Chapter #11-Acquisition, Use & Dissemination of Information

1. Chapter #11-Acquisition, Use & Dissemination of Information

2. Information is the key for successful regulatory actions—how does an agency collect such information? Interface with those To be regulated and Collect info via Written or oral Interfacing.. • Does the agency depend to heavily on those whom it suppose to regulate? • In the process of giving information to the government, are trade secrets jeopardized? • To what extent do individuals incriminate themselves when providing the government with information?

3. Issues as to agencies gathering information from companies or people----- • Strict rules of criminal investigation do not normally apply to administrative (non-police) agencies: • 5th Amendment Privilege against self-incrimination (Doesn’t apply) • 4th Amendment freedom from “unreasonable searches and seizures”—warrant clause. (Does apply to inspections UNLESS the regulated industry is “pervasively regulated business” in a “closely regulated” industries “long subject to close supervision and inspections”)

4. Searches by administrative agencies are generally considered “reasonable” under the 4th Amendment if… • The party voluntarily agrees to the search. • The search is conducted pursuant to a validly issued search warrant. • A warrantless search is conducted in an emergency situation. • The business is part of a special industry where warrantless searches are automatically considered valid (such as liquor or firearm sales) • The business is part of a hazardous industry and a state expressly provides for non-arbitrary warrantless searches (such as coal mines)

5. Evidence collected in violation of the 4th amendment • Considered “tainted” evidence and must be “suppressed” • “Fruit of the poisonous tree” doctrine—anything stemming from the tainted evidence found must be suppressed.

6. JUDGE JUDY READY TO RULE---- OSHA needs A warrant in this Case if owner does not Voluntarily allow access to premises…each case Different though! Case: MARSHALL V. BARLOW’S INC. OSHA inspector shows up For a random inspection of business and the owner refuses to allow OSHA inspector In unless he has a warrant. OSHA claims that no warrant is necessary under these Circumstances….owner disagrees.

7. JUDGE JUDY READY TO RULE---- Photos are admissible And not obtained in Violation of the 4th Amendment as it is From navigable space Case: DOW CHEMICAL COMPANY V. US EPA takes aerial photos Of property and facility w/o warrant but were in navigable airspace---now Company wants to suppress such photos as violation of the 4th amendment And thus the evidence must be suppressed….EPA says that this is not An “unreasonable search and seizure”

8. Public Disclosure of Agency Actions Freedom of Information Act Government in the Sunshine Act Equal Access to Justice Act Privacy Act Information gathering is a two waystreet and often businesses or peoplewant information from agencies……

9. Freedom of Information Act Requires that documents of federal administrative agencies be open to the public. There are certain exemptions from this requirement. Requires agencies to publish their proceedings, rules, regulations, and other information in the Federal Register. Government in the Sunshine Act Requires that meetings of federal administrative agencies be open to the public. There are certain exemptions from this requirement. Public Disclosure of Agency Actions (continued)

10. Exemptions of the Freedom of Information Act records access: In Florida we have The Sunshine law Which allows much Access to records • Information “specifically authorized under criteria established by Executive Order to be kept secret in the interest of national security or foreign policy” • Internal personnel rules & practices • Material specifically exempted by other statutory provisions • Trade secrets and business information deemed confidential or privileged • Inter-and intra-agency memoranda • Personnel and medical files • Law enforcement records • Banking records • Geological and geophysical data concerning mineral wealth

11. Equal Access to Justice Act Gives a private party who was subject to an unjustified federal administrative agency action the right to sue and recover attorneys’ fees and costs. Privacy Act Requires that federal adminis-trative agencies maintain only information about an individual that is relevant and necessary to accomplish a legitimate agency purpose. Gives individuals access to these records and a right to correct the records. Public Disclosure of Agency Actions (continued)

12. JUDGE JUDY READY TO RULE---- FBI data base on Individuals is shielded From the FOIA And does not have To be disclosed due to Privacy issues of the Individuals records Case: US DEPTARMTENT OF JUSTICE V. REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS Reporters put a FOIA request into the FBI for the “rap sheet” of a person in the large FBI computer system--- FBI uses one of the exceptions to deny the release of this information---papers Say this information/data should be released under FOIA

13. Government in the Sunshine Act----1976 Federal Sunshine Act • “Meetings” which debate agency policy must be open to the public---there are many exceptions: • Meetings concerning national security, defense or foreign policy; • Meetings concerning internal personnel rules & practices; • Material discussed is specifically exempted by other statutory previsions; • Trade secrets and business information deemed confidential or privileged; • Matters discussed involve accusing a person of a crime or formally censuring a person; • Meeting would invade personal privacy; • Meeting concerns law enforcement records; • Meeting concerns banking records; • Opening meeting would frustrate implementation of a proposed agency action if prematurely known; • Meeting concerns the agency’s participation in formal rulemaking or litigation;

14. JUDGE JUDY READY TO RULE---- Must give up transcripts as this Falls within the Federal Sunshine Act Case: NUCLEAR REGULATORY COMMISSION V. COMMON CAUSE Advocacy group wants access to closed door meeting of agency members Via copies of transcripts—the NRC objects and states it does not fall within The Federal Sunshine Act..