Reports and Subpoenas

Authority for Reporting and Subpoenas

Most state and federal agencies that have significant regulatory powers may require reporting under the general grant of authority

If the agency has a limited grant of authority or does not have a regulatory role (CDC), they will need a specific authorization to require reporting

Subpoena power requires a specific grant of authority

First Party or Third Party Reporting

First party reporting is reporting about your or your businesses own activities Most of the book's discussion is about first

party reporting Can raise 4th & 5th amendment issues

Third party reporting is about other people Privacy issues, but no 4th and 5th amendment

issues

4th and 5th Amendment

Why are there no 4th and 5th amendment issues in third party reporting? Self-incrimination? Improper search?

Where does the silver platter doctrine come in? How far can the government go in using third

party reporting to avoid constitutional limits?

State Police Power Reporting

The first agency reporting requirements were promulgated by state agencies

Communicable disease reporting began in the colonies and was carried over to the state and city governments Reports of smallpox were critical to

quarantines and vaccination programs Third party reporting

Contemporary Third Party Reporting

Communicable diseases STIs Tuberculosis

Vital statistics and disease registries Child, spousal, and elder abuse Violent injuries, including gun shots Cash transactions over 10K What else?

What are the Privacy Issues?

What privacy issues are implicated by each of these types of reporting?

What about privilege issues? Can child abuse reporting be applied to

lawyers? Priests? Is there any medical privilege?

Whalen v. Roe, 9 US 589 (1977)

Required reporting of narcotics prescriptions by physicians and pharmacies Intended to develop data on abuse Also intended to collect data for prosecution

What are the privacy concerns of the patients? The court found this to be within the police

powers The government must avoid unneeded disclosure

Enforcement of Third Party Reporting

Governmental Loss or limitation of professional license Administrative fine Criminal prosecution There are few enforcement actions

Private Negligence per se claims Slightly different from Tarasoff claims

First Party Reporting

What is the purpose of the report? Is the report targeted at identifying illegal

behavior? Is the report overly burdensome? At federal level, does the report comply with the

paperwork reduction act?

Paperwork Reduction Act

Intended to require agencies to be more thoughtful about reporting requirements

Requires review by OMB Applies to most agencies, including independent

agencies OBM does not the authority to veto requests by

independent agencies

What is Covered?

Reports required of 10 or more people Also covers requirements to give information to

the public MSDS Food labels Hazardous materials inventories

Applies to investigations of a class of persons

Exceptions

Law enforcement investigations Civil lawsuits Adjudications Investigations of a single person or company

Standards

Is the information required for the agency's function?

Does it duplicate information collected by other agencies?

Is it overly burdensome?

Public Notice

If the data collection is part of a notice and comment rule, the Federal Register posting of the proposed rule serves as public notice The public may object through comments ORIA may also file comments for objections

If it is not part of a rule, there must be a separate posting and a period for public comment

ORIA Review

Can veto requests unless they are in a rule They can only comment on rules

Independent agencies can ignore the veto Executive agencies usually negotiate to resolve

the problem Limited authority for judicial review

Classic area for executive oversight

Administrative Requirements

Agency must assign a control number If they do not do so, they will have trouble

enforcing the reporting requirements The agency must explain why the info is needed

and how to complete the form You see this with tax forms

Subpoenas

A reporting requirement directed at a single, identified individual or company

Reporting requirements usually require the creation of a report

Subpoenas usually ask for already existing documents Subpoenas are enforced through judicial orders and

contempt Reporting requirements usually have agency sanctions

Contesting an Agency Subpoena - Procedure

Does the agency have the power to issue the subpoena?

You can ask a court to quash the subpoena You can wait for the agency to go to court to get

an order and contest the authority for the subpoena then

The agency may provide their own administrative review of subpoenas

4th Amendment Issues (Morton Salt Test)

Is a reporting requirement or a subpoena a search? How is it different from an inspection?

Morton Salt factors Is the subpoena sufficiently specific to allow

compliance? Is the subpoena unduly burdensome? Does the agency have a proper purpose?

Basically a reasonableness test Hard to beat an agency subpoena

Fifth Amendment Issues

Self-incrimination Only applies to people, not corporations Only applies if there is a threat of criminal

prosecution Does not apply to documents that you have

voluntarily created The government must force you to testify against

yourself, which means you have to create a document that testifies against you

Marchetti v. US

The law required gamblers to keep records of illegal gambling activity

The court found that these violated the 5th amendment because they targeted criminal activity

Required Records

Assume you must keep wage and hour records for your employees

You cheat on the tax withholding, which is a crime Can you resist producing the records because

they will incriminate you?

Act of Production Doctrine

What if the existence of a voluntary record incriminates you? Not the content - that would be not be self-

incrimination Tax example

You claim income of 50K You have a document that says you were paid 100k in

a business deal Just having evidence that you had higher income is

incriminating What about records about your client's dope dealing?