Presentation on theme: "Reports and Subpoenas. Authority for Reporting and Subpoenas Most state and federal agencies that have significant regulatory powers may require reporting."— Presentation transcript:
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?