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New York University Law Review

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N.Y.U. L. Rev.





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In the attempt to bring complex patterns of social and economic interaction under effective public control, Congress has relied increasingly on federal regulatory agencies. These agencies can fulfill their statutory missions only if they possess adequate information to determine both when exercise of their substantive powers would be appropriate and what form that exercise should assume. Without knowledge of the actual conditions prevalent in the areas committed to their supervision, agencies can act only capriciously.

Of necessity, much of the data needed by regulatory agencies must be obtained from the regulated individuals or companies themselves. Although such information often is supplied voluntarily, difficult legal problems arise when the regulated entity refuses to divulge the requested data. These situations entail collision of important interests: the private entity's proprietary rights in the data conflict with the public's interest in effective regulation. This Note examines a major aspect of this conflict: the constitutional and statutory limits on the demands of federal regulatory agencies to inspect documents held by private entities.

Document inspection disputes typically arise in the following fashion. An agency representative tenders, by mail or in person, an informal request to be allowed to examine and copy documents held by the private entity. Sometimes the request identifies the documents sought by type, date, or subject matter; not infrequently the request is for plenary access to all files maintained by the entity. Should its informal demand be refused, the agency issues an administrative subpoena for the material. The matter may reach the courts in either of two ways. The person on whom the subpoena is served may challenge its validity in federal court. Alternatively, the agency itself may sue for a court order directing compliance. Regardless of how the suit reaches the courts, the validity of the administrative subpoena will be evaluated by a single standard. The universal rule in the federal courts is that agency access demands will be enforced if the documents sought are reasonably related to an investigation that is within the agency's authority.

Section I of this Note traces the history of judicial treatment of agency access demands, emphasizing the evolution of the reasonable relation standard. Section II critiques the manner in which that standard has been employed, arguing both that it has undermined important constitutional principles and that it has proven incapable of rational application. Finally, Section III proposes a different approach, which, through more careful elaboration of the relevant criteria, better reconciles the competing sets of principles in document access disputes.


© 1981 Steve R. Johnson


First published in New York University Law Review.

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