Lesson 5. Information Gathering January 27, 2004

ENV H 471: Winter 2004 1

Information GatheringInformation GatheringInformation Gathering

ENV H 471Environmental Health Regulation

Winter Quarter 2004

Lesson No. 5

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Lesson OverviewLesson OverviewLesson Overview

vWhat Information?

vLegal Issues with ObtainingInformation

vMethods

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Lesson ObjectivesLesson ObjectivesLesson Objectives

vKnow the types of informationrequired to document a problemor conditionvBe able to explain the major

techniques and processesroutinely used by environmentalhealth practitioners to obtaininformation

Lesson 5. Information Gathering January 27, 2004

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Lesson Objectives Lesson Objectives Lesson Objectives (Continued)(Continued)(Continued)

vDescribe the proper usage ofthe subpoena duces tecum andthe procedures for obtainingone

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What Information?What Information?What Information?

v Required Records/Informationn Those items required by enabling

legislation, i.e., statutes, codes andrules and regulation often specify thatcertain records must be maintained bya regulated industry and madeavailable to the administrative agency.

n They may also require that theadministrative agency establish andmaintain certain records.

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What Information?What Information?What Information?

v Evidencen Information which may be used at

some point as evidence in an admin-istrative, criminal or civil proceedingshould adhere to the Rules ofEvidence.

n These, plus certain legal precedents,govern not only what kind of informa-tion is needed, but also how it may beobtained and kept.

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What Information?What Information?What Information?

vEvidencen At a minimum, it is usually

necessary to have the followinginformation:ÿ Location of the Property;

ÿOwner of Record;

ÿ Legal Rationale for action; and

ÿ Facts of the Case/Incident.

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What Information?What Information?What Information?v Inappropriate Information

n Certain types of information should notbe contained in a case file.

n The "rules of evidence and relevance"may be helpful in judging whether aspecific item should be included.

n As a rule of thumb: any informationwhich would be clearly judged by thecourts as inadmissible in a legal actionprobably does not belong in a case file

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Obtaining InformationObtaining InformationObtaining Information

v Voluntary Disclosuren Information may be obtained in a

variety of ways and still be consideredvoluntary.

n Grad states that the voluntarydisclosure of information "creates nolegal problems.”

n However disclosure by the agency may

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Obtaining InformationObtaining InformationObtaining Information(Continued)(Continued)(Continued)

vCompulsory Disclosuren It may not be possible or practical for

an agency to commit the resourcesnecessary to continuously monitor theoperation of an industry or site.

n The owner/operator of the regulatedactivity can be required to maintainrecords of key items, conditions orprocesses (e.g., records of chlorination,BOD levels, and food temperatures).

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MethodsMethodsMethods

v Observationsn The principal means of identifying and docu-

menting a problem is for the inspector to see it.ÿ He/she must be able to recognize the problem

(deviation from code or standard, unsafe practice, etc.).

ÿ He/she must be able to describe it in terms that willlater be understood by each of the parties concerned(industry, supervisor, courts, etc.).

ÿ He/she must document its existence -- date, time, place,circumstances and persons present.(photographs can be invaluable)

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Methods Methods Methods (Continued)(Continued)(Continued)

vTests and Samples:n Time, temperature, light and noise levels are

common physical factors which can bemeasured on site.

n So can a number of situations involvingchemical concentrations, e.g., CO levels,chlorine concentration in water, and certainother gases in air.

n Most biological, and certain physical andchemical, problems require the collection andlaboratory analysis of samples.

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Methods Methods Methods (Continued)(Continued)(Continued)

v Tests and Samples:n In Situ Tests. For tests conducted at the site of an

investigation, the legal requirements include:ÿ The test used be accepted --

l by common sense (e.g., a thermometer for temperature),

l by testing and practice (e.g., Standard Methods for theExamination of Water and Wastewater), or

l by theoretically consistent design;

ÿ The tests must be conducted under proper circumstances;

ÿ Any instrumentation must be properly calibrated;

ÿ The tests must be carried out in accordance with acceptedpractice; and,

ÿ The results must be recorded.

