bx&er 3, 1987
Mr. Henry B. Keene Opinion NO. JM-830
Chairman
Board of Pardons and Paroles Re: Whether the Texas Com-
P. 0. Box 13401 mission on Human Rights
Austin, Texas 78711 may require a state agency
to "seal, remove, and/or
Mr. Vernon M. Arrell modify" documents contained
Commissioner in the personnel file of an
Texas Rehabilitation individual found to be the
Commission victim of discriminatory
118 E. Riverside Drive action (RQ-1148)
Austin, Texas 78704
Gentlemen:
You ask whether the Texas Commission on Human Rights
and/or the federal Equal Employment Opportunity Commission
(EEOC) may require an employer state agency to "seal,
remove, and/or modify" documents contained in the
personnel file of an employee believed to be the victim of
discriminatory action. YOU explain that when a claim
before the state or federal commission is negotiated, the
commission frequently will order that the complainant's
personnel file be sealed or physically enclosed in an
envelope and marked with words to the effect that the
envelope shall only be opened by court order. YOU ask
whether this action is prohibited by the Texas Open
Records Act, article 6252-17a, V.T.C.S., as interpreted in
Attorney General Opinion MB-327 (1981).
As indicated in Attorney General Opinion MW-327,
under the Open Records Act, all information held, as
described in section 3(a), by governmental bodies must be
released unless the information falls within one of the
act's specific exceptions to disclosure. Section 5 of the
act directs the custodian of public records to preserve
public records from alteration. Section 12 makes the
willful destruction or alteration of public records a
misdemeanor. Attorney General Opinion MB-327 determined
that these provisions prohibit a state agency from
expunging references to an employment termination and
from altering the records to reflect that the employee
separated from the agency in a different manner. It
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.
Mr. Henry B. Keene
Mr. Vernon M. Arrell
Page 2 (.I&830)
should be noted, however, that these provisions refer to
specific, willful actions. A criminal offense under
section 12 necessarily depends on the state of mind of the
actor in each case. Under the circumstances you present,
a custodian of records could believe that the state or
federal commission has the authority to order certain
records sealed. The legal effect of this belief on the
state of mind element of a criminal offense und.er the Open
Records Act is not entirely clear. Because your question
can be resolved by examination of the powers of the state
and federal commissions, it is not necessary to resolve
this question. Moreover, this office lacks jurisdiction
to determine whether criminal offenses actually have
occurred under the Open Records Act.
The first part of your question relates to the state
commission. You ask whether the Texas Commission on Human
Rights holds the authority to require state agencies to
withhold certain information from public disclosure. As a
general rule, state agencies hold only the authority
granted expressly or by necessary implication in the Texas
statutes and constitution. The purpose of the statutory
scheme creating the commission is to encourage the
voluntary resolution of claims. Frequently, the sealing
of personnel records is part of the remedy sought by the
victims of discrimination. Adverse and untrue or unfair
comments or evaluations in personnel files may foreclose
future promotions, salary increases, or employee benefits.
With regard to claims involving. private employers, no
state statute, such as the Open Records Act, generally
makes private employer records open to the public. The
commission does not "require" or *'ordeP' the employer to
close records: the commission simply refuses to approve a
voluntary resolution of a discrimination claim unless the
employer agrees to close the files. With regard to claims
involving public employers, however, the state agency
cannot simply agree to close records that are subject to
the Texas Open Records Act.
It is well-established that a governmental body
cannot close information by agency rule, see Industrial
Foundation of the South v. Texas Industrial Accident
Board, 540 S.W.2d 668, 677 (Tex. 1976), cert. denied, 430
U.S. 931 (1977). In the Industrial Foundation case, the
Texas Supreme Court addressed the Industrial Accident
Board's claim that certain requested information was ?
excepted from mandatory disclosure by section 3(a)(l) of
the Open Records Act because the information was deemed
confidential under one of the board's rules. Section
3(a)(l) protects "information deemed confidential by ?
law, either Constitutional, statutory, or by judicial
p. 3972
Mr. Henry B. Xeene
Mr. Vernon M. Arrell
Page 3 (JF-830)
decision." The board asserted that its confidentiality
rule had the force and effect of a statute. The board
enacted the rule pursuant to its general rulemaking
authority.
The court held that:
While a rule may have the force and effect
of a statute in other contexts, we do not
believe that a governmental agency may bring
its information within exceptioz ;a:;l) by
the promulgation of a rule. such
authority merely from general rule-making
powers would be to allow the agency to
circumvent the very purpose of the Open
Records Act. Absent a more soecific or&t
of authority from the Leoislature to make
such a rule. the rule must vield to the
statute. (Footnotes omitted:) (Emphasis
added.)
540 S.W.2d at 677. In light of this decision, the
commission must have a specific grant of authority to
require state agencies to close certain records.
You both cite a particular provision in subsection
(c) of section 6.01 of the Commission on Human Rights Act,
article 5221k, V.T.C.S., as the basis for the commission's
authority to order government personnel files sealed.
