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.

Worcester event is postponed

Thursday evening’s reading at Annie’s Book Stop of Worcester has been postponed because of the impending storm. We plan to reschedule in May or June.

Talking about ‘The Return of the Moguls’ this week in Worcester and Falmouth

My new book, “The Return of the Moguls,” will be released tomorrow, and the first two events will take place later this week. If you’re in the area, I hope you can join me.

On Thursday, I’ll be at Annie’s Book Stop of Worcester at 7 p.m. Bookstore owner Trisha Wooldridge and I recently had a conversation about the future of newspapers and how I went about doing my research and reporting. You can register for the event by clicking here.

On Saturday, I’ll be at the Falmouth Museums at 2 p.m. More information here.

More events are being added all the time. Just click here for the latest.

Talking ‘The Return of the Moguls’ with Annie’s Book Stop of Worcester

The first event I have scheduled for “The Return of the Moguls” is a bit off the beaten track: Annie’s Book Stop of Worcester, located at 65 James St. I’ll be doing my thing at 7 p.m. You can register via Facebook by clicking here. Recently I had an email conversation with Trisha L. Wooldridge of Annie’s. We talked about the book, writing and my gradual realization that I will never be David Halberstam.

The Post’s data on hospice care should spur local editors

Click on image for interactive map at washingtonpost.com
Click on image for interactive map at washingtonpost.com

If I were running a news organization that covered Sudbury, Bedford, Amherst, Worcester, Northbridge, Taunton or Fall River, I’d be taking a close look at a database published on Sunday by The Washington Post.

According to an investigation by the Post, one in six hospices in the United States did not provide crisis care to their dying patients in 2012. “The absence of such care,” wrote Post reporters Peter Whoriskey and Dan Keating, “suggests that some hospice outfits are stinting on nursing attention, according to hospice experts. Inspection and complaint records, meanwhile, depict the anguish of patients who have been left without care.”

And, indeed, Whoriskey and Keating offer some horror stories, starting with 85-year-old Ying Tai Choi, a Tampa, Florida, woman whose nurse abandoned her an hour before she died.

What gives the Post’s investigation value beyond its immediate impact, though, is that the paper uploaded the database it used to carry out its reporting. The Post says it analyzed Medicare billing records for more than 2,500 hospice organizations as well as “an internal Medicare tally of nursing care in patients near death and reviewed complaint records at hundreds of hospices.”

By showing its work, the paper has provided valuable leads for follow-up stories by news organizations across the country.

According to the database, 16 percent of 43 hospice facilities serving 22,865 patients in Massachusetts reported providing no crisis care in 2012. That percentage is right around the national average, though it is higher than any other New England state.

Under Medicare rules, a hospice must be able to provide crisis care to its terminally ill patients, which the Post tells us is “either continuous nursing care at home or an inpatient bed at a medical facility.” The Post is careful to point out that the mere fact that a facility did not provide crisis care in a given year is not evidence that there’s anything wrong. It’s possible that none of its patients needed it. A further explanation:

The absence of crisis care does not necessarily indicate a violation of the rules. But hospice experts say it is unlikely that larger hospices had no patients who required such care.

In other words, the database provides questions, not answers — precisely the information news organizations need for follow-up reports at the local level. Investigative reporting is expensive and time-intensive. The Post’s hospice story provides journalists with a great head start.

BBJ: Henry is close to selling Worcester paper

The indispensable Boston Business Journal reports that John Henry may be close to selling the Telegram & Gazette of Worcester, the “other” newspaper he acquired when he purchased The Boston Globe.

Craig Douglas writes that the T&G may end up in the hands of GateHouse Media, which recently implemented cuts at its two newest Massachusetts properties, the Cape Cod Times and The Standard-Times of New Bedford.

I’d like to think that Henry would sell to local owners if he could find any. The T&G may be a tough acquisition at this point, and GateHouse may be among the few prospective buyers willing to take it on.

My hope is that GateHouse, which is going through a structured bankruptcy aimed at getting $1.2 billion in debt off its back, will prove to be a better steward of the T&G than we’ve come to expect.

GateHouse’s recent move at its weekly papers in Massachusetts — reallocating resources from weaker to stronger papers rather than engaging in out-and-out cuts — offers some reason for optimism.

Update: Henry has what sounds like good news, according to the T&G — no sale before 2014, plus he’s hoping for a local buyer.