Amdt5.3.2.2 Required Records Doctrine

Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Although the privilege is applicable to an individual’s papers and effects, 1 it does not extend to corporate persons; hence corporate records, as has been noted, are subject to compelled production. 2 In fact, however, the Court has greatly narrowed the protection afforded in this area to natural persons by developing the required records doctrine. That is, it has held that the privilege which exists as to private papers cannot be maintained in relation to ‘records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation and the enforcement of restrictions validly established.’3 This exception developed out of, as Justice Frankfurter showed in dissent, the rule that documents which are part of the official records of government are wholly outside the scope of the privilege; public records are the property of government and are always accessible to inspection. Because government requires certain records to be kept to facilitate the regulation of the business being conducted, so the reasoning goes, the records become public at least to the degree that government could always scrutinize them without hindrance from the record-keeper. If records merely because required to be kept by law ipso facto become public records, we are indeed living in glass houses. Virtually every major public law enactment – to say nothing of State and local legislation – has record-keeping provisions. In addition to record-keeping requirements, is the network of provisions for filing reports. Exhaustive efforts would be needed to track down all the statutory authority, let alone the administrative regulations, for record-keeping and reporting requirements. Unquestionably they are enormous in volume.4

It may be assumed at the outset that there are limits which the government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the record-keeper himself.5 But the only limit that the Court suggested in Shapiro was that there must be a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator.6 That there are limits established by the Self-Incrimination Clause itself rather than by a subject matter jurisdiction test is evident in the Court’s consideration of reporting and disclosure requirements implicating but not directly involving the required-records doctrine.

Footnotes

  1.  Boyd v. United States, 116 U.S. 616 (1886). But see Fisher v. United States, 425 U.S. 391 (1976).
  2.  See discussion, supra, under Development and Scope.
  3.  Shapiro v. United States, 335 U.S. 1, 33 (1948) (quoting Davis v. United States, 328 U.S. 582, 589-90 (1946), which quoted Wilson v. United States, 221 U.S. 361, 380 (1911)). Dicta in Wilson is the source of the required-records doctrine, the holding of the case being the familiar one that a corporate officer cannot claim the privilege against self-incrimination to refuse to surrender corporate records in his custody. Cf. Heike v. United States, 227 U.S. 131 (1913). Davis was a search and seizure case and dealt with gasoline ration coupons which were government property even though in private possession. See Shapiro, 335 U.S. at 36, 56-70 (Justice Frankfurter dissenting).
  4.  335 U.S. at 51.
  5.  335 U.S. at 32.
  6.  335 U.S. at 32.