investigations and information planning

1. INVESTIGATIONS AND
INFORMATION PLANNING

2. 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

3. Jurisdiction
Established by an enabling statute
May 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

4. Reasonable
The 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

5. Public interest
Information requested must not be
privileged
Examples – trade secrets, implication
of criminal actions
REQUIREMENTS FOR GATHERING
INFORMATION

6. 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

7. 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

8. 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

9. 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

10. 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

11. Court response – 4th
Amendment argument
Such 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

12. Court response – 5th
Amendment argument
Because 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

13. Self-incrimination
5th
Amendment protection – person is not
required to supply information to an agency
that could lead to criminal prosecution.
Businesses cannot use exception
If information is kept voluntarily, privilege
does not apply – only applies to
mandatory information required by an
agency
EXCEPTIONS TO RECORDKEEPING

14. Reasonableness
If 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

15. Jurisdiction
If the agency does not have jurisdiction,
the person or business is exempt from
recordkeeping
EXCEPTIONS TO RECORDKEEPING

16. 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

17. If an inspection could possibly result in
criminal prosecutions, the requirements
of search and seizure under the 4th
Amendment are upheld
PROTECTIONS FROM INSPECTIONS

18. 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

19. 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

20. Used by agencies as a means to
forcefully compel the gathering of
information:
Search warrants
Subpoenas
Testimony grants of immunity
INVESTIGATORY PROCEDURES

21. 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

22. 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

23. 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

24. 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