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In reversal, judge rules City Hall subpoenas can remain secret

Federal subpoenas served on Mayor Martin J. Walsh’s administration can remain secret because of an ongoing grand jury investigation, a state judge ruled Tuesday.
Federal subpoenas served on Mayor Martin J. Walsh’s administration can remain secret because of an ongoing grand jury investigation, a state judge ruled Tuesday.(Keith Bedford/Globe Staff/File)

A state judge reversed his initial order and ruled Tuesday that federal subpoenas served on Mayor Martin J. Walsh’s administration can remain secret because of an ongoing grand jury investigation.

Suffolk Superior Court Judge Robert N. Tochka based his decision on a confidential memorandum from law enforcement officials arguing that public disclosure of subpoenas and other documents could impede an ongoing federal investigation.

The ruling came in response to a public records lawsuit filed in May by The Boston Globe. The newspaper sought subpoenas and any records provided to the US attorney’s office amid a federal investigation into whether city officials illegally forced businesses to hire union workers.

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Tochka initially ruled in the Globe’s favor, issuing a provisional order that would have required Walsh’s administration to release the subpoenas and other documents. But the judge gave US prosecutors two weeks to object, and on Friday, law enforcement officials filed a confidential memorandum.

“This court concludes, based on the reasons articulated in the memorandum, that the city has now met its burden of showing that complying with the Globe’s request would compromise a grand jury investigation,” Tochka wrote in the two-page decision.

The law enforcement memorandum will also remain confidential under the ruling and has not been shown to lawyers for the city or the Globe. The secrecy troubled Justin Silverman, executive director of the New England First Amendment Coalition.

“There’s something wrong when a court strongly endorses transparency and declares records to be public, just to later allow those records to be withheld for secret reasons,” Silverman said in an e-mail.

The US attorney’s office declined to comment.

In a statement, Walsh’s spokeswoman, Laura Oggeri, said, “The city respects the judicial process and will comply with the order of the court.”

The Walsh administration has declined to say whether 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. The mayor will not say whether he was called to appear before the grand jury or whether he testified. The administration also has not disclosed how many city officials have appeared before the grand jury, which last month indicted Kenneth Brissette, the city’s director of tourism, sports, and entertainment.

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Brissette, who has pleaded not guilty, is accused of withholding city permits in 2014 from the 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 Brissette’s indictment.

Recipients of grand jury subpoenas are not bound by the secrecy rules for prosecutors. On Monday, the House of Representatives confirmed it got a subpoena from US prosecutors investigating state Senator Brian A. Joyce, a Milton Democrat.

Authorities are investigating whether Joyce illegally used his public office for personal gain. In response to questions about the probe, the House’s chief legal counsel, James C. Kennedy, said in a statement that the House “received a grand jury subpoena from the United States attorney’s office requesting certain records relating to an ongoing investigation of a member of the Senate. The House of Representatives is cooperating fully with the United States attorney’s office.”

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Walsh has vowed to usher in a new era of transparency, but his administration has not revealed the scope of the federal probe. The Globe filed a request April 1 for the subpoenas and any records provided in response. The city rejected the request April 11, without confirming if it had received 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 to the state supervisor of records, who ruled April 22 that the city had failed to justify withholding records. Tochka’s ruling trumped the supervisor’s decision.


Andrew Ryan can be reached at andrew.ryan@globe.com. Follow him on Twitter @GlobeAndrewRyan.