This afternoon, the First Assistant District Attorney of the Northwestern District, Steven E. Gagne, released a report of findings regarding the insufficiently redacted transcript by the Hopkinton Police Department.
The Northwestern District Attorney’s Office (“NWDAO”) was referred the case by the Middlesex DA’s office, who stepped aside due to their involvement in the indictment of former Deputy Chief of Police Jay Porter.
On January 19, 2024, Hopkinton police, through their public relations agency, released the name, birthday, college, and profession of Porter’s alleged victim. The victim’s name was part of an interview transcript produced by Kroll Investigative Services of former Hopkinton police sergeant Timothy Brennan, who was found to have known about the victim’s allegations for years, but by request of the victim did not disclose it to his superior officers. Presumably based on the Kroll report, Chief Joseph Bennett subsequently made a recommendation to terminate Brennan, and the Select Board did so on February 8 in a 4-1 decision.
The NWDAO’s report included a Timeline & Findings section in which they recapped the events that led up to the release. DA Gagne stated that there were many parties who could have and should have seen the unredacted portions, but were “negligent”. These include the stenographer working for Kroll, Kroll investigators Daniel Linskey and Monica Monticello, the town’s labor attorneys Mirick O’Connell, town counsel Harrington Heep LLP, Town Manager Norman Khumalo, Chief Bennett, and the Select Board. Notably, the report does not mention Select Board member Amy Ritterbusch, who through her social media accounts amplified the town’s release.
“Notwithstanding the numerous missed opportunities to avert this mistake, the evidence establishes that this was an unintentional and regrettable oversight, one that understandably caused tremendous distress to the victim,” reads the report.
Also in the report: “The public relations consultant uploaded the exhibits to the “News Blog” [hopkintonpdnews.com] after the hearing concluded on the evening of January 19, 2024, accompanied by the following note: “Chief Bennett has released these documents following multiple public records requests and amid significant public interest, inquiry and media reporting on the matter.” Chief Bennett did not personally upload the documents to the “News Blog” although he did endorse the idea.“
Gagne said that “Within 24 hours of the documents being made available to the public, the Town was notified that the transcript of Sergeant Brennan’s interview was insufficiently redacted and instructed the Town’s public relations consultant to remove it from the “News Blog.” In fact, HopNews has independently verified that the unredacted transcript was publicly available at least 48 hours later, and by that time had been downloaded and disseminated by several news organizations.
But DA Gagne was circumspect about whether anyone could be held criminally liable in the matter. He cited two applicable statutes:
MGL Part IV, Title I, Chapter 265, Section 24C, which reads in part:
That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape … shall be withheld from public inspection
MGL Part IV, Title VII, Chapter 31, Section 97D is similar, but applies to law enforcement organizations and carries stricter penalties, including the threat of imprisonment for releasing records.
Gagne concluded that the wording of 97D is narrower in scope and potentially would not apply to the Brennan interview transcript, because the wording refers to “reports of rape or sexual assault”, which the Brennan transcript was not. He concluded that if any statute were to apply, 24C would be the only one.
The report pointedly states that “there is no question that the Town “published, disseminated or otherwise disclosed the Brennan transcript by virtue of uploading it to the “News Blog” where any visitor to the website could download a PDF version of the transcript without payment or password.“
But Gagne was doubtful that the type of intent required to violate the statues existed, though he conceded that “The statutes themselves do not specify whether a person must act knowingly, intentionally, maliciously, recklessly, or with some other form of “mens rea” before criminal liability will attach.” (Mens rea is a Latin term used in the legal field that translates to “guilty mind.” It refers to the mental state of a person at the time they commit a crime).
“Although the release of the Brennan transcript was done knowingly through the collective efforts of several persons, no one involved in the process realized (until it was too late) that two necessary redactions had been missed. In other words, even though the overall release of the entire transcript was done knowingly, the specific disclosure of the victim’s name within the transcript was not done knowingly. As stated earlier, this was an unintentional oversight attributable to negligence rather than recklessness or malice. In my estimation, it would not be possible to prove (regardless of whether the legal standard were mere probable cause or the higher “beyond a reasonable doubt” standard) that anyone knowingly or intentionally violated either of the statutes cited above,” said the report.
Gagne concluded his report with this. “Ideally the Town of Hopkinton and its counsel will implement precautionary measures to ensure this sort of mistake does not repeat itself. However, for the reasons set forth above, I find that criminal prosecution of those involved in the transcript’s release is not warranted.“
>> RELATED: Read the DA’s report
Just because it doesn’t rise to the level of criminal prosecution does not mean that the chief, Board, and others should not have some accountability for the harm they caused.
It’s nice they want to find a way to keep it from happening again, but who is going to stand up and own this mistake and have some action taken.
Where is a statement from Kroll? How much money did they take from this town just to fail it.
“I am so bethumped for words i know not what to say.”
It looks like Mr. Gagne clearly laid out a case for a civil suit.
