Agency Investigations

Administrative agencies are empowered by law to investigate various matters that fall under their legal jurisdiction. An agency may conduct an investigation as part of the rulemaking process, in the course of reviewing an application for a license or permit, or as a means of determining whether sufficient cause exists to bring an enforcement action. Agencies are limited to the jurisdiction and authority granted to them by statute, but within those bounds, they generally have broad discretion regarding whether and how to conduct investigations. 

Purposes of Investigations

Rulemaking: Agencies may investigate matters related to the creation of new rules, or the amendment or modification of existing ones. New legislation or executive orders may direct an agency to develop rules addressing a particular issue. Agencies may determine how to conduct their own investigations, unless a statute or executive order gives express directions.

Licensing and Permitting: An agency may investigate matters pertaining to a specific license or permit application. It may also investigate matters of general concern to an industry in order to determine if any changes to licensing or permitting procedures are needed. For permit applications, such as a city building permit, an agency must confirm that the applicant has provided all of the required information, and has given an accurate account of the planned construction. For a license application, such as a professional license like medicine or law, an agency must conduct an investigation into any factors that may impact an applicant’s eligibility.

Enforcement: Agency investigations are less formal than adjudications that take place as part of an enforcement action. An agency may conduct an investigation, based on a complaint or a concern discovered through regulatory filings, to determine whether it is worthwhile to commence an enforcement action for an alleged regulatory infraction or legal violation.

Authority for Investigations

Much like the limits on rulemaking authority, an agency may only conduct investigations to the extent that they are authorized to do so by statute. Legislation may define an agency’s goals in broad terms, or may direct them to take certain specific actions. An agency may be required to follow strict investigative procedures defined by a statute, or they may be able to determine their own procedures. The amount of discretion an agency has to determine whether or not to investigate specific matters also depends on the statute.

An executive order from the President or a governor may direct or focus an agency’s investigative activities, or may even discourage or restrict it from investigating certain types of matters. It cannot, however, expand an agency’s investigative authority beyond what the statute authorizes.

Methods of Investigation

Government agencies have numerous means of gathering information and evidence:

  • Informal requests for documents and other materials;
  • Informal interviews;
  • Subpoenas for documents, other materials, or testimony; or
  • Hearings, which are often open to the public but are not necessarily subject to the procedural requirements of formal rulemaking proceedings or adjudication hearings.

Due Process Rights

Courts have generally held the Due Process protections of the Fifth and Fourteenth Amendments do not apply in administrative investigations, because they do not affect any “constitutionally protected liberty or property interest” of a person or business. Aponte v. Calderon, 284 F.3d 184, 186 (1st Cir. 2002). The purpose of administrative investigations, generally speaking, is to gather information to assist the agency in making a decision. The decision, such as whether or how to draft a rule, whether to issue a license or permit, or whether to commence an enforcement action, occurs after additional procedures take place.