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Methods Methods Methods (Continued)(Continued)(Continued)

v Tests and Samples:ÿ The further a test is from an obvious

common sense standard, the more likely itis to be challenged, and

ÿ therefore, the greater is the degree ofdocumentation of its appropriateness,reliability and accuracy that will berequired.

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Methods Methods Methods (Continued)(Continued)(Continued)

v Tests and Samples:n Sample Collection and Analysis:

ÿ All of the above requirements are equally true.

ÿ In addition there is chain of custody requirementl the results in the record are the results of the sample

collected, and further

l that the sample was indeed analyzed (within the properlimits of time, temperature, accuracy, procedures, etc.)and

l that it was not contaminated, tampered with or otherwisemade unsuitable for use as evidence.

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Methods Methods Methods (Continued)(Continued)(Continued)

v Industry Recordsn Requiring Industry to Maintain Records

ÿ Constitutional Challenges

n Program Requirements.ÿ Know what information is needed;ÿ Be able to collect it, i.e., the industry must be able to

supply the data;ÿ Be able to monitor the reports to ascertain:

l all the regulated industries are reportingl that the reports are completel the data is reliable;

ÿ Be able to verify the data through periodic inspectionsor other methods.

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Methods Methods Methods (Continued)(Continued)(Continued)

v Industry Recordsn Failure to Report. The simple act of failing to file a required

report should be immediately obvious to the regulatingagency and permits the agency to choose from severalenforcement options, e.g., revocation of the license, obtaina search warrant, subpoena of records, etc.

n Reliability of Required Records/Reports. A more difficultproblem for the agency is identifying inaccurate orunreliable information. This requires close scrutiny of allsubmitted reports and considerable experience with theregulated industry

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Methods Methods Methods (Continued)(Continued)(Continued)

v Subpoena duces tecumn Most regulated industries, businesses or

other activities maintain records of theiroperation.

n In some cases the administrative agencycan/should require that certain records bekept and made available to it.

n The subpoena duces tecum is a court orderto produce the specified documentarymaterial.

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Methods Methods Methods (Continued)(Continued)(Continued)

v Subpoena duces tecumn Nature/Authority. The subpoena

should not be considered as a routineinvestigatory tool.ÿ In the first place it is usually not needed,

and in the second,

ÿ not all administrative agencies have thelegal authority to use it.

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Methods Methods Methods (Continued)(Continued)(Continued)

v Subpoena duces tecumn Requirements/Use. The material must be relevant

to the purpose of the agency, i.e., it can not beused as a "fishing expedition",ÿ must be confined to certain specified data concerning an

operation which the agency has specific authority toregulate.

ÿ However, you do not have to wait until you have filed alegal action before you can use the subpoena ducestecum.

ÿ An agency may use it to discover and produce informa-tion necessary to determine whether further legal actionis warranted.

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QuestionsQuestionsQuestions

??

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Assignment for Lesson 6Assignment for Lesson 6Assignment for Lesson 6

v Grad: Chapter 7 -- Searches andInspections

v Statutes: Various sections pertaining toinformation gathering

v Case Briefs Due: February 3, 2004n Reading # 14 - Frank v. Maryland (Group A)

n Reading #15 - Camara v. San Francisco andSee v. Seattle (Group B)

n Reading # 16 - United States v. Thriftimart,Inc. (Group C)

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Assignment for Lesson 6Assignment for Lesson 6Assignment for Lesson 6

v Case Briefs Due: February 5, 2005n Reading #17 -- Marshall v. Barlow's, Inc.,

[Group A]

n Reading #18 -- Northwest Airlines, Inc.,[Group B]

n Reading #19 -- California v. Salwasser,[Group C]

n Reading #20 -- Seattle v. McCready, [GroupA]

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CasesCasesCases

vU.S. v. Tivian Laboratories, Inc.,589 F.2d. 49 (1978).

vU.S. v. Ouelette, 11 ERC 1350(1977)

vGeneral Motors Corp. v. Directorof NIOSH, 636 F.2d. 163 (1980).

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