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Tesoro Petroleum Corporation v. State2/15/2002
are not otherwise state employees the same access to documents as that afforded to state employees under this section. By specifying that the CID must identify state employees or representatives, AS 45.50.592(b)(4) places employees and representatives on equal footing for purposes of receiving documents produced in response to the CID.
Moreover, we agree with the superior court's conclusion that the "good cause" section of AS 45.50.592(e) is intended for situations in which a third party seeks access to responsive documents, as was the case in Novak v. Orca Oil Co. It seems unlikely that the legislature intended to restrict the attorney general's authority to conduct an investigation by requiring the attorney general to show good cause each time he or she requires outside legal expertise.
C. The Superior Court Applied the Correct Standard for Reviewing the CID.
Tesoro contends that the superior court inappropriately reviewed the breadth and scope of the CID under a deferential "prosecutorial discretion" standard.
Tesoro argues that deference to prosecutorial discretion is not warranted because this case raises no issues of separation of powers or unique regulatory expertise. The State responds that important policy considerations support granting broad investigatory power to the attorney general and interpreting the attorney general's antitrust subpoena powers consistently with Alaska Civil Rule 26(b): "If the scope of the attorney general's antitrust subpoena power is any less than that allowed by Civil Rule 26(b), the attorney general will be put in the untenable position of having to decide whether to file suit first to get adequate information."
The language of the statute provides the appropriate starting point for analysis. Alaska Statute 45.50.592(c)(2) provides that a CID may not "contain a requirement that would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of the state." (Emphasis added.) Civil Rule 45(b)(1), which governs subpoenas duces tecum, permits courts to "void or modify the subpoena if it is unreasonable or oppressive."
We have not yet had an opportunity to explain in detail when a CID should be held unreasonable, improper, or oppressive. The State argues that our decision in Matanuska Maid, Inc. v. State should control this analysis. There, we adopted the three requirements that federal courts use to examine CIDs: " t is sufficient for fourth amendment purposes that the subpoena is issued pursuant to lawful authority, relevant to the inquiry for which it is issued and contains adequate specification of the documents to be produced."
But in Matanuska Maid, we considered CIDs issued under AS 45.50.495 and former AS 45.50.200 in light of constitutional provisions prohibiting unreasonable search and seizure. The reasonableness standard set forth in Matanuska Maid therefore pertains to search and seizure, but not necessarily to the statute and Civil Rule 45.
Federal courts have adopted the same standard described in Matanuska Maid for judicial review of CIDs and other administrative subpoenas as well. In re Sealed Case involved a motion to compel the production of documents pursuant to an administrative subpoena duces tecum. The Circuit Court for the District of Columbia applied a standard of review almost identical to the Matanuska Maid standard: "Our role in a subpoena enforcement proceeding is limited to determining whether the inquiry is within the authority of the agency, the demand is not too indefinite and the information sought is reasonably relevant."
Federal courts have shown deference to administrative agencies when review
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