§ 6-36-9 - Investigation by attorney general.
SECTION 6-36-9
§ 6-36-9 Investigation by attorneygeneral. – (a) General power of investigation. Whenever it appears to the attorneygeneral, upon reasonable cause, that any person has engaged in, engages in, oris about to engage in any act or practice prohibited by this chapter, or thatany person has assisted or participated in any plan, scheme, agreement, orcombination of the nature prohibited by this chapter, or whenever the attorneygeneral believes it to be in the public interest that an investigation be made,he or she may in his or her discretion either require or permit the complainantto file with the attorney general a statement in writing under oath orotherwise as to all facts and circumstances concerning the subject matter whichthe attorney general believes to be in the public interest to investigate. Theattorney general may also require any other data and information from thecomplainant that he or she deems relevant and may make any special andindependent investigations that he or she deems necessary in connection withthe matter. In addition, the attorney general may take any measures that willnot violate due process of law to preserve the confidentiality of thecomplainant's identity.
(b) Investigative demand. (1) Whenever theattorney general has reason to believe that any person may have knowledge or bein possession, custody, or control of any documentary material pertinent to aninvestigation of a possible violation of this chapter, the attorney general mayissue in writing and cause to be served upon the person an investigative demandby which the attorney general may:
(i) Compel the attendance of the person and require him orher to submit to examination and give testimony under oath;
(ii) Require the production of documentary material pertinentto the investigation for inspection or copying; and/r
(iii) Require answer to written interrogatories to befurnished under oath.
(2) The power to issue investigative demands shall not abateor terminate by reason of the bringing of any action or proceeding under thischapter. The attorney general may issue successive investigative demands to thesame person in order to obtain additional information pertinent to an ongoinginvestigation.
(c) Contents of investigative demand. Eachinvestigative demand shall:
(1) State the section or sections of the chapter the allegedviolation of which is under investigation, and the general subject matter ofthis investigation;
(2) Prescribe a reasonable return date no less than forty(40) days after service of the investigative demand, provided that an earlierdate may be prescribed under compelling circumstances, but in no event lessthan twenty (20) days;
(3) Specify the time and place at which the person is toappear and give testimony, produce documentary material, and furnish answers tointerrogatories, or do any or a combination of these things;
(4) Describe by class any documentary material required to beproduced, so as to clearly indicate what is demanded; and
(5) Contain any interrogatories to which written answersunder oath are required.
(d) Prohibition against unreasonable demand. Noinvestigative demand shall:
(1) Contain any requirement which would be unreasonable orimproper if contained in a subpoena issued by a court of this state; or
(2) Require the disclosure of any material or informationwhich would be privileged, or which for any other reason would not be requiredto be disclosed by a subpoena issued by a court of this state, including, butnot limited to, trade secrets or confidential scientific, technical,merchandising, production, management, or commercial information, to the extentthat the material or information is protected pursuant to the rules of civilprocedure of the superior court.
(e) Offer of documentary evidence. Where theinformation requested upon oral examination or written interrogatory pursuantto an investigative demand may be derived or ascertained from the businessrecords of the person upon whom the demand has been served, or from anexamination, audit, or inspection of the business records, or from acompilation, abstract, or summary based on the records, and the burden ofderiving or ascertaining the answer is substantially the same for the attorneygeneral as for the person from whom the information is requested, it issufficient for that person to specify the records from which the answer may bederived or ascertained and to afford the attorney general reasonableopportunity to examine, audit, or inspect the records and to make copies,compilations, abstracts, or summaries.
(f) Service of investigative demand. An investigativedemand may be served by any means provided under the Rhode Island rules ofcivil procedure for service of a complaint in a civil action.
(g) Motion to quash. Within forty (40) days after theservice of an investigative demand or at any time before the return datespecified in the demand, whichever period is shorter, the person served mayfile in a state superior court and serve upon the attorney general a petitionfor an order of court modifying or setting aside the demand. The time allowedfor compliance in whole or part with the demand as deemed proper and ordered bythe court shall not run while the petition is pending before the court. Thepetition shall specify each ground upon which the petitioner relies in seekingrelief, and may be based upon any failure of the demand to comply with theprovisions of this chapter or upon any constitutional or other legal right,privilege, or qualified privilege of the party, including that the material orinformation sought constitutes trade secrets or confidential scientific,technical, merchandising, production, management, or commercial information. Ifqualified privilege is raised, the court may order the person to comply withthe demand only upon showing of particularized need and subject to anappropriate protective order. The provisions of this subsection shall be thesole and exclusive means for challenging the requirements of a demand.
(h) Those authorized to examine. The examination ofall persons pursuant to this section shall be conducted by the attorney generalor a representative designated in writing by him or her before an officerauthorized to administer oaths in this state. The statements made shall betaken down stenographically or by a sound recording device and shall betranscribed.
