WELCOME BACK! ADMIN. LAW UNIT 6

ANN SANOK

THIS WEEK

• We look at an agency’s power to conduct inspections or to compel acts by individuals or companies

• For this Unit: • Read Chapter 7• 1 DB question• Quiz• Writing Assignment - Outline

Need to know…

Agencies need access to information in order to do their job.

If the EPA wants to monitor pollution at an asphalt plant, it will need information from the plant on factory procedures, materials, processing technologies; temperature and waste information etc. maintained by the plant.

Conflicting interests:

• the administrative agency’s interest in obtaining information in order to fulfill its mandate

Versus• the individual’s right to

be free from excessive governmental interference in personal and business affairs

RECORD KEEPING RULES

One method used by administrative agencies to acquire information is requiring individuals and businesses to produce and maintain records. An agency may require that these records be held subject to review by the agency, or the record producer may be required to provide the records to the agency.

The former is known as recordkeeping and the latter is known as reporting.

Criteria for regulating record keeping:

In general, an agency may require the disclosure of information, or that records be kept, if the following criteria are met:

• 1. The agency has jurisdiction over the subject and individual concerned and

• 2. The requirement is reasonable and not overly burdensome and

• 3. The information is not

privileged.

Basically, as long as an agency has jurisdiction over the subject matter and individual concerned, it can establish reasonable record-keeping requirements which

organizations must follow.

Drowning in Paperwork?

• Agencies may not require recordkeeping or reporting that is unduly burdensome or harmful.

For example, if the cost of providing the required information (i.e., locating, tallying,and copying the information) is extremely high, the individual or business may be excused from compliance. In addition, a regulated party may be excused if some harm will result from compliance.

5th Amendment…

• The Fifth Amendment contains the privilege against self-incrimination, which provides that a person cannot be forced to give evidence against himself, whether oral or written.

• The provision is important to recordkeeping and reporting requirements because a person may be required by an agency to provide information that could prove the person committed a crime.

Power to subpoena

• The APA confers does not grant general authority for an administrative agency to issue a subpoena upon a business or individual. An agency must typically seek authority from the court to compel production of documents, data or testimony.

What’s your business?

• For example, the Internal Revenue Service requires individuals to file tax returns. Federal tax law requires that taxpayers claim all income, whether derived from legal or illegal activity.

• Hence, a person engaged in prostitution is required to report all income from that enterprise to the Internal Revenue Service.

• Exceptions p. 154

May that information then be used to prosecute the individual for

prostitution?

No!

The privilege against self-incrimination applies to such reporting requirements. People may not be forced to provide information that could be used to prove their guilt.

Immunity can be granted..

• Transactional immunity shields a witness from prosecution of offenses related to his or her testimony compelled by the government.

• Quiz Alert! Read pages 155-157!

INSPECTIONS..

• Administrative agencies frequently conduct

inspections and tests.

• For example, the U.S. Environmental Protection Agency conducts tests at toxic disposal facilities to ensure compliance with federal environmental laws.

Just checking….

• Most administrative inspections are intended to discover problems, irregularities, violations…not necessarily crimes.

Who ya gonna call?

• Local health inspectors routinely inspect local restaurants for compliance with health codes.

Not all inspections amount to searches.

Although its requirements are usually relaxed in the administrative context, the Fourth Amendment does apply to administrative agency actions that constitute searches. Not all inspections amount to searches.

Agency officials commonly enter public places and make observations, but such observations are considered searches for Fourth Amendment purposes.

For example, a health inspection official may inspect the dining room and restrooms of a public restaurant without concern for the Fourth Amendment.

An individual has a lesser expectation of privacy in a place of business

than in a private home

And, because businesses are public establishments regulated by the government, they generally have a lessened privacy interest. The greater the amount of regulation by the government, the less privacy interest a business possesses.

Closely Regulated Business

• A closely regulated business may be subject to regulatory inspection without the need for a warrant.

• For example, a power plant or other dangerous business or operations may be subject to inspections without notice.

Bottom line…

• Inspections by agency officials may give rise to privacy concerns. Today, the courts distinguish searches in the criminal context from administrative inspections.

• Although all searches and inspections are governed by the Fourth Amendment and must be reasonable, the Fourth Amendment’s probable cause requirement is relaxed in the administrative context.

Wrapping it up…

• Don’t forget to Read Chapter 7

• Be present on the DB!

• Quiz

• Outline…oh yea – that…

Easy..

• Most of you already have outlined your final paper in the preceding papers. If you earned a 90% or more on Unit 4’s submission, resubmit it to the drop box as is and you are done!

• All others..you are almost done… just incorporate any suggestions I made and resubmit. Also be sure to modify so it is in outline form.

See you next week!

• I will be posting an example of how to do the Motion for Protective Order.

• Not a big deal• Focus on writing a clear, well organized

coherent final paper.

Have a warm, safe, happy week!