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Chapter 8
Reports and Subpoenas
2
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
3
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
4
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?
5
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
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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?
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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?
8
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? What about the physicians and pharmacies? The government must avoid unneeded disclosure
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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
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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?
11
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 have the authority to veto requests by
independent agencies Provides a defense against claims by the government
that the individual did not provide the requested information.
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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
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Exceptions
Law enforcement investigations Civil lawsuits Adjudications Investigations of a single person or company
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Standards
Is the information required for the agency's function?
Does it duplicate information collected by other agencies?
Is it overly burdensome?
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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
16
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
17
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
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Subpoenas v Reporting Laws
Reporting requirements Usually require the creation of a report Usually have agency sanctions for noncompliance
Subpoena Like a reporting requirement directed at a single,
identified individual or company Ask for already existing documents Enforced through judicial orders and contempt, not
agency process
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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 Do you have a duty to contest an illegal subpoena or
request for records? What should the telcom companies have done about
the national security request for phone records?
20
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? Is the subpoena unduly burdensome? Does the agency have a proper purpose?
Basically a reasonableness test Hard to beat an agency subpoena
Courts do not like to quash interlocutory orders General deference to agencies, plus no criminal prosecution
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Fifth Amendment IssuesSelf-incrimination
Only applies to people, not corporations Only applies if there is a threat of criminal prosecution
You can claim it in a civil proceeding to avoid producing evidence that could be used in a criminal case
You will suffer the administrative sanction for not producing the evidence Evidence may be excluded if coerced by an
administrative sanction like firing or loss of a law license
22
Required Records
Assume you must keep wage and hour records You cheat on the tax withholding, which is a
crime Can you resist producing the records because
they will incriminate you? Shapiro v. United States, 335 U.S. 1 (1948). What if you voluntarily created the records?
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Marchetti v. United States, 390 U.S. 39 (1968)
The law required gamblers to keep records of illegal gambling activity Why? Would they really do this?
The court found that these violated the 5th amendment because they targeted criminal activity The key is that the law was required a general
business record but a specific record of illegal activity
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Act of Production Doctrine
Document would implicitly “testify” that (1) the document existed; (2) the document was authentic -- e.g., not a
forgery; and (3) that she had possession of the document at
the time of production. It is admitting that you have it that is the
testimony.
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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?