Administrative Subpoenas Under Crs Title 12: Defensing Potential Abuse
| Publication year | 1993 |
| Pages | 723 |
| Citation | Vol. 04 No. 1993 Pg. 723 |
1993, April, Pg. 723. Administrative Subpoenas Under CRS Title 12: Defensing Potential Abuse
Virtually every professional and business person or entity regulated in Colorado pursuant to Title 12 of the Colorado Revised Statutes is subject to administrative subpoenas issued in furtherance of disciplinary or financial investigations.(fn1) This article discusses several of the techniques available to the licensee contemplating resistance to such government demands for documentary production.
Colorado, along with many other states, finds administrative subpoenas enforceable, without probable cause, when (1) the investigation is for a lawfully authorized purpose; (2) the information is relevant to the inquiry; and (3) the subpoena is specific enough to obtain documents adequate, but not excessive, for the inquiry.(fn2) Thus, administrative subpoenas which fail to meet all three of these elements are subject to challenge.
Colorado State Board of Nursing v. Bethesda Psychiatric Hospital(fn3) settled the question of whether regulatory authority to subpoena supersedes the individual licensee's privilege to safeguard his or her own medical treatment records. The answer is "no." Title 12 provisions and exceptions within CRS § 13-90-107 (1)(d)(III) entitle an agency to the records of care "rendered by" a health professional, not care "rendered to" him or her.
Where there is an "expectation of privacy" in records held by third parties, such as financial institutions, the licensee has the right to notice of the issuance of such subpoenas and the right to challenge their validity.(fn4) Further, if it was not clear before the Bethesda case, the subpoenaed third party also has standing to resist on behalf of persons or entities for whom or which it asserts a duty of either privilege (such as psychiatrict records) or confidentiality (such as banking records).
Beyond the limitations described above, others for which judicial approval has not yet been obtained may be available.
While it is clear in present Colorado law that an administrative subpoena issues without the necessity of "probable cause," the question remains as to whether some measurable reason is still required. Recognized fifty years ago in Colorado, but never...
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