ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.
Sometime between May 14, 2015, and July 1, 2015, several Wichita Eagle employees, as well as an employee of the McClatchy Company,
On May 14, 2015, this Court authorized the interception of telephone communications of Brandon Steven, a prominent Wichita businessman. On June 2, 2015, this Court authorized the interception of telephone communications of Michael O'Donnell, who at that time was a Kansas State Senator and is currently a Sedgwick County Commissioner. The wiretaps were authorized under Title III of the Omnibus Crime Control and Safe Streets Act ("Title III").
On February 1, 2017, the Wichita Eagle, Rengers, Chisenhall, Lowry, Lefler, and Wise each received a letter from the United States Department of Justice, informing them that those phone calls had been intercepted pursuant to the wiretaps on Steven and O'Donnell's phones. The headings noted that the letters regarded the phone number of either Brandon Steven or Michael O'Donnell (depending on which call the letter corresponded to). The body of the letter read, in full:
Please do not call this office, as we are unable to give out any further information. The Government's investigation that gave rise to the wiretaps is still ongoing. No indictments have been filed. Nobody, including any of the Movants, has been charged with a crime. And there is no evidence from which the Movants would reasonably believe that they are targets of the investigation or will likely face any charges.
The Movants now move that the Court disclose to them documentation of their intercepted phone calls as well as the application for and order granting the interceptions. The Government, as an interested party, filed a response in opposition to the Movants' motion.
Before considering the Movants' substantive arguments, the Court must clarify their status as it relates to the interception of Steven's and O'Donnell's communications.
The Movants received notice that their calls had been intercepted under 18 U.S.C. § 2518(8)(d), which provides in relevant part:
That subsection further provides that upon the filing of a motion, the Court
Under the plain reading of the statute, then, an inventory must be sent to those
The Movants' understanding of the situation is based entirely on the plain language of § 2518(8)(d), and their deduction is logically sound. If the statute were followed verbatim, then the Movants would only receive notice if they were targets of the investigation, or if a judge had determined they must be notified in the interest of justice. But at the hearing on the Movants' motion, the Government revealed that in practice, it does more than the statute requires. Rather than only notifying those required by § 2518(8)(d), the Government's practice is to send notice to every single individual whose calls have been intercepted. As the Government stated
Given its practice of sending notice to every single interceptee, then, the Government contends that there can be no inference that the Movants were more than inconsequential interceptees. But in consideration of its pending investigation, the Government opted not to elaborate further.
All told, the Movants are interceptees who were provided notice that their calls had been intercepted. Although the notice was not statutorily required, the letter indicated that the Movants were being notified pursuant to § 2518(8)(d). As such, the Movants are entitled to move the Court to "make available ... such portions of the intercepted communications, applications and orders."
The posture of this case is unusual — hardly any precedent exists where a non-target, notified interceptee seeks disclosure under § 2518(8)(d) before an indictment has been filed. With such a dearth of relevant authority, a substantial portion of the parties' briefing was devoted to determining the applicable standard that the Court is to apply.
Section 2518(8)(d) allows a notified interceptee to file a motion asking the Court, in its discretion, to make available both intercepted communications as well as applications and orders for the interceptions. That subsection provides that the Court may make such documents available "as
Those two categories of documents — intercepted communications and applications and orders — are accounted for elsewhere in § 2518(8). Section 2518(8)(a) governs the management of intercepted communications, and provides that the contents of intercepted communications "shall be made available to the judge issuing such order and sealed under his directions." That subsection further provides:
Section 2518(8)(b) similarly governs the management of applications and orders. That subsection mandates that "[a]pplications made and orders granted under this chapter shall be sealed by the judge."
The Government's position is that § 2518(8)(d), which allows for this motion, must be read in concert with §§ 2518(8)(a)-(b). Put another way, although § 2518(8)(d) provides for a motion for disclosure of wiretap information, disclosure is still governed by §§ 2518(8)(a)-(b). Thus, in seeking the intercepted documents under § 2518(8)(d), the Movants would have to show that disclosure of those documents was required pursuant to § 2517,
Conversely, the Movants' position is that § 2518(8)(d) provides a route to disclosure in addition to those provided for in § 2518(8)(a)-(b). As notified interceptees, the Movants argue that § 2518(8)(d) plainly allows them to file a motion for disclosure without reference to any other subsection.