More questions than, frankly, any answers.
It seems that the State Police investigator working with the DA’s office only spoke to Town officials, elected and appointed: the Town’s contractors, i.e., Kroll and JGPR; the town’s labor attorney Mirick O’Connell; town counsel Harrington Heep LLP; Town Manager Norman Khumalo; Police Chief Joseph Bennett; and members of the Select Board. I see no mention of anyone else.
I personally reached out to the entire Select Board on Saturday, January 20th, at 10:30 a.m. to let them know that the personal identifying information of the survivor, AND her children, was not properly redacted. Nobody from the State Police or the DA’s office contacted me. Others also contacted the Town that morning to lodge their objections to the PII being released without the survivor’s permission. No mention of them. Were they interviewed?
The timeline, as noted in the HopNews coverage above, does not jibe at all. Where is the documentation of the exact time when the Town’s website platform actually listed the post going live, and then being taken down, from the website contractor’s (revize) content management system (CMS) logs?
Just general times are given, which are wrong, as noted in the excellent HopNews coverage of this ongoing sorry saga.
While it says all of the parties should have been aware of the PII not being properly redacted, this report does not specify who did the final review of the post that went up, along with the attachment, or if those materials were reviewed at all.
Was it the two sets of lawyers? The PR firm? The Town Manager? The Select Board?
Given the obviously contentious nature and possible litigation coming out of the Loudermill Hearing, how come a thorough vetting was not done?
I worked in public relations and marketing for 45 years — NEVER, EVER did anything involved in a legal affair go out without legal counsel review, and then a thorough check of all materials by the PR firm’s senior account executives AND the client (in this case, the Town Manager and/or Select Board).
So why was the release rushed out on a Friday night…other than to try to pile on after the hearing to prove they were right?
If there was so much interest in the Kroll Report, why wasn’t it released PRIOR to the Loudermill Hearing so the public had full knowledge?
Why wasn’t Bennett’s portion of the report included (and has not been released publicly to this day)?
I was optimistic when I heard that the investigation was sent to the Northwestern Counties DA. I looked at the DA’s website and saw that his bio says he made his career in part on sexual assault cases. I thought if anyone would be fair, it would be this office.
I was wrong.
This is just more of the same shell game the town and its lawyers have been playing all along. Looking for any way to avoid any accountability. Looking for a scapegoat (thank you for your service, stenographer). Refusing to do absolutely anything.
One last point: Sgt. Timothy Brennan was dismissed supposedly for policy/procedure violations (but in actuality, because the Chief and the Town took a hit to their reputations). Who will be dismissed here? Oh yeah, the accountability caste system in this town says no one.
Foxes are guarding the chicken coop. So who’s guarding the foxes?
Understand exactly what this DAs office – at the behest of Middlesex County DAs office SAID – “we are not going to say that MIDDLESEX should prosecute town officials and a chief of police (after all we are all elected) HOWEVER – THE CHIEF AND THE TOWN. COULD NOT HAVE BEEN MORE NEGLIGENT IN VIOLATING VICTIM’S RIGHTS, THE DAMAGES ARE IMMENSE AND INARGUABLE, THE INVESTIGATION IS DONE AND HOPKINTON TAXPAYERS ARE GOING TO PAY THROUGH THE NOSE FOR THE RASH ACTS OF A ILL-EQUIPPED CHIEF.
Additionally, the Town has failed to inform the people of Hopkinton that within a week of the assault, each Board member received notification and demands for the production and preservation of materials from attorneys for the victims and – THE BOARD HAS ELECTED TO NOT RESPOND IN ANY MANNER – thereby increasing the damages already investigated and found, the interest and attorney’s fees etc. Head in the sand. Everyone in Town all is aware of this – are you? Get out your checkbooks and make it out to the BENNETT FUND.
Spot on, ZippyP. But just want to make sure everyone understands what you mean by “assault.” I think you mean to say that within a week of the Chief “assaulting” the victim by releasing her PII, the Board received preservation demands and subpoenas/documents requests (or whatever they’re called), and still has yet to prove said preservation or respond to said subpoenas/requests.
(I just don’t want people to think that you’re referring to the other assaults that the victim suffered 20+ years ago at the hands of former Deputy Chief Jay Porter.)
But that clarification aside, you make very fine points, sir! Hence, the LinkedIn comment to the Chief’s job posting for the Deputy Chief’s position warning potential applicants that they’d be crazy to apply for a job in this Town! With the reputation that this Town’s PD now has, and with the Select Board basically giving license to the Chief (meeting after meeting after meeting) to continue to attract more and more liability for us taxpayers (by, e.g, allowing the failure of a Chief to continue to serve as Chief, allowing the Chief to promote his besties who have known and highly concerning disciplinary records, etc.), I can only imagine the applicant pool we’re gonna get for Deputy Chief (and other police positions)! It’s just an endless cycle of liability.