In re: Motion for Records of Intercepted Electronic Communications
MEMORANDUM AND ORDER denying 1 Motion to Inspect. Signed by District Judge Eric F. Melgren on 3/17/2017. (cm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
IN THE MATTER OF THE
INTERCEPTION OF ORAL
COMMUNICATIONS OF BRANDON
STEVEN AND MICHAEL O’DONNELL
Case No. 17-mc-104-EFM
MEMORANDUM AND ORDER
Sometime between May 14, 2015, and July 1, 2015, several Wichita Eagle employees, as
well as an employee of the McClatchy Company,1 spoke on the phone with either Brandon
Steven—a prominent Wichita businessman—or Michael O’Donnell—a Wichita politician. On
February 1, 2017, the Wichita Eagle and its employees (“the Movants”) each received a letter
from the United States Department of Justice, informing them that those phone calls had been
intercepted pursuant to an investigation involving wiretaps on Steven and O’Donnell’s phones.
The Movants now move the Court for an order to disclose both the content of their intercepted
communications in addition to the application for and order granting the wiretaps (Doc. 1). For
the reasons stated below, that motion is denied.
Factual and Procedural Background
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
The McClatchy Company is the Eagle’s parent corporation.
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”).2 Accordingly,
from May 14, 2015, through June 13, 2015, the Government intercepted Steven’s phone calls.
During that period, Steven spoke on the phone with Carolyn Rengers of the Wichita Eagle. And
from June 3, 2015, through July 1, 2015, the Government intercepted O’Donnell’s phone calls.
During that period, O’Donnell spoke on the phone with Sherry Chisenhall, Bryan Lowry, and
Dion Lefler, all of the Wichita Eagle. O’Donnell also spoke on the phone with Lindsay Wise of
The McClatchy Company.
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:
This is to inform you pursuant to Title 18, United States Code, § 2518(8)(d) that
you were either named in an order and/or application made in the District of
Kansas authorizing the interception of wire, oral and/or electronic
communications or were a party to an intercepted communication.
For the above number, communications were intercepted between [May 14 or
June 3], 2015, and [June 13 or July 1], 2015.
This notice does not mean that you are being charged in court with anything. This
is simply a notice which the law requires we send to you. It only means that you,
or someone using a telephone subscribed to you, were intercepted talking with a
person using the telephone number listed above.
18 U.S.C. §§ 2510, et seq.
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.
A. Status of the Movants
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:
Within a reasonable time but not later than ninety days after . . . the termination of
the period of an order [allowing the interception of communications] or
extensions thereof, the issuing or denying judge shall cause to be served, on the
persons named in the order or the application, and such other parties to
intercepted communications as the judge may determine in his discretion that is in
the interest of justice, an inventory . . . .
That subsection further provides that upon the filing of a motion, the Court
[M]ay in his discretion make available to such person [who had been provided an
inventory] or his counsel for inspection such portions of the intercepted
communications, applications and orders as the judge determines to be in the
interest of justice.
Under the plain reading of the statute, then, an inventory must be sent to those named in the
order or application related to intercepted phone calls. In other words, the targets of the wiretaps
must be notified. But under the statute, for non-targets whose communications were incidentally
intercepted, notification is only required “as the judge may determine in his discretion that is in
the interest of justice.” The Movants pointed out that, given this statutory framework, they are
more than inconsequential interceptees because they received notice under § 2518(8)(d).
Obviously, the Movants contend, their conversations are significant to the Government’s
investigation because a judge determined that it was in the interest of justice that they be served
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
The registered or identified subscriber to that number [of any interceptee] is given
an inventory notice, despite their status, despite the length of the interception,
despite whether it’s privileged, non-privileged, pertinent, or non-pertinent, they’re
given the inventory notice.
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
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.”3
But the Government’s practice of sending notice to all interceptees
means that there was no finding that it was in the interest of justice that the Movants receive
notice. Contrary to the Movants’ earlier belief, there is nothing to suggest that there is anything
especially pertinent about the Movants’ intercepted communications. So the Court is faced with
a motion by third parties whose calls were intercepted, but who at least presently have no good
reason to believe that they were targets—or even persons of interest—in the underlying
B. The Movants’ Requested Disclosures
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 the judge determines to be in the interest of justice.”4
18 U.S.C. § 2518(8)(d).
18 U.S.C. § 2518(8)(d).
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:
Duplicate recordings may be made for use or disclosure pursuant to the provisions
of subsections (1) and (2) of section 2517 of this chapter for investigations. The
presence of the seal provided for by this subsection, or a satisfactory explanation
for the absence thereof, shall be a prerequisite for the use or disclosure of the
contends of any wire, oral, or electronic communication or evidence derived
therefrom under subsection (3) of section 2517.5
Section 2518(8)(b) similarly governs the management of applications and orders.
subsection mandates that “[a]pplications made and orders granted under this chapter shall be
sealed by the judge.”6 That subsection further provides that “[s]uch applications and orders shall
be disclosed only upon a showing of good cause before a judge.”7
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 § 2517,8 as required by § 2518(8)(a),
which governs the management and disclosure of intercepted communications. Similarly, in
18 U.S.C. § 2518(8)(a).
18 U.S.C. § 2518(8)(b).
18 U.S.C. § 2518(8)(b).
While § 2518(8)(a) governs the management of intercepted communications, § 2517 lists circumstances
in which disclosure of those communications is authorized.
seeking the application and order, the Movants would have to show good cause, as required by
§ 2518(8)(b), which governs the management of applications and orders. And even if the
Movants could make these showings, the Court would still have to determine that disclosure is in
the interest of justice, pursuant to § 2518(8)(d).
