INVESTIGATIONS AND INFORMATION

PLANNING

Investigations are processes for gathering information to assist agencies in making decisions.

Each agency develops its own unique method of securing information.

PURPOSE OF AGENCY INVESTIGATIONS

Jurisdiction Established by an enabling statuteMay be limited to the immediate industry under regulation or vastly extended to connected persons for the legitimate exercise of agency information gathering and investigations.

REQUIREMENTS FOR GATHERING INFORMATION

ReasonableThe means used to collect information and the methods for sending it

5th and 14th Amendments have protections from unreasonable collection of information

Methods used cannot be overly intrusive; costly; or time-consuming

REQUIREMENTS FOR GATHERING INFORMATION

Public interestInformation requested must not be privileged

Examples – trade secrets, implication of criminal actions

REQUIREMENTS FOR GATHERING INFORMATION

Watkins v. United States, 354 US 178 (1957)Mr. Watkins was convicted for refusing to make disclosures to Congressional subcommittee on un-American activities.

Court held that while Congress’ power to conduct investigations is inherent in the legislative process, this power is no unlimited.

“There is no general authority to expose private affairs of individuals without justification.”

REQUIREMENTS FOR GATHERING INFORMATION

Records are defined as written documents or accounts used by agencies to make decisions, rules, or regulations

Legislative statutes create the authority for agencies to demand record compliance

REQUIREMENTS FOR RECORDKEEPING

The 4th and 5th Amendments cannot be used as shields against the requirements of recordkeeping.

As long as records are sought for public interest in a regulated activity and are not used to prove criminal involvement, power to require records predominates.

REQUIREMENTS FOR RECORDKEEPING

Although agencies have the power to seek and demand information, clients have the right to protect certain information.4th Amendment – protects from improper searches and inspections

5th Amendment – protects from supplying information that would be self-incriminating.

CLIENT PRIVILEGE RIGHTS

Craib v. Bulmash, 777 P2d 1120 (Cal. 1989)Bulmash refused to pay overtime wages and when Labor Standards Enforcement agency ordered production of records he attempted to use the 4th and 5th Amendments as his defense.

CLIENT PRIVILEGE RIGHTS

Court response – 4th Amendment argumentSuch a request is not an unreasonable search and seizure.

Subpoenaed records need only be relevant to an authorized regulatory purpose and described with reasonable specificity

No reasonable expectation of privacy against judicially compelled disclosure of records required to be kept.

CRAIB V. BULMASH

Court response – 5th Amendment argumentBecause an employer is statutorily required to maintain wage and hour records, it must unconditionally respond to the court order

Privilege does not apply because it only requires minimal disclosure of a kind customarily kept in ordinary course of business

CRAIB V. BULMASH

Self-incrimination5th Amendment protection – person is not required to supply information to an agency that could lead to criminal prosecution.Businesses cannot use exceptionIf information is kept voluntarily, privilege does not apply – only applies to mandatory information required by an agency

EXCEPTIONS TO RECORDKEEPING

ReasonablenessIf recordkeeping is beyond reasonable time and cost limit, record compliance may not be required

If there is a reasonable opportunity of being harmed, injured, or disclosure of a business secret, the agency must adjust recordkeeping requirement

EXCEPTIONS TO RECORDKEEPING

JurisdictionIf the agency does not have jurisdiction, the person or business is exempt from recordkeeping

EXCEPTIONS TO RECORDKEEPING

Agency inspections are the investigations and examinations conducted on the physical (actual) premises owned by an individual or business

Inspections are used to discover any violations of agency rules and regulations

Some clients will voluntarily comply to keep license or funding

INSPECTIONS

If an inspection could possibly result in criminal prosecutions, the requirements of search and seizure under the 4th Amendment are upheld

PROTECTIONS FROM INSPECTIONS

Camara v. Municipal Court, 387 US 523 (1967)Resident refused admittance to a housing inspector, who had no search warrant to make a routine check of municipal housing code violations.

Court upheld request for a warrant, but authorized warrant to be generalized on neighborhood, or other area basis

PROTECTIONS OF PRIVATE PREMISES

New York v. Burger, 482 US 691 (1987)Owner of a junkyard that was discovered to have stolen vehicles and parts refused to a search of his premises, alleging a search warrant was necessary

Court held the warrantless search was satisfactory because type of business is ‘closely regulated’ business – Strictly regulated businesses do not have right to demand a search warrant

PROTECTIONS OF BUSINESSES

Used by agencies as a means to forcefully compel the gathering of information:Search warrantsSubpoenasTestimony grants of immunity

INVESTIGATORY PROCEDURES

Used when there is a refusal to allow an agency to conduct a search.

Agency has to show probable cause that a violation of a regulation exists – similar to criminal setting

SEARCH WARRANTS

Orders for a person to appear at a hearing to testify or appear at the agency with specific records

To compel such records, the agency must have a court order

SUBPOENAS

EEOC v. Kloster Cruise, Ltd., 939 F2d 921 (11th Cir. 1991)EEOC issued a subpoena duces tecum based on allegations of employment discrimination.

Although Kloster argued jurisdiction, court held that EEOC must be allowed to investigate the facts of the allegations, including the jurisdictional issue. “To do otherwise would be to not only place the cart before the horse, but to substitute a different driver from the one appointed by Congress

SUBPOENAS

Only given by attorney general after agency proves information necessary for public interest

Used as a tool to acquire information, but individual given immunity from liability and prosecution

GRANTS OF IMMUNITY