Chapter 8

Reports and Subpoenas

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Silver Platter Doctrine Revisited

Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960) State police illegally obtain evidence and had it

to federal police No silver platter doctrine, both are state actors

We are talking about a non-state actor getting the evidence.

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Criminal versus Administrative Investigations and the Constitution

The popular notion of the constitutional limits on the government's right to invade your privacy are based on criminal law standards Probable cause Warrants Right against self-incrimination

Forget all that for administrative law A key question becomes the nature of the

investigation because that drives the protections

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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

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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

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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?

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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 constitutional medical privilege?

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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? Marijuana tax stamps Gambling reports

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

paperwork reduction act?

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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

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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

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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 - class of persons Usually require the creation of a report Usually have agency sanctions for noncompliance

Subpoena - individual 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?

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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 lose the civil suit You will suffer the administrative sanction for not

producing the evidence Evidence may be excluded in a criminal trial if coerced

by an administrative sanction like firing or loss of a law license

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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 register and pay an occupational tax? Why? What about the requirement that owners of sawed off

shotguns get a license for them? The court found that these violated the 5th amendment

because they targeted criminal activity The key is that the law was not requiring 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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U.S. v. Ponds, 454 F.3d 313 (D.C.Cir. Jul 14, 2006)

"In Hubbell, the Supreme Court held that Hubbell's act of producing over 13,000 documents in response to a broad subpoena was sufficiently testimonial to implicate the Fifth Amendment because “the prosecutor needed [Hubbell]'s assistance both to identify potential sources of information and to produce those sources.” Some of the broadest demands of that subpoena asked for all documents referring to “any direct or indirect sources of money or other things of value received by or provided to Webster Hubbell” and “Webster Hubbell's schedule of activities.” The Court held that “the collection and production of the materials demanded was tantamount to answering a series of interrogatories asking a witness to disclose the existence and location of particular documents fitting certain broad descriptions,” in which it was “unquestionably necessary for [Hubbell] to make extensive use of ‘the contents of his own mind’ in identifying the hundreds of documents responsive to the requests in the subpoena.”

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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?