(i) Right of persons served with investigativedemands. (1) Any person required to attend and give testimony orto submit documentary material pursuant to this section shall be entitled toretain or, on payment of lawfully prescribed cost, to procure a copy of anydocument he or she produces and of his or her own statements as transcribed.
(2) Any person compelled to appear under a demand for oraltestimony pursuant to this section may be accompanied, represented, and advisedby counsel. Counsel may advise the person in confidence, either upon therequest of the person or upon counsel's own initiative, with respect to anyquestion asked of the person. The person or counsel may object on the record toany question, in whole or part, and shall briefly state for the record thereason for the objection. An objection may properly be made, received, andentered upon the record when it is claimed that the person is entitled torefuse to answer the question on grounds of any constitutional or other legalright or privilege, including the privilege against self incrimination. Theperson shall not otherwise object to or refuse to answer any question, andshall not by him or herself or through counsel otherwise interrupt the oralexamination. If the person refuses to answer any question, the attorney generalmay petition the superior court for an order compelling the person to answerthe question.
(3) The information and materials supplied to the attorneygeneral pursuant to an investigative demand shall not be permitted to becomepublic or disclosed by the attorney general or his or her employees beyond theextent necessary for antitrust enforcement purposes in the public interest.
(4) Upon the completion of a case brought under this chapter,the attorney general shall return any documents, answers, and transcripts, andall copies of the material, which have not passed into the control of the courtthrough their introduction into the record, to the person who provided thedocuments, answers, or testimony. If no case in which the material may be usedhas been commenced within a reasonable time after completion of the examinationor analysis of all documentary material, but in no event later than two (2)years after production of the documentary material, the attorney general shall,upon written request of the person who produced the material, return alldocuments, answers, and transcripts, and all copies of the material, to theperson who provided them.
(5) The attorney general shall have the authority, at anytime, to modify or revoke any civil investigative demand and to stipulate toprotective orders with respect to documents and information submitted inresponse to a demand. The protective orders may include provisions appropriateto the full and adequate protection of trade secrets.
(j) Witness expenses. All persons served with aninvestigative demand, other than those persons whose conduct or practices arebeing investigated, or any officer, director, or person in the employment ofthe person under investigation, shall be paid the same fees and mileage as paidwitnesses in the courts of this state. No person shall be excused fromattending the inquiry pursuant to the mandate of an investigative demand, fromgiving testimony, from producing documentary material, or from being requiredto answer questions on the ground of failure to tender or pay a witness fee ormileage unless demand for the fees or mileage is made at the time testimony isabout to be taken and unless payment is not made upon demand.
(k) Refusal of witness to testify or producedocuments. Any person who shall neglect or refuse to attend and givetestimony or to answer any lawful inquiry or to produce documentary material,if in his or her power to do so, in obedience to an investigative demandpursuant to this section, may be adjudged in civil contempt by the superiorcourt until the time that he or she purges him or herself of contempt bytestifying, producing documentary material, or presenting written answers asordered. Any person who commits perjury or false swearing in response to aninvestigative demand pursuant to this section shall be punishable pursuant tothe provisions of chapter 33 of title 11.
(l) Duty to testify immunity. (1) If, inany investigation brought by the attorney general pursuant to this section, anyindividual shall refuse to attend, to give testimony, to produce documentarymaterial, or to answer a written interrogatory in obedience to an investigativedemand, or under order of court, on the ground that the testimony or materialrequired of him or her may tend to incriminate him or her, that person may beordered to attend and to give testimony, to produce documentary material or toanswer the written interrogatory, or to do an applicable combination of these.The order as previously stated shall be an order of court given after a hearingin which the attorney general has established a need for the grant of immunity,as provided in this subsection.
(2) The attorney general may petition any superior courtjustice for an order as described in subdivision (l)(1). The petition shall setforth the nature of the investigation and the need for the immunization of thewitness.
(3) Testimony so compelled shall not be used against thewitness as evidence in any criminal proceedings against him or her in anycourt. However, the grant of immunity shall not immunize the witness from civilliability arising from the transactions about which testimony is given, and heor she may nevertheless be prosecuted or subjected to penalty or forfeiture forany perjury, false swearing, or contempt committed in answering or in failingto answer or in producing evidence or failing to do so in accordance with theorder. If a person refuses to testify after being granted immunity fromprosecution and after being ordered to testify as previously stated, he or shemay be adjudged in civil contempt by the superior court until the time that heor she purges him or herself of contempt by testifying, producing documentarymaterial, or presenting written answers as ordered. The foregoing shall notprevent the attorney general from instituting other appropriate contemptproceedings against any person who violates any of the above provisions.
(m) Duty of public officials. It shall be the duty ofall officials of this state and its public bodies, their deputies, assistants,clerks, subordinates, or employees, and all other persons to render and furnishto the attorney general when so requested all information and assistance intheir possession or within their power.