2. Chapter #11-Acquisition, Use & Dissemination of Information

3. Information is the key for successful regulatory actions—how does an agency collect such information? Does the agency depend to heavily on those whom it suppose to regulate? Does the agency depend to heavily on those whom it suppose to regulate? In the process of giving information to the government, are trade secrets jeopardized? In the process of giving information to the government, are trade secrets jeopardized? To what extent do individuals incriminate themselves when providing the government with information? To what extent do individuals incriminate themselves when providing the government with information? Interface with those To be regulated and Collect info via Written or oral Interfacing..

4. Issues as to agencies gathering information from companies or people----- Strict rules of criminal investigation do not normally apply to administrative (non-police) agencies: Strict rules of criminal investigation do not normally apply to administrative (non-police) agencies: 5 th Amendment Privilege against self- incrimination (Doesn’t apply) 5 th Amendment Privilege against self- incrimination (Doesn’t apply) 4 th Amendment freedom from “unreasonable searches and seizures”—warrant clause. (Does apply to inspections UNLESS the regulated industry is “pervasively regulated business” in a “closely regulated” industries “long subject to close supervision and inspections”) 4 th Amendment freedom from “unreasonable searches and seizures”—warrant clause. (Does apply to inspections UNLESS the regulated industry is “pervasively regulated business” in a “closely regulated” industries “long subject to close supervision and inspections”)

5. Searches by administrative agencies are generally considered “reasonable” under the 4 th Amendment if… The party voluntarily agrees to the search. The party voluntarily agrees to the search. The search is conducted pursuant to a validly issued search warrant. The search is conducted pursuant to a validly issued search warrant. A warrantless search is conducted in an emergency situation. A warrantless search is conducted in an emergency situation. The business is part of a special industry where warrantless searches are automatically considered valid (such as liquor or firearm sales) The business is part of a special industry where warrantless searches are automatically considered valid (such as liquor or firearm sales) The business is part of a hazardous industry and a state expressly provides for non-arbitrary warrantless searches (such as coal mines) The business is part of a hazardous industry and a state expressly provides for non-arbitrary warrantless searches (such as coal mines)

6. Evidence collected in violation of the 4 th amendment Considered “tainted” evidence and must be “suppressed” Considered “tainted” evidence and must be “suppressed” “Fruit of the poisonous tree” doctrine—anything stemming from the tainted evidence found must be suppressed. “Fruit of the poisonous tree” doctrine—anything stemming from the tainted evidence found must be suppressed.

7. JUDGE JUDY READY TO RULE---- Case: MARSHALL V. BARLOW’S INC. OSHA inspector shows up For a random inspection of business and the owner refuses to allow OSHA inspector In unless he has a warrant. OSHA claims that no warrant is necessary under these Circumstances….owner disagrees. OSHA needs A warrant in this Case if owner does not Voluntarily allow access to premises…each case Different though!

8. JUDGE JUDY READY TO RULE---- Case: DOW CHEMICAL COMPANY V. US EPA takes aerial photos Of property and facility w/o warrant but were in navigable airspace---now Company wants to suppress such photos as violation of the 4 th amendment And thus the evidence must be suppressed….EPA says that this is not An “unreasonable search and seizure” Photos are admissible And not obtained in Violation of the 4 th Amendment as it is From navigable space

9. Public Disclosure of Agency Actions Freedom of Information Act Government in the Sunshine Act Equal Access to Justice Act Privacy Act Information gathering is a two way street and often businesses or people want information from agencies……

10. Public Disclosure of Agency Actions (continued) Freedom of Information Act Requires that documents of federal administrative agencies be open to the public. Requires that documents of federal administrative agencies be open to the public. There are certain exemptions from this requirement. There are certain exemptions from this requirement. Requires agencies to publish their proceedings, rules, regulations, and other information in the Federal Register. Requires agencies to publish their proceedings, rules, regulations, and other information in the Federal Register. Government in the Sunshine Act Requires that meetings of federal administrative agencies be open to the public. Requires that meetings of federal administrative agencies be open to the public. There are certain exemptions from this requirement. There are certain exemptions from this requirement.

11. Exemptions of the Freedom of Information Act records access: Information “specifically authorized under criteria established by Executive Order to be kept secret in the interest of national security or foreign policy” Information “specifically authorized under criteria established by Executive Order to be kept secret in the interest of national security or foreign policy” Internal personnel rules & practices Internal personnel rules & practices Material specifically exempted by other statutory provisions Material specifically exempted by other statutory provisions Trade secrets and business information deemed confidential or privileged Trade secrets and business information deemed confidential or privileged Inter-and intra-agency memoranda Inter-and intra-agency memoranda Personnel and medical files Personnel and medical files Law enforcement records Law enforcement records Banking records Banking records Geological and geophysical data concerning mineral wealth Geological and geophysical data concerning mineral wealth In Florida we have The Sunshine law Which allows much Access to records

12. Public Disclosure of Agency Actions (continued) Equal Access to Justice Act Gives a private party who was subject to an unjustified federal administrative agency action the right to sue and recover attorneys’ fees and costs. Gives a private party who was subject to an unjustified federal administrative agency action the right to sue and recover attorneys’ fees and costs. Privacy Act Requires that federal adminis-trative agencies maintain only information about an individual that is relevant and necessary to accomplish a legitimate agency purpose. Requires that federal adminis-trative agencies maintain only information about an individual that is relevant and necessary to accomplish a legitimate agency purpose. Gives individuals access to these records and a right to correct the records. Gives individuals access to these records and a right to correct the records.

13. JUDGE JUDY READY TO RULE---- Case: US DEPTARMTENT OF JUSTICE V. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS Reporters put a FOIA request into the FBI for the “rap sheet” of a person in the large FBI computer system--- FBI uses one of the exceptions to deny the release of this information---papers Say this information/data should be released under FOIA FBI data base on Individuals is shielded From the FOIA And does not have To be disclosed due to Privacy issues of the Individuals records

14. Government in the Sunshine Act-- --1976 Federal Sunshine Act “Meetings” which debate agency policy must be open to the public---there are many exceptions: “Meetings” which debate agency policy must be open to the public---there are many exceptions: Meetings concerning national security, defense or foreign policy; Meetings concerning national security, defense or foreign policy; Meetings concerning internal personnel rules & practices; Meetings concerning internal personnel rules & practices; Material discussed is specifically exempted by other statutory previsions; Material discussed is specifically exempted by other statutory previsions; Trade secrets and business information deemed confidential or privileged; Trade secrets and business information deemed confidential or privileged; Matters discussed involve accusing a person of a crime or formally censuring a person; Matters discussed involve accusing a person of a crime or formally censuring a person; Meeting would invade personal privacy; Meeting would invade personal privacy; Meeting concerns law enforcement records; Meeting concerns law enforcement records; Meeting concerns banking records; Meeting concerns banking records; Opening meeting would frustrate implementation of a proposed agency action if prematurely known; Opening meeting would frustrate implementation of a proposed agency action if prematurely known; Meeting concerns the agency’s participation in formal rulemaking or litigation; Meeting concerns the agency’s participation in formal rulemaking or litigation;

15. JUDGE JUDY READY TO RULE---- Case: NUCLEAR REGULATORY COMMISSION V. COMMON CAUSE Advocacy group wants access to closed door meeting of agency members Via copies of transcripts—the NRC objects and states it does not fall within The Federal Sunshine Act.. Must give up transcripts as this Falls within the Federal Sunshine Act