The Movants assert that disclosure is in the interest of justice because Brandon Steven and Michael O'Donnell are both prominent public figures in the Wichita community. The Movants do not go as far as to argue that they have a First Amendment or common law right to the disclosure of sealed materials as either individuals or members of the press. And for good reason: federal courts have rejected that argument.
Conceding that they do not have an absolute right to disclosure, the Movants still argue that the public's right to know should be a factor that the Court considers in using its discretion to determine whether disclosure is in the interest of justice. The Movants argue that the interest of justice would be advanced by a more complete understanding of the investigation. In addition, Movants note that Steven is a prominent businessman and O'Donnell represents the people of the community. In their respective capacities, both men deal with the public and rely to some extent on the public trust. Therefore, the Movants argue that the public would be better served with more information about the investigation of these two public figures. As the Movants' counsel stated, "the right to know is in the interests of justice. And I think that the community now has some information about an investigation that's giving rise to just speculation and rumor, and I don't believe that is in the interests of justice." Ultimately, he implored the Court to consider "whether releasing information is in the interest of justice more than hiding information" and challenged "the default position that we're always better off keeping as much secret as possible."
The Court agrees that all other things being equal, justice is better served when information is shared and not hidden. But at this stage of the investigation, all other things are not equal. The Movants ask the Court to consider the interest of justice. But justice includes enforcement of the United States Criminal Code. The Government has represented that its investigation is ongoing, and interference with an ongoing investigation can hardly be said to be in the interest of justice.
The Movants are not wrong for wanting to know more, they are just too early. If charges are ever brought, the Movants will have more access to information surrounding this investigation. Alternatively, if charges are not brought after what seems to be an unreasonable amount of time, the Movants may have a stronger argument for the disclosure in a renewed motion. But presently, just one month after receiving notice and while the investigation is still ongoing, the integrity of the Government's investigation outweighs the Movants' desire to inform the public about the specifics of the wiretap.
Aside from the targets' public status, the Movants advance more private arguments in support of disclosure. At times these claims mirror Fourth Amendment arguments, but in short, the Movants contend that their status as notified interceptees imparts on them a right to know more.
For example, the Movants note that they "have a liberty interest and a property right in their own private communications" and thus, upon receiving notice that their calls were intercepted have a right "to know which of their communications have been intercepted by their government, and to know the reasons their government has provided the Court to justify the interception of their private communications." The Movants also argue that such disclosure is dictated by fairness under the § 2518(8)(d). They assert that because the statute orders notification of certain interceptees in addition to targets, it is only fair that interceptees be given enough information to know that they are not, in fact, targets of the investigation. The Movants argue that such a disclosure is implicit in the statute.
As with their public interest argument, the Movants concede that there is no recognized right to disclosure under this theory, but ask the Court to consider their private interests in determining whether disclosure is in the interest of justice. While once again recognizing the Movants' legitimate concerns, the Court still finds that at this time, disclosure would not be in the interest of justice.
The Court acknowledges that the Movants have an interest in knowing which of their conversations the Government intercepted, and why it did so. Even though the law does not provide an absolute right to such disclosures, in most circumstances the disclosure of information furthers the interest of justice more than its concealment. But as noted above, the presence of an ongoing investigation leads the Court to the result that the interest of justice is best served by allowing the Government to investigate and enforce federal law.
Additionally, it is worth noting that the Movants are not the only individuals with privacy interests at stake. Notification under § 2518(8)(d) does not automatically trigger disclosure.
Taken together, the Movants' arguments about both public and private interests fail to convince the Court that disclosure is appropriate at this time. However, although presently unconvincing, the Movants' concerns are far from trivial. "Openness thus enhances both the basic fairness of the criminal trial and the appearance of fairness so essential to public confidence in the system."
Theoretically, the Government's investigation could end without charges ever being brought. In such a case, one could hardly expect the Government to simply announce that it was no longer conducting an investigation. And even if it wanted to, the Government is statutorily prohibited from disclosing wiretap information without a court order.