Subsection (c) of section 6.01 provides:'
If, after an investigation, the executive
director or his designee determines that
there is reasonable cause to believe that
the respondent has engaged in an unlawful
employment practice, as alleged in the
complaint, the executive director or his
designee shall review the evidence in the
record with a panel of three commissioners.
If, after the review, at least two of the
three commissioners determine that there is
reasonable cause to believe that the respon-
dent has engaged in an unlawful employment
practice, the executive director shall issue
a written determination incorporating his
finding that the evidence supports the
complaint and shall serve a copy of the
determination on the complainant, the
respondent, and other agencies as required
by law. The commission shall endeavor to
eliminate the alleoed unlawful emolovment
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Mr. Henry B. Keene
Mr. Vernon M. Arrell
Page 4 (JM-830)
Practice bv informal methods of conference,
conciliation. and nersuasion. The commis-
sion, its executive director, or its other
officers or employees may not make public,
without the written consent of the com-
plainant and respondent, information about
the efforts in a particular case to resolve
an alleged discriminatory practice by
conference, conciliation, or persuasion,
whether or not there is a determination of
reasonable cause. (Emphasis added.)
The underscored language tracks the language in section
706(b) of Title VII of the Civil Rights Act of 1964, as.
amended. See 42 U.S.C. §2000e, et seq. The underscored
language does not grant the commission the authority to
require state agencies to seal documents. Nor does it
grant state agencies the authority to agree to seal
documents.
No other provision in article 5221k grants the com-
mission express authority to order state employers to seal
records. Subsections (6) and (10) of section 3.02 provide
that the commission has the power:
(6) to receive, investigate, seek to
conciliate, and pass on complaints alleging
violations of this Act, and file civil
actions to effectuate the.purposes of this
Act;
and the power:
(10) to adopt, issue, amend, and rescind
procedural rules to carry out the purposes
and policies of this Act. (Emphasis added.)
It is not clear whether a rule creating a remedy for a
discrimination claim may be characterized properly as
a "procedural" rule. Moreover, as indicated by the
Industrial Foundation case, the commission must have a
specific grant of authority.
In contrast, subsection 7 Of section 3.02 provides
the commission with authority:
to request and, if necessary, compel by sub-
poena the attendance of necessary witnesses
for examination under oath or affirmation,
and the production, for inspection and
copying, of records, documents, and other
p. 3974
Mr. Henry B. Keene
Mr. Vernon M. Arrell
Page 5 UI+830)
evidence relevant to the investigation of
alleged violations of this Act. The commis-
- sion by rule may authorize a commissioner or
one of its staff to exercise the powers
stated in this subdivision on behalf of the
commission.
Thus, the commission has the authority to obtain certain
records. A state agency may not use the Open Records Act
to refuse to provide records to the commission. See also
V.T.C.S. art. 5221k, 58.02(b). Additionally, section 8.01
expressly authorizes the commission to require certain
employers to maintain certain records. NO similar
provision applies to closing records.
Subsection (a) of section 8.02 of the act provides:
An officer or employee of the commission may
not make public any information obtained by
the commission under its authority under
Section 6.01 of this Act except as necessary
to the conduct of a proceeding under this
Act.
I-
This provision directs the commission to withhold certain
information obtained under section 6.01. Similarly, the
last sentence in subsection (c) of section 6.01 prohibits
the commission from disclosing, without consent from
both of the parties, "information about the efforts in a
particular case to resolve an alleged discriminatory
practice" (emphasis added). Pre-existing information in a
state agency's personnel file does not constitute informa-
tion about efforts to resolve a discrimination claim.
Thus, neither of these provisions provides express
authority for the commission to order state agencies to
seal certain of the agencies' personnel records.
Similar considerations apply to the federal Equal
Employment Opportunity Commission (EEOC). The federal
commission has the authority to investigate and attempt to
resolve discrimination claims under Title VII of the Civil
Rights Act by informal methods of conciliation. See 42
U.S.C. J§2000e-4(g), 2000e-5. Like the state commission‘s
authority, which is based on the federal act, such efforts
involve the voluntary actions of the parties involved.
The EEOC has the authority to make findings of fact and to
issue a reasonable cause determination on the existence
of unlawful employment practices. See Benneci v. Deoart-
ment of Labor. New York State Division of Emolovment,
388 F. Supp. 1080 (S.D.N.Y. 1975). The dissemination of
adverse references for discriminatory reasons is itself an
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Mr. Henry B. Keene
Mr. Vernon M. Arrell
Page 6 (J&830)
unlawful employment practice under the federal act. Smith
v. Secretarv of Navv, 659 F.2d 1113, 1121 (D.C. Cir.
1981). Consequently, if an employer refuses to refrain
voluntarily from disseminating adverse employment records,
the EEOC may refuse to approve the informal resolution.
It may also decