Fall River is appealing its public records lawsuit loss. It faces thousands in legal bills

FALL RIVER — The Herald News and its parent company, Gannett Inc., won a public records lawsuit against the city last month after a nearly 15-month battle, and now the city is appealing the ruling, including a possible judgment to pay Gannett thousands in attorneys fees.

“We're going to appeal it,” said Corporation Counsel Alan Rumsey. “The appeal will say that basically [the ruling] is incorrect.”

The city has hired the private law firm of Mead, Talerman & Costa of Newburyport to work on the appeal, according to Rumsey.

Gannett and The Herald News asked for a summary judgment to release the records in November 2022, after the city denied the paper's public records requests in May 2022 and June 2022.

'Not exempt from disclosure': Herald News wins public records lawsuit against Fall River

Why The Herald News sued Fall River for public records

On Oct. 11, Bristol County Superior Court Judge Renee Dupuis ordered the city to hand over documents related to a 2022 investigation of former Department of Community Maintenance Director John Perry, which included a report from a private investigator hired by the administration.

During the investigation, the private investigator followed Perry for three days and interviewed approximately 48 DCM workers.

Following the two-month investigation, Perry, a 20-year city employee, resigned in June 2022 with a separation agreement to partially pay off his contract with the city.

The city has refused to release the private investigator's report, the separation agreement, which apparently came with a confidentiality clause, and any other correspondence related to the investigation.

Rumsey said the city has 30 days to file the appeal, and said that no records ordered released by Dupuis will be released to The Herald News at this time.

Gannett could legally recoup thousands in legal costs

In an 18-page opinion, Dupuis ruled on five counts brought by The Herald News: that the city violated public records law procedures; that the city violated the public records laws; and that the city’s use of an exemption, claiming the matter was of a personnel, privacy and investigatory nature, did not apply.

Dupuis ruled in The Herald News and Gannett’s favor on all counts; on a fifth count of attorney-client privilege, the judge ruled the only records not to be released were communications between the city’s lawyers in matters of legal advice.

Dupre rejected the city’s counter cross motion in its entirety.

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In her ruling, Dupuis noted that the city’s interpretation of case law was “tenuous at best,” and that several of the city’s attorneys' arguments to withhold documents, including the separation agreement “were wholly unsupported by legal citation.”

The city, according to Dupre, “has not met its burden to overcome the statutory presumption in favor of an award of fees and costs to the plaintiff.” The judge ordered Gannett to file any motions for attorney fees with the court.

Gannett’s attorney Zack Kleinsasser, of Boston-based Greenberg Traurig, offered to settle with the city for $127,626, below the firm's estimated $150,000 bill, and avoid further court action to recover the legal action’s costs and fees.

Rumsey rejected Kleinsasser’s offer, countering with $25,000, which Gannett’s attorney declined.

First Amendment Coalition says Herald News' court victory is a ‘public records win’

Attorney Justin Silverman, executive director of the New England First Amendment Coalition, said the lawsuit and its outcome is “certainly a public records win, and sends a very strong message that you can’t just withhold records because there was some private agreement with the confidentiality clause.”

“It no way supersedes our right to know,” said Silverman. “There are a lot of big parts to this ruling and affirms the public right to know. It sends a strong message to Fall River that they can’t just withhold records because they want to. They must abide by the public records law.”

Silverman noted that states all have their own unique public records laws, and some protect the public’s right to know better than others.

“I can say that across the board there continues to be a difficulty for the general public, as well as newsrooms, bringing lawsuits for many reasons, and not the least of which there is often a lack of financial resources to bring these cases to court and to ensure the law is followed and to make sure the information is disclosed,” said Silverman.

However, Silverman said, here in Massachusetts, there does seem to be gradual progress with more newsrooms inclined to bring public record lawsuits, in part because a recent change in the law allows a plaintiff in public records cases to recoup their attorney's costs.

“But the big picture here is it is very difficult to bring these cases, but in Massachusetts we are seeing more of them,” said Silverman.

Earlier this year in Worcester, the Telegram & Gazette, after a three-year battle with the city to obtain records of police misconduct, reached a $180,000 settlement plus $5,000 in punitive damages.

Lawyers for the Telegram & Gazette sought $217,000 before the settlement.

This article originally appeared on The Herald News: Fall River facing steep legal bills, appealing public records lawsuit