Information Gathering - University of Washingtoncourses.washington.edu/envh471/Slides/Lesson05.pdfLesson 5. Information Gathering January 27, 2004 ENV H 471: Winter 2004 6 ENV H 471:

Lesson 5. Information Gathering January 27, 2004

ENV H 471: Winter 2004 1

Information GatheringInformation GatheringInformation Gathering

ENV H 471Environmental Health Regulation

Winter Quarter 2004

Lesson No. 5

ENV H 471: Lesson 5 2

Lesson OverviewLesson OverviewLesson Overview

vWhat Information?

vLegal Issues with ObtainingInformation

vMethods


Lesson ObjectivesLesson ObjectivesLesson Objectives

vKnow the types of informationrequired to document a problemor conditionvBe able to explain the major

techniques and processesroutinely used by environmentalhealth practitioners to obtaininformation




Lesson Objectives Lesson Objectives Lesson Objectives (Continued)(Continued)(Continued)

vDescribe the proper usage ofthe subpoena duces tecum andthe procedures for obtainingone


What Information?What Information?What Information?

v Required Records/Informationn Those items required by enabling

legislation, i.e., statutes, codes andrules and regulation often specify thatcertain records must be maintained bya regulated industry and madeavailable to the administrative agency.

n They may also require that theadministrative agency establish andmaintain certain records.



v Evidencen Information which may be used at

some point as evidence in an admin-istrative, criminal or civil proceedingshould adhere to the Rules ofEvidence.

n These, plus certain legal precedents,govern not only what kind of informa-tion is needed, but also how it may beobtained and kept.





vEvidencen At a minimum, it is usually

necessary to have the followinginformation:ÿ Location of the Property;

ÿOwner of Record;

ÿ Legal Rationale for action; and

ÿ Facts of the Case/Incident.


What Information?What Information?What Information?v Inappropriate Information

n Certain types of information should notbe contained in a case file.

n The "rules of evidence and relevance"may be helpful in judging whether aspecific item should be included.

n As a rule of thumb: any informationwhich would be clearly judged by thecourts as inadmissible in a legal actionprobably does not belong in a case file


Obtaining InformationObtaining InformationObtaining Information

v Voluntary Disclosuren Information may be obtained in a

variety of ways and still be consideredvoluntary.

n Grad states that the voluntarydisclosure of information "creates nolegal problems.”

n However disclosure by the agency may




Obtaining InformationObtaining InformationObtaining Information(Continued)(Continued)(Continued)

vCompulsory Disclosuren It may not be possible or practical for

an agency to commit the resourcesnecessary to continuously monitor theoperation of an industry or site.

n The owner/operator of the regulatedactivity can be required to maintainrecords of key items, conditions orprocesses (e.g., records of chlorination,BOD levels, and food temperatures).


MethodsMethodsMethods

v Observationsn The principal means of identifying and docu-

menting a problem is for the inspector to see it.ÿ He/she must be able to recognize the problem

(deviation from code or standard, unsafe practice, etc.).

ÿ He/she must be able to describe it in terms that willlater be understood by each of the parties concerned(industry, supervisor, courts, etc.).

ÿ He/she must document its existence -- date, time, place,circumstances and persons present.(photographs can be invaluable)


Methods Methods Methods (Continued)(Continued)(Continued)

vTests and Samples:n Time, temperature, light and noise levels are

common physical factors which can bemeasured on site.

n So can a number of situations involvingchemical concentrations, e.g., CO levels,chlorine concentration in water, and certainother gases in air.

n Most biological, and certain physical andchemical, problems require the collection andlaboratory analysis of samples.





v Tests and Samples:n In Situ Tests. For tests conducted at the site of an

investigation, the legal requirements include:ÿ The test used be accepted --

l by common sense (e.g., a thermometer for temperature),

l by testing and practice (e.g., Standard Methods for theExamination of Water and Wastewater), or

l by theoretically consistent design;

ÿ The tests must be conducted under proper circumstances;

ÿ Any instrumentation must be properly calibrated;

ÿ The tests must be carried out in accordance with acceptedpractice; and,

ÿ The results must be recorded.



v Tests and Samples:ÿ The further a test is from an obvious

common sense standard, the more likely itis to be challenged, and

ÿ therefore, the greater is the degree ofdocumentation of its appropriateness,reliability and accuracy that will berequired.



v Tests and Samples:n Sample Collection and Analysis:

ÿ All of the above requirements are equally true.

ÿ In addition there is chain of custody requirementl the results in the record are the results of the sample

collected, and further

l that the sample was indeed analyzed (within the properlimits of time, temperature, accuracy, procedures, etc.)and

l that it was not contaminated, tampered with or otherwisemade unsuitable for use as evidence.





v Industry Recordsn Requiring Industry to Maintain Records

ÿ Constitutional Challenges

n Program Requirements.ÿ Know what information is needed;ÿ Be able to collect it, i.e., the industry must be able to

supply the data;ÿ Be able to monitor the reports to ascertain:

l all the regulated industries are reportingl that the reports are completel the data is reliable;

ÿ Be able to verify the data through periodic inspectionsor other methods.



v Industry Recordsn Failure to Report. The simple act of failing to file a required

report should be immediately obvious to the regulatingagency and permits the agency to choose from severalenforcement options, e.g., revocation of the license, obtaina search warrant, subpoena of records, etc.

n Reliability of Required Records/Reports. A more difficultproblem for the agency is identifying inaccurate orunreliable information. This requires close scrutiny of allsubmitted reports and considerable experience with theregulated industry



v Subpoena duces tecumn Most regulated industries, businesses or

other activities maintain records of theiroperation.

n In some cases the administrative agencycan/should require that certain records bekept and made available to it.

n The subpoena duces tecum is a court orderto produce the specified documentarymaterial.





v Subpoena duces tecumn Nature/Authority. The subpoena

should not be considered as a routineinvestigatory tool.ÿ In the first place it is usually not needed,

and in the second,

ÿ not all administrative agencies have thelegal authority to use it.



v Subpoena duces tecumn Requirements/Use. The material must be relevant

to the purpose of the agency, i.e., it can not beused as a "fishing expedition",ÿ must be confined to certain specified data concerning an

operation which the agency has specific authority toregulate.

ÿ However, you do not have to wait until you have filed alegal action before you can use the subpoena ducestecum.

ÿ An agency may use it to discover and produce informa-tion necessary to determine whether further legal actionis warranted.


QuestionsQuestionsQuestions

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Assignment for Lesson 6Assignment for Lesson 6Assignment for Lesson 6

v Grad: Chapter 7 -- Searches andInspections

v Statutes: Various sections pertaining toinformation gathering

v Case Briefs Due: February 3, 2004n Reading # 14 - Frank v. Maryland (Group A)

n Reading #15 - Camara v. San Francisco andSee v. Seattle (Group B)

n Reading # 16 - United States v. Thriftimart,Inc. (Group C)


Assignment for Lesson 6Assignment for Lesson 6Assignment for Lesson 6

v Case Briefs Due: February 5, 2005n Reading #17 -- Marshall v. Barlow's, Inc.,

[Group A]

n Reading #18 -- Northwest Airlines, Inc.,[Group B]

n Reading #19 -- California v. Salwasser,[Group C]

n Reading #20 -- Seattle v. McCready, [GroupA]


CasesCasesCases

vU.S. v. Tivian Laboratories, Inc.,589 F.2d. 49 (1978).

vU.S. v. Ouelette, 11 ERC 1350(1977)

vGeneral Motors Corp. v. Directorof NIOSH, 636 F.2d. 163 (1980).




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Information Gathering - University of Washingtoncourses.washington.edu/envh471/Slides/Lesson05.pdfLesson 5. Information Gathering January 27, 2004 ENV H 471: Winter 2004 6 ENV H 471: