Chapter 8
Reports and Subpoenas
Silver Platter Doctrine Revisited
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Elkins v. United States, 364 U.S. 206, 80 S.Ct.
1437, 4 L.Ed.2d 1669 (1960)
 State police illegally obtain evidence and had it
to federal police
 No silver platter doctrine, both are state actors
We are talking about a non-state actor getting the
evidence.
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Criminal versus Administrative
Investigations and the Constitution
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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
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Authority for Reporting and Subpoenas
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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
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First Party or Third Party Reporting
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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
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4th and 5th Amendment
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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?
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State Police Power Reporting
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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
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Contemporary Third Party Reporting
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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?
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What are the Privacy Issues?
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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?
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Whalen v. Roe, 9 US 589 (1977)
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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
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Enforcement of Third Party Reporting

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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
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First Party Reporting

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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?
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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.
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What is Covered?
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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
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Exceptions
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Law enforcement investigations
Civil lawsuits
Adjudications
Investigations of a single person or company
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Standards
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Is the information required for the agency's
function?
Does it duplicate information collected by other
agencies?
Is it overly burdensome?
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Public Notice
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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
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ORIA Review
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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
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Administrative Requirements
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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
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Subpoenas v Reporting Laws
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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
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Contesting an Agency Subpoena Procedure
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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?
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4th Amendment Issues (Morton Salt Test)
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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
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Fifth Amendment Issues
Self-incrimination
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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
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Required Records
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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?
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Marchetti v. United States, 390 U.S. 39
(1968)
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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
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Act of Production Doctrine
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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.
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U.S. v. Ponds, 454 F.3d 313 (D.C.Cir. Jul
14, 2006)
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"In Hubbell, the Supreme Court held that Hubbell's act of producing over 13,000
documents in response to a broad subpoena was sufficiently testimonial to
implicate the Fifth Amendment because “the prosecutor needed [Hubbell]'s
assistance both to identify potential sources of information and to produce
those sources.” Some of the broadest demands of that subpoena asked for all
documents referring to “any direct or indirect sources of money or other things
of value received by or provided to Webster Hubbell” and “Webster Hubbell's
schedule of activities.” The Court held that “the collection and production of the
materials demanded was tantamount to answering a series of interrogatories
asking a witness to disclose the existence and location of particular documents
fitting certain broad descriptions,” in which it was “unquestionably necessary
for [Hubbell] to make extensive use of ‘the contents of his own mind’ in
identifying the hundreds of documents responsive to the requests in the
subpoena.”
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Tax example
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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?
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