Muzzle follow-up: An Appeals Court panel doles out more pain for the city of Worcester

Worcester City Hall and Common. Photo (cc) 2015 by Destination Worcester.

For years, the city of Worcester withheld public records about police misconduct that had been sought by the local daily newspaper, the Telegram & Gazette. It’s already cost the hapless taxpayers big-time: Nearly a year ago, an outraged judge ruled against the city and awarded the T&G $101,000 to cover about half the cost of the newspaper’s legal fees. She also assessed the city $5,000 in punitive damages.

That outrageous misconduct, overseen by former city manager Edward Augustus, was the subject of a 2022 New England Muzzle Award, published by GBH News.

Now a three-judge panel of the state Appeals Court is asking a logical question: If the T&G was in the right and the city was in the wrong, why shouldn’t the newspaper be compensated for all or most of its legal fees rather than just half? This week that panel overturned the lower-court ruling and ordered Superior Court Judge Janet Kenton-Walker to consider increasing the legal fees she awarded, according to a report by the T&G’s Brad Petrishen, who first began seeking the records in 2018.

Petrishen quoted Associate Justice John Englander as saying: “At 10,000 feet, what happened here is the newspaper wanted to write about something and it took them three years to get the documents they wanted to write about.”

The proceedings have been followed closely by Andrew Quemere, a journalist who writes a newsletter on public records called The Mass Dump. Quemere published a detailed account this week that includes some particularly entertaining quotes from an exchange Justice Englander had with the city’s lawyer, Wendy Quinn, at oral arguments in December:

“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.”

As Quemere notes, Judge Kenton-Walker has consistently taken the position that the city not only erred and acted in bad faith, ordering that the city turn over the documents that the T&G had sought in June 2021 and then awarding $101,000 in legal fees in February 2022.

Even so, the newspaper appealed, seeking the full $217,000 it had paid — and, as the Appeals Court panel has now ruled, it may very well be entitled to that money. Jeffrey Pyle, a Boston-based First Amendment lawyer who represented the T&G, put it this way at the oral arguments: “To cut [the fees] by 54% 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.”

To make matters worse for city officials, the Department of Justice last November announced that it had launched an investigation to determine whether the police department had used excessive force or engaged in discrimination on the basis of race or gender, although it is not clear whether DOJ was motivated by the T&G’s reporting.

I hope the T&G gets every last dime that it spent on this case. But I should add that the newspaper’s corporate chain owner, Gannett, deserves credit for pursuing this without any guarantee that it would ever be compensated. I criticize Gannett’s cost-cutting frequently in this space, but the company and its predecessor, GateHouse Media, have always been dedicated to fighting for open government, even if it means going to court. They could have told the T&G’s editors to forget about it, but they didn’t.

Finally, a disclosure: David Nordman, who was the T&G’s editor until this past summer, is now a colleague of mine at Northeastern. We work on opposite sides of the campus, literally and figuratively: he’s the executive editor of Northeastern Global News, part of the university’s communications operation, and I’m a faculty member at the School of Journalism.

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