Judge denies request for information on Steven, O’Donnell wiretaps

A federal judge on Friday denied The Wichita Eagle’s request for information about government wiretaps of Brandon Steven and Sedgwick County Commissioner Michael O’Donnell.

In 2015, the federal government intercepted the men’s communications with five current or former employees of The Eagle or its parent company. The wiretapping came to light last month when the government notified The Eagle employees, along with dozens of other Wichitans, that their electronic communications with the two had been intercepted.

As part of its argument, The Eagle contended that it is entitled to “call logs” under the law and to “intercepted communications, applications and orders in the interest of justice.”

The Eagle argued that the wiretaps occurred nearly two years ago and are no longer secret. Now that the investigation is known, “it is disingenuous for the government to leave the public’s understanding of the situation to rumor and innuendo.”

The U.S. Attorney’s Office opposed The Eagle’s request, saying disclosing the information would jeopardize an ongoing investigation.

Brandon Steven has said he thinks the investigation involves high-stakes poker and his attempts to open a casino in southeast Kansas. O’Donnell has said he has no idea why his calls were intercepted.

In his ruling, Judge Eric Melgren noted “the posture of this case is unusual — hardly any precedent exists” of someone seeking disclosure before an indictment has been filed.

While acknowledging that The Eagle’s arguments have merit, Melgren’s ruling stated that the newspaper “is not wrong for wanting to know more, they are just too early.”

In denying the request for information, Melgren wrote “interference with an ongoing investigation can hardly be said to be in the interest of justice.”

“Justice can only be served when the Government is allowed to investigate alleged wrongdoing to the fullest,” he continued. “At this time, the Court is unwilling to interfere with such an investigation.”

In his conclusion, Melgren noted, “although presently unconvincing, (The Eagle’s) concerns are far from trivial.”

If individuals are indicted or the investigation ends, he wrote, the arguments for disclosure will be more persuasive. But he questioned how anybody whose calls have been intercepted will know when that time has arrived.

“At the hearing on this motion, the Court was unable to find a suitable answer to that question,” he wrote.

Attorney Lyndon Vix, who argued the case for The Eagle, said that while he had hoped the judge might release some information, such as an “inventory” of calls that The Eagle argued the government was required to include with the letters it sent, he was satisfied that the newspaper’s arguments had been given a fair hearing.

“I feel like the judge did carefully consider all our arguments and found them to have merit with regard to the need for information,” Vix said.

The statute gives judges the discretion to withhold information to protect active investigations, Vix said, and “he knows more about that information than we do. It’s hard to argue with that.”

“The judges are going to be very careful to protect investigations.”

This story was originally published March 17, 2017 at 7:15 PM with the headline "Judge denies request for information on Steven, O’Donnell wiretaps."