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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

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authority for reporting 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 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
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
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
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 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
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
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
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
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
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
Exceptions
  • Law enforcement investigations
  • Civil lawsuits
  • Adjudications
  • Investigations of a single person or company
standards
Standards
  • Is the information required for the agency's function?
  • Does it duplicate information collected by other agencies?
  • Is it overly burdensome?
public notice
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
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
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
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
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
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
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
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
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
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?