Notes for Administrative Law October 7 2015 Chapter 7 Objectives 1 To know the three methods that agencies use to collect information from people and businesses under federal law 2 Explain how the Constitution can limit the authority that an agency has to conduct tests and inspections 3 Be able to brief a case and analyze the court s rationale Agency Investigations and Information Collection 1 Acquiring Information Why is it important o So that agencies can make decisions o The public benefits from the wisdom of agency Still it is important to keep government inference at a minimum 2 Record Keeping and Reporting Definitions o Record keeping is when an agency asks that a record may be maintained o Reporting is when an agency asks for the record to be produced These are costly APA does not mandate specific recordkeeping and reporting but other laws may require this Agencies can mandate recordkeeping or reporting when o They have jurisdiction over the subject o The requirement is not overly burdensome and it is reasonable o Not privileged doctor patient wife spouse and lawyer client are examples The broad language is to ensure agencies have discretion Some exemptions to Recordkeeping and Reporting o Harm will come from compliance example of harm could mean trade secrets o Request violates a common law statutory privilege Read U S v Morton Salt Company Fifth Amendment Aspects o Self incrimination is protected and you cannot be compelled to testify o Reasonable belief that criminal information may be used against them they may claim privilege or not report o If by statute the information is exempt from being reported outside the agency then the agency may require reporting but that reporting cannot be used to prosecute the individual Third parties are exempt from this unless the party is privileged example drug dealer s friend o Remember that an individual can waive their 5 th amendment right Immunity Granted by the AG and there are three o Transactional immunity A witness may be compelled to testify and it shields a witness from prosecution of ALL offenses that are stated Independently obtained evidence may not be used to prosecute the witness o Derivative use immunity Witnesses may be compelled to testify and it shields a witness from prosecution of based on info learned from the testimony provided The witness is subject to prosecution based independently obtained evidence o Use Immunity Only prohibited the government from using the witness s testimony against them Evidence derived from the compelled testimony may be used against them 3 Inspections Tests and Searches Records Conditions Premises Less costly than RK and Reporting APA doesn t explicitly authorize inspections Agency inspections are subject to 4 th Amendment but Agencies still have broad authority o Observations in public areas are not searches o A search area is observed where the owner possessor has or expects a reasonable level of privacy 4 th amendment still applies Criminal Cases searches have to o Show Probable cause o Support oath and affirmation o Be Specific In Administrative Cases o Reasonable inspection standards o Area Inspections o Exception applies to businesses but not to private or private areas Not valid in criminal cases Read Camera v Municipal Court Drug Alcohol and AID testing drug test in nuclear power plants is deemed appropriate highly regulated business National Treasury Employees Union v Von Raab testing was upheld because it was administrative in nature and couldn t be used in a criminal prosecution Read Vernonia School District v Action