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Judge rules subpoenas on City Hall should be public

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Boston Mayor Martin J. Walsh.

Mayor Martin J. Walsh's administration failed to make the case that federal subpoenas served on City Hall since Walsh took office should be withheld from the public, according to a Suffolk Superior Court ruling in a public records case brought by The Boston Globe.

Judge Robert N. Tochka's decision, dated Tuesday, allows two weeks for federal prosecutors to object to the public disclosure of subpoenas and related documents requested by the Globe under the state public records law. If the US Attorney's Office does not object, Tochka's ruling for the Globe will become final, and the city will be ordered to produce the documents, according to the ruling.


The newspaper's lawsuit, filed in May, followed a long back-and-forth over the documents waged amid a federal probe into whether city officials illegally forced businesses into hiring union workers.

"Even a minimal delay in access to public records is, as a matter of law, deemed to be irreparable harm," Tochka wrote. "The city, conversely, has failed to point to any harm it specifically will suffer" if the documents are released.

The six-page ruling directs the city to provide the judge's decision "to the appropriate agency" — presumably US Attorney Carmen Ortiz's office — to give prosecutors the opportunity to say whether the documents' disclosure would impede an ongoing investigation.

If prosecutors submit a response by the June 14 deadline, Tochka will schedule another hearing in the case.

A spokeswoman for Ortiz said by e-mail Wednesday afternoon, “We are reviewing the matter and will determine whether a response is appropriate.”

The Walsh administration said it referred the judge's decision to Ortiz.

"We have always held paramount the integrity of any ongoing investigations being conducted by law enforcement and, given the request the city would have received to keep such information confidential, we have asked the United States Attorney to provide guidance on if this may compromise the important work her office is doing," Walsh spokeswoman Laura Oggeri said by e-mail.


Oggeri provided a copy of a letter to Ortiz, which says "the city intends to comply with the court's order to produce documents unless your office responds prior to" the judge's June 14 deadline. The letter is signed by city Corporation Counsel Eugene O'Flaherty.

The Walsh administration has so far declined to say whether or not it has received federal subpoenas in the City Hall corruption probe, which has led to the indictment of the administration's top tourism official on an extortion charge.

A federal grand jury in May indicted Kenneth Brissette, 52, the city's director of tourism, sports, and entertainment, for allegedly withholding city permits in 2014 from the popular Boston Calling music festival until it hired union stagehands.

The indictment cited a second city employee — so far unnamed — who allegedly also told Boston Calling it needed to hire members of the International Alliance of Theatrical Stage Employees, Local 11.

The music festival's organizers in 2014 ultimately hired union members they did not want or need, according to the Brissette indictment.

The Globe filed a request to the city on April 1 for the subpoenas and any records provided in response. In general, federal prosecutors are bound by grand jury secrecy rules that do not apply to recipients of grand jury subpoenas. Prosecutors, however, often request that recipients not disclose that they have been served.

The city rejected the newspaper's records request April 11, without confirming whether it had received federal subpoenas, saying, "if the city were to receive a subpoena from law enforcement," the authorities would want the city to keep the documents confidential.


The Globe appealed the denial to the state supervisor of records, who ruled April 22 that the city had failed to meet the legal burden for withholding records from the public, and ordered the city to acknowledge within 10 days whether it had received any federal subpoenas.

The city, in response, affirmed its rejection and again refused to acknowledge whether it had received federal subpoenas. "The city maintains that such disclosure could interfere with an ongoing investigation and is simply unwilling to take that risk," the administration wrote at the time.

The Globe filed suit May 6, asking for a court order to compel the city to provide the documents. In his ruling, Tochka wrote that "while the city expresses legitimate concerns" about protecting the work of a grand jury, it offered no evidence to show that the release of documents "will impact a protected aspect of an actual grand jury investigation." The judge concluded that "absent further information from relevant law enforcement or investigatory officials, the Globe is entitled to injunctive relief."

Mark Arsenault can be reached at Follow him on Twitter @bostonglobemark.