During the dawn raid, the government agency aims to collect information, for example from paper records, computers, email inboxes, telephones and cloud environments and in interviews. Criminal investigation agencies are permitted to conduct their own search. Administrative investigation agencies can only make an information request, with which the company must comply. Some government agencies can act in both a criminal and an administrative capacity. It is therefore important to determine which government agency is conducting the raid and in what capacity. This will help determine whether the agency is itself permitted to look for information or has to ask for information.
Criminal investigation: allowing the search
- Criminal investigation agencies (such as the Public Prosecution Service, the Fiscal Intelligence and Investigation Service (FIOD) and the police) are permitted to carry out their own search. They can confiscate or copy any items (whether physical or digital) in the interest of fact-finding.
- The company must allow this. However, the company does not need to cooperate and does not need to give permission.
- If the criminal investigation agency asks for document locations or passwords, the company does not need to provide them. However, this may prompt the agency to expand its search and confiscate/copy digital carriers, which may prolong the process. Check with the lawyer whether this justifies cooperation.
- If the criminal investigation agency asks substantive questions, the company does not need to answer them. The right to remain silent applies. See also Subject: Interviews.
- Only information protected by lawyers’ or civil-law notaries’ legal privilege cannot be examined by the criminal investigation agency.
Administrative investigation: obligation to cooperate
- Supervisory authorities governed by administrative law (such as the Dutch Authority for the Financial Markets (AFM), the Dutch Central Bank (DNB), the Netherlands Authority for Consumers and Markets (ACM), the Netherlands Food and Consumer Product Safety Authority (NVWA), etc.) are not permitted to conduct their own search. These government agencies will always need to request access to a specific room, cabinet or digital environment. They depend on the company’s cooperation.
- The company must, in principle, comply with requests of this nature. For example, it must state where specific information is located, provide access to rooms or cabinets, provide passwords, etc. This obligation does not apply in respect of (a) information falling outside the scope of the investigation purpose, (b) information protected by lawyers’ or civil-law notaries’ legal privilege and (c) private information.
- Cooperation is also mandatory when questions are asked. These must be answered truthfully. The only exception to this is if the company has the right to remain silent. The government agency must point this out. When in doubt, the interviewee can ask if this right applies. See also Subject: Interviews.