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.9 Sections 2518(8)(a)-(b), the Movants argue, apply to members of the public,
but not to notified interceptees. Accordingly, the Movants argue that the framework is simple: if
the Court determines that disclosure is in the interest of justice, then it has the discretion to grant
the Movants’ motion.
Assuming without deciding that the Movants’ less-onerous burden
applies, the Court still finds that disclosure is not in the interest of justice at this time.10
The Movants’ arguments for disclosure can generally be placed into two categories:
public and private interests.11 The Court will consider these interests in turn.
In re Warrant Authorizing Interception of Oral Commc’ns, 673 F.3d 5, 7 (1st Cir. 1982) (noting that
§ 2518(8)(d) “clearly authorizes the district court to order that documents be disclosed to an intercepted party.”).
The Movants proceeded under the assumption that “interest of justice” was a less-onerous burden than
the “good cause” standard found in § 2518(8)(b). The Court is not so sure, but need not decide that issue at this
Two of the Movants’ factors relate to their impression that, based on the language of § 2518(8)(d), a
judge had already determined that it was in the interest of justice that they be notified. Those factors related to
minimization and the fact that notification implied that their calls were significant to the investigation. But these
factors are of little import in light of the Government’s revelation that its practice was to send notice to every
interceptee, even if the call was minimized or insignificant. Given this fact, the Movants have no reason to believe
that their calls were significant or improperly minimized, and disclosure on these grounds would be nothing more
than a fishing expedition.
1. Public Right to Know
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.12 The general consensus is that Title III
carries a statutory presumption against disclosure that outweighs any asserted right to judicial
documents either under the common law or the First Amendment.13
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.
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.
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
See In re N.Y. Times Co. to Unseal Wiretap & Search Warrant Materials, 5773 F.3d 401 (2d Cir. 2009);
In re Applications of the Kan. City Star, 666 F.2d 1168 (8th Cir. 1981).
In re N.Y. Times, 577 F.3d at 408-11; In re Kan. City Star, 666 F.2d at 1175-77.
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.14 Justice can only be served when the Government is allowed to
investigate alleged wrongdoing to the fullest. At this time, the Court is unwilling to interfere
with such an investigation by ordering that the Government start disclosing information related
to an open investigation.
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.15
See Stoddard v. United States, 710 F.2d 21, 23 (2d Cir. 1983) (affirming the decision not to disclose
wiretap information where the court “considered both [the movant’s] arguments as to the need for disclosure and the
harm that such disclosure might work in the context of a continuing homicide investigation.”).
In re Persico, 362 F. Supp. 713, 714 (E.D.N.Y. 1973) (denying a movant’s motion for disclosure where
“disclosure at this times [sic] could jeopardize the continuing investigation, and it would serve no interest of justice
not better served by delaying disclosure until after indictment or after abandonment of the investigation.”)
2. Private Right to Know
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
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.16
And contrary to the Movants’ claim, disclosure in not implicit in the statute; rather, there is a
statutory presumption against disclosure.17 That presumption exists even absent a government
claim to confidentiality, because “the protection of privacy was an overriding congressional
concern in the enactment of Title III.”18 And that privacy interest extends beyond non-targets
who received notice under § 2518(8)(d).
Applications and orders related to wiretaps are
extremely detailed, and their disclosure could reveal a substantial amount of detail about the
investigation and the targets themselves. Such a disclosure would be inappropriate, especially
here, where the investigation is still ongoing and no indictments have been brought. The Court
recognizes the Movants’ privacy interests, but also must weigh them against the privacy interests
of others involved in the investigation.
At this time, the Movants’ interest in the sought
information is not compelling enough to warrant 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
Stoddard, 710 F.2d at 23.
In re New York Times, 577 F.3d at 407 (citing Nat’l Broadcasting Co. v. U.S. Dep’t of Justice, 735 F.2d
51, 53 (2d Cir. 1984)) (noting that “Title III created a strong presumption against disclosure of the fruits of wiretap
In re Kan. City Star, 666 F.2d at 1175 (internal quotation marks omitted) (quoting Gelbard v. United
States, 408 U.S. 41, 48 (1972)).
basic fairness of the criminal trial and the appearance of fairness so essential to public
confidence in the system.”19 The Court has noted that at some time in the future, either after
individuals are indicted or the investigation has ended, the Movants’ arguments for disclosure
will be much more persuasive. But how are the Movants—or anybody whose calls have been
intercepted—to know when that time has arrived? At the hearing on this motion, the Court was
unable to find a suitable answer to that question.
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.20 Outside of regularly
renewing this motion—which could prove to be a costly endeavor—it is unclear how the
Movants would ever know when they might be able to access their communications that the
government intercepted. The Court is troubled by the possibility of innocent persons having
their communications intercepted, and finding themselves unable to find out what was
intercepted or why. As it is currently drafted, Title III might not provide an adequate recourse
for people in the Movants’ position. And while that is a problem that the Court need not address
today, it is a problem just the same.
Press-Enter. Co. v. Sup. Ct. of Cal., Riverside Cty., 464 U.S. 501, 508 (1984).
18 U.S.C. § 2518(8)(a)-(b),(d).
IT IS THEREFORE ORDERED that the Movants’ Motion to Inspect (Doc. 1) is
IT IS SO ORDERED.
Dated this 17th day of March, 2017.
ERIC F. MELGREN
UNITED STATES DISTRICT JUDGE
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