I. PROCEDURAL HISTORY OF THE CASE
On July 29, 1975, upon the application of Donald F. Manno, an attorney for the United States Department of Justice, and an authorized "investigative or law enforcement officer" within the meaning of 18 U.S.C. § 2510(7), this Court entered an Order, pursuant to Section 2518, permitting the interception of certain wire communications; the interceptions were to be executed as soon as practicable, and were in no case to extend beyond twenty days after the Order was signed, 18 U.S.C. § 2518(5); the decree also contained the minimization clause required by Section 2518(5).
The Order directed Mr. Manno to report to the Court with respect to the progress of the surveillance on the fifth, tenth, and fifteenth days of the period.
The Government in fact began to intercept communications on July 31, 1975, and terminated the operation on August 12, 1975. Reports were furnished by the Government on August 4th, August 8th, and a Final Report was submitted on August 13th. On November 3, 1975, pursuant to Section 2518(8)(d), this Court caused to be served on forty-five persons, all of whom were either named in the July 29th Order, or were parties to intercepted communications, an inventory Order which recited (1) the fact of the entry of the wiretap authorization Order; (2) the date of the Order; (3) the period of authorized interception; and (4) the fact that wire communications were in fact intercepted during the period between July 31, 1975, and August 12, 1975. Movant, one of the forty-five persons upon whom the inventory was served, subsequently filed the motion for disclosure now before us.
II. THE CONTENTIONS OF THE PARTIES
A. The Service of the Inventory
Movant's first argument for disclosure centers on the failure of the Government to seek an order postponing the service of the inventory. Section 2518(8)(d) permits the judge to grant such postponement on an ex parte showing of good cause. Since the Government did not seek such an extension in this case, movant argues, it cannot now claim that secrecy is vital to the continued effectiveness of the grand jury investigation. Rather, he urges, by willingly allowing the information contained in the inventory to become known to movant and forty-four other persons, the Government has admitted that secrecy is no longer required. The Government knew, contends movant, that the service of the inventory would give all of those persons who were served standing to seek disclosure under Section 2518(8)(d), and the Government's claim of prejudice is therefore untenable.
We do not believe this argument is valid. Movant fails to discern the critical difference between the information contained in the inventory, and the far more comprehensive detail incorporated in the materials he now seeks to inspect. The inventory required by Section 2518(8)(d) need inform the appropriate parties only of the following: (1) the fact that the application was made and the order issued; (2) the date of that Order and the period of authorized surveillance; and (3) the fact that during the period interceptions were or were not made. This bare outline of information stands in marked contrast to the sweeping data which is contained in the application, the Order, and particularly, in the communications themselves. To cite just one aspect, 18 U.S.C. § 2518(1)(b) requires that the application for a wiretap order contain:
A full and complete statement of the facts and circumstances relied upon by the applicant, to justify his belief that an order should be issued, including (i) details as to the particular offense that has been, is being, or is about to be committed, (ii) a particular description of the nature and location of the facilities from which or the place where the communication is to be intercepted, (iii) a particular description of the type of communications sought to be intercepted, [and] (iv) the identity of the person, if known, committing the offense and whose communications are to be intercepted.
It is obvious that inspection of the application itself would provide movant with substantial knowledge which he presently does not possess; it would disclose the substantive basis of the criminal investigation then and now being conducted. Inspection of the Order and actual communications would further reveal the evidence upon which the investigation is based. It defies logic to claim that the Government cannot rightfully be concerned with secrecy, merely because it acquiesced in the service of the inventory. By the filing of his motion, movant has admitted that the information contained in the inventory is wholly insufficient to prepare adequately for a grand jury proceeding, a potential criminal prosecution, or a potential civil suit based upon illegal surveillance. Therefore, it is quite reasonable to argue, as the Government does, that while service of the inventory does not jeopardize the present grand jury investigation in any manner, the disclosure of the material requested by movant would virtually curtail that investigation.
Indeed, to find that the Government has waived its claim of prejudice would be tantamount to imposing a penalty for following the general mandate of Section 2518(8)(d). The intent of Congress, in requiring the service of the inventory, was to prevent the Government from engaging in electronic surveillance upon an individual without that individual ever learning of it, as is made crystal clear by the legislative history of this section:
[The] intent of the provision [requiring the inventory] is that the principle of postuse notice will be retained. This provision alone should insure the community that the techniques are reasonably employed. Through its operation all authorized interceptions must eventually become known at least to the subject. Senate Report No. 1097, 1968 U.S. Code Cong. & Admin. News p. 2194.