and its public employees—the police officers—to defend litigation in which they are involved to the fullest extent. The civil rights cases in federal court are some of the highest potential liability cases the city faces, with exposure in the tens up to hundreds of thousands of dollars.”
Her argument was based on the deliberative-process exemption to the public records law. This exemption says it applies to “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this [exemption] shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.”
Pyle argued that the language of the exemption simply doesn’t apply to internal affairs records: “None of the records in this case are about any policy being developed by the police department or by the city. They are inherently factual documents. They document factual investigations into whether police officers violated existing policy or law, not about whether police officers ought to be subject to different policies in the future.”
Pyle said the city’s interpretation of the exemption “is so broad that it raises very troubling issues.” As he explained: “In theory, if you had an officer who was prone to committing abuses of people’s rights, an officer who was prone to lying, an officer who’s committing a fair amount of misconduct, you would expect that officer to get sued more often. … So in other words, the city says you can have records of the good officers but not the allegedly bad officers who are frequently sued. That turns the accountability function of the public records law on its head.”
He continued: “[A]ll sorts of records would immediately become secret if the city’s interpretation of [the deliberative-process exemption] were accepted. If you have a pending zoning appeal, the city could hide all the documents about the development project … because they’re related to litigation. If you have a criminal charge against an officer for abusing payroll for making up overtime hours … all public payroll information about that officer would suddenly become nondisclosable, according to the city—even though you have cases going back to the 1970s saying that police payment records are public because of the public’s paramount right to know how its taxpayer money is being spent.”
Quinn had another argument, and it was telling: “[T]he deliberative-process exemption is based on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery. … So taking this point to the extreme, if [the exemption] does not apply in this circumstance, that may actually deter municipalities from undertaking thorough investigations and cataloging complaints against police officers if such records can be released to their detriment when involved in civil rights litigation.”
In a statement to the T&G, City Solicitor Michael E. Traynor justified Quinn’s argument by saying that she was making an “analogy” and “was not portending the adoption of new policies by municipalities in general, nor the city of Worcester in particular with regard to investigations or complaints against police officers.”
In a related part of her argument, Quinn said that some of the records were subject to federal protective orders as part of the civil rights litigation.
Pyle called the protective-order issue a “red herring.” Protective orders only prevent parties who receive documents from releasing them, he explained. “But this isn’t a case about documents received by the city; this is a case about documents created and maintained by the city.”
Quinn acknowledged that the protective orders didn’t prevent the city from releasing the records. “But the protective orders demonstrate the very confidential nature of these documents and the substantial relationship of those documents to the federal civil rights litigation,” she said. “This court should allow the case in federal court to proceed through that system without the city being put at a disadvantage merely because it is a public entity subject to the public records law. If there is a public release of such information before trial, it may taint a potential jury pool.”
Kenton-Walker’s decision to punish the city financially focused on two of its arguments, the first being the deliberative-process issue. She wrote that the city relied on precedents where the exemption was “applied in more nuanced circumstances,” and that “the city merely cherry-picked certain language from those cases, taking it out of context.”
The judge also chastised the city for saying its position was supported by two decisions by the supervisor of public records, a state official who is responsible for oversight of the public records law. The decisions were “merely instances where the [supervisor] declined to opine on records requests,” she wrote. “There was no mention of [the deliberative-process exemption] in those determinations, and thus they did not support the city’s interpretation. 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.”
In her 2021 ruling, Kenton-Walker noted that the city’s interpretation of the deliberative-process exemption was “even more expansive” than a litigation exemption considered but rejected by the state legislature. She also pointed out that the city used the exemption to withhold records about three officers who were not even being sued.
The second argument that drew Kenton-Walker’s ire was Worcester’s invocation of the privacy exemption. The city had claimed that the conclusions of internal affairs investigations could be withheld under a clause of the exemption that protects personnel records. However, the state Appeals Court rejected this exact argument in 2003 when it ruled on a separate lawsuit the T&G brought against the city.
The 2003 decision includes idealistic language about the importance of police transparency: “The internal affairs procedure fosters the public’s trust and confidence in the integrity of the police department … because the department has the integrity to discipline itself. A citizenry’s full and fair assessment of a police department’s internal investigation of its officer’s actions promotes the core value of trust between citizens and police essential to law enforcement and the protection of constitutional rights.”
The court observed that “[i]t would be odd, indeed,” for the privacy exemption “to shield from the light of public scrutiny … the workings and determinations of a process whose quintessential purpose is to inspire public confidence.”
The Appeals Court ruling remains a landmark in state public records law. The secretary of the commonwealth’s guide to the public records law, a document written to educate both those who make records requests and the government officials who respond to them, describes the decision in its description of the privacy exemption.
The trial’s single witness was Janice E. Thompson, an assistant city solicitor who said she spends most of her time advising officials how to respond to records requests. Thompson testified that she was aware of this case when she used the privacy exemption to withhold the conclusions of investigations.
Shortly before the trial, the city told the T&G that it had revised its “policy” on the exemption after the law department conducted “a survey of the practices of a number of area cities and towns as well as the State Police.” (Petrishen, following up on these claims, learned the city had not actually put the “policy” or the results of the “survey” in writing.) Quinn argued that this policy change absolved the city of responsibility for raising the erroneous argument.
Kenton-Walker didn’t buy that one either, writing, “While the city asserts that any issue relating to it claiming [the privacy exemption] is moot now that it has changed its practice, the court cannot ignore that it originally took that position in spite of the fact that the city was one of the parties to, and thus aware of, [the 2003 decision].”
The proceedings were a window to the souls of city officials, illuminating their scorn for the scrutiny that comes with running a local government. At every stage, city lawyers acted the aggrieved party while treating the T&G—and its crucial community role of reporting the news—with contempt.
To Petrishen, the decision to report on allegations of police misconduct was obvious. “We felt like it was important to write about these things and to try to determine the truth, because that’s really what we care about,” he told NEFAC in 2020. “If the officer is exonerated, that’s great—that inspires public confidence, and … the public should know that so there’s not some allegation floating out there against them that’s not true, right? And conversely, if they’ve done something wrong, the public deserves to know that.”
But Quinn, during a pretrial hearing, attacked Petrishen’s motives for requesting the records. She accused him of “working hand in hand” with Pineiro, the civil rights lawyer suing the city.
“Is there any relationship between the reporter and the attorney?” asked Judge William M. White Jr., who was hearing the case at the time.
Quinn admitted that she had no evidence, but she complained that Petrishen had written about “the self-serving complaints by this attorney … even though they’re speculative and haven’t been proven.”
In a motion, Quinn wrote that the T&G published stories about Pineiro’s allegations “under the guise of its role as ‘watchdog.’”
The trial was largely taken up by the testimony of Janice Thompson, the city lawyer who worked on the responses to Petrishen’s records requests. Jeff Pyle spent hours questioning her to bring out information showing that the city didn’t make a serious effort to follow the law.
While answering Quinn’s questions, Thompson testified that the city’s decision to reverse course and withhold the records had nothing to do with Petrishen’s articles. She said the decision was made after she had a conversation “in passing” with someone from the litigation side of the city law department who told her about the pending civil rights lawsuits.
In response to Pyle’s questioning, Thompson said she couldn’t remember who this lawyer was or “any specifics” about the conversation. (Reached by phone, Quinn said the litigation side currently has only four lawyers; she could not remember how many there were in 2018.)
After Pyle began questioning Thompson, Quinn complained to the judge that he was addressing the witness as “Miss Thompson” instead of “attorney Thompson.” “I think it’s disrespectful,” Quinn said.
“I usually find ‘attorney’ to be rather unfriendly, but I’ll use ‘attorney’ if you prefer,” Pyle responded.
Like Quinn, Thompson made little effort to conceal her hostility. Pyle asked Thompson if she had made any changes to the city’s original response saying that it would release most of the records to the T&G. “Does it look like I did?” she replied.
Kenton-Walker cut in: “That’s stricken. Miss Thompson, you do not answer a question with a question. You can answer yes or no. Or if you don’t know, you can say you don’t know.”
Pyle tried for several minutes to get Thompson to explain what she did to determine if the records were public when she reviewed the original response. She was evasive. Pyle tried asking Thompson if she was “satisfied” the records were public at the time. “I think you’re misconstruing the fact that all records are public records when they’re in the custody of the city to begin with, and then exemptions are applicable,” she responded.
Pyle kept rewording. Thompson said one phrasing was an “improper question.” She again said that all records are public records.
Finally, Pyle asked Kenton-Walker to instruct Thompson to answer. “I’m going to ask you, just, really, it’ll go a lot faster for you if you just simply—if you can answer the question as asked,” the judge said. “I think the question was clear, but let’s try it again.”
Thompson repeated two more times that all records are public records. The second time, she addressed her interrogator by name—“Mister Pyle,” not “attorney Pyle.”
Kenton-Walker wrote in her 2021 decision that she generally found Thompson to be a credible witness but that she did “not credit” testimony that the city took the protective orders into consideration when it denied Petrishen’s records request. “It was only after this lawsuit commenced that the city mentioned protective orders serving as a basis for withholding records,” she wrote.
The process is the punishment
This is the third time Worcester has forced the T&G into a protracted and costly legal battle over the release of police-misconduct records.
The first was the 1999 lawsuit that resulted in the 2003 Appeals Court decision. In that instance, the city argued it could withhold all internal affairs investigations, including records about a notorious incident where a police officer, responding to a car alarm, held two innocent men at gunpoint. The men told the officer that one of them, Shawn Wilder, was recovering from a broken neck. The officer then stomped on Wilder’s head, putting him in the hospital. (The officer, Michael A. Tarckini, was later promoted to detective. His name appears in Pineiro’s complaint, although he is not one of the officers whose complaint histories were sought by Petrishen.)
That drawn-out lawsuit actually involved multiple appeals by the city. Before the 2003 decision, the Supreme Judicial Court heard another appeal that dealt with a separate legal issue. The city wanted to challenge the 2003 decision before the SJC too, but it missed the high court’s filing deadline.
The T&G filed the second lawsuit in 2008 after the city blacked out hundreds of pages of records about Mark A. Rojas, an officer who has since retired. The records, which the city provided after reaching a settlement in 2010, included allegations of threats against an ex-girlfriend, violence, and dishonesty.
As Pyle put it during the trial, “[T]he city has tried for 20 years to withhold internal affairs records in toto when they are requested by the Worcester Telegram & Gazette, and its reasons for doing so get less persuasive each time.”
At the time of the first two lawsuits, the public records law did not allow judges to award legal fees or order punitive damages. But the 2016 update to the law authorizing such rulings made no difference to the city, which raises a serious question about how effectively financial penalties can deter determined government officials.
Worcester officials knew they would get bad press for refusing to release these records. They knew they were breaking the law. They knew they were wasting the judge’s time. They knew that taxpayers might end up on the hook for the T&G’s legal fees and for punitive damages.
Nevertheless, they spent three years paying their own lawyers to labor for this lost cause. They made the decision that the ethical, legal, and financial considerations did not matter—the true priority was giving the T&G a hard time and keeping the records away from the public for as long as possible.
This was a case where the process was the punishment—and viewed from that perspective, it’s not clear who prevailed.
The city succeeded in limiting the punitive damages. Pyle argued that while damages are capped at $5,000, the wording of the law allows judges to award up to that amount for each violation. Since the city withheld numerous documents, it should have been hit with $95,000 in damages, he argued. Kenton-Walker did not explicitly reject this interpretation, but she still fined the city only $5,000.
The T&G’s lawyers will get paid, but the court’s award of $101,000 was less than half of the $217,000 Pyle requested for their years of work and expenses.
Quinn said they deserved nothing because her frivolous arguments about the deliberative-process exemption were “novel.” She said that if an award was granted, it should be reduced to $44,000. She complained that the T&G’s legal team included a second lawyer and that a paralegal did a few hours of work while she defended the city by herself. She added that granting the lawyers a “windfall” would burden city taxpayers.
Pyle countered that it was the city’s bad faith and “everything-plus-the-kitchen-sink defense” that resulted in an expensive and unnecessary trial.
Kenton-Walker took a middle ground, placing blame on the city and calling the T&G’s lawyers “experienced and capable” but saying the hours for which they billed were excessive.
How many tax dollars the city spent on its defense is unknown—but one thing is certain: Worcester is unrepentant.
“The city always acts in good faith and we maintain our position that we did so in this case,” City Solicitor Traynor said in a statement. “However, the court has spoken and we will move on.”
Wendy Quinn, reached by phone, asked for any questions about the lawsuit to be sent to her in writing. She did not respond to an emailed list of questions.
The city declined to make its chief executive, City Manager Edward M. Augustus Jr., available for an interview.
In her recent ruling, Kenton-Walker declined to issue a permanent injunction barring the city from making similar arguments in the future. She wrote: “[T]here is no indication that the city will continue to improperly claim the exemptions discussed in detail in the court’s June 2021 decision. If the city were to take such ill-advised action in the future, … it would risk being embroiled in another public records lawsuit, with the possibility that more significant punitive damages might be awarded. Simply put, the court expects the city to follow the law now and in the future.”
To the city of Worcester, it probably sounds like a challenge.
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This article is syndicated by the MassWire news service of the Boston Institute for Nonprofit Journalism. If you want to see more reporting like this, make a contribution at givetobinj.org.
Andrew Quemere has been making public records requests in Massachusetts for more than a decade. He writes The Mass. Dump Dispatch, a newsletter about public records. Subscribe to read about the latest developments in government transparency. Follow him on Twitter @andrewqmr.