Administrative Reporting and Subpoenas: Privacy Issues & Constitutional Limits

1. Chapter 8 Reports and Subpoenas

2. 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

3. 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

4. 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

5. 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?

6. 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

7. 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?

8. 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?

9. 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

10. 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

11. Stopped here

12. 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?

13. 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.

14. 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

15. Exceptions • Law enforcement investigations • Civil lawsuits • Adjudications • Investigations of a single person or company

16. Standards • Is the information required for the agency's function? • Does it duplicate information collected by other agencies? • Is it overly burdensome?

17. 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

18. 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

19. 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

20. 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

21. 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?

22. 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

23. 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

24. 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?

25. 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

26. 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.

27. 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?