Administrative Law

Information and Administration

Introduction This section covers two aspects of information:

The ability of agencies to gather information Information = power Done through:

Investigations Compulsion of testimony

Most of this information comes from: Regulated parties Beneficiaries of government benefits

Citizens ability to check administration through transparency and openness of information

This acts as a check on agencies (government) Sunshine laws Freedom of information statutes

Administrative law once again acts as a check on government while empowering agencies.

Introduction Issues:

Does the government depend too heavily on those whom it is supposed to regulate?

In the process of giving information to the government, are trade secrets jeopardized?

To what extent do individuals incriminate themselves when they provide information to the government?

Constitutional Protection: 4th Amendment

“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

5th Amendment “No person…shall be compelled in any criminal case to be a witness against himself.”

The Supreme Court has differentiated application of these amendments to criminal proceedings versus administrative proceedings.

Wyman v. James, 400 U.S. 309 (1971)

Marshall v. Barlows, Inc., 436 U.S. 307 (1978)

The Exclusionary Rule Exclusionary Rule – judicial doctrine prohibiting the use of evidence in a

criminal trial where the evidence was obtained in violation of the defendant’s constitutional rights.

Weeks v. United States (1914) Wolf v. Colorado (1949)

Created the silver platter doctrine Mapp v. Ohio (1961)

The Rationale It keeps the police from conducting illegal searches and seizures. It preserves the integrity of the judiciary by not allowing the use of illegally obtained

evidence. The Fruit of the Poisonous Tree Doctrine – the rule that evidence derived

from an illegal search, arrest, or interrogation is inadmissible because the evidence (the “fruit”) was tainted by the illegality (the “poisonous tree”).

Exceptions: Inevitable discovery – evidence obtained by illegal means may still be admissible if the

prosecution can show the evidence would have been discovered anyway. The good faith exception – evidence obtained under a warrant later found to be

unsupported by probable cause is nonetheless admissible if the police reasonably relied on the notion that the warrant was valid.

Dow Chemical v. United States, 476 U.S. 227 (1986)

INS v. Lopez-Mendoza et al., 468 U.S. 1032 (1984)

Access to Information Held by Government

Introduction In the 1960’s and 70’s there was growing

concern over the problem of agency capture. Led by Ralph Nadir, the public interest

movement sought to increase public access and participation in the regulatory process.

Result: Courts:

Broadening standing to sue Expanding notice and comment periods Requirement to record facts used in agency decision

making

Access to Information Held by Government

Congress: Government in the Sunshine Act of 1976

Section 552b of the Administrative Procedure Act Requires that administrative and legislative meetings be open to the public. Agency must announce the time, place, and subject matter of the meeting at least one week

prior. Provides 10 exceptions for agencies:

Examples: National defense secrets

Administrative Procedure Act of 1976 Prohibits ex parte decisions by agencies

Freedom of Information Act of 1966 Allows citizens to request documents from federal agencies. Documents must be released unless exceptions are provided by law. Exceptions:

Information “specifically authorized under criteria established by Executive order to be kept secret in the interest of national defense or foreign policy.”

Internal personnel rules and 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.

Access to Information Held by Government

Freedom of Information Act of 1974 Required agency to make a decision on FOIA

request within 10 days. Allows petitioners to sue if the agency fails to

comply. With freedom of information law, agency’s often

use the argument of protecting individual privacy when refusing requests.

Executive Order 13,392 Executive agencies are required to designate a

Chief FOIA officer to deal with FOIA requests.

Department of the Air Force v. Rose, 425 U.S. 352 (1976)

United States Department of Justice v. Reporters Committee for the Freedom of

the Press, 489 U.S. 749 (1989)

Sunshine Laws Sunshine laws are predicated on the idea that requiring that agency meetings

be open to the public will: Reduce the influence of special interests Help hold government agencies in check

Government in the Sunshine Act of 1976 Requires that multimember agencies open their meetings to the public. Meetings are defined as deliberations of at least a quorum where deliberations will

affect agency policy. Exemptions:

Meeting concerns information that is vital to the national defense or foreign policy Meeting concerns internal personnel rules and practices Material discussed is specifically exempted by other statutory provisions 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 Open meeting would frustrate implementation of a proposed agency action if prematurely

known Meeting concerns the agency’s participation in formal rulemaking or litigation.

Nuclear Regulatory Commission v. Common Cause, 674 F.2D

921, D.C. Circuit (1982)

Privacy Act of 1974 This act does not prevent the government from gathering

information about people or invading their privacy. Purpose

It provides an avenue for a citizen to learn what the government knows about that person.

Agencies must provide a method for citizens to inspect records and correct errors.

Prohibits the agency from using the information from anything other than the state purpose.

Prohibits the agency from providing the information to others without the citizen’s consent.

Exemptions: Criminal investigations Central Intelligence Agency records Materials that are sensitive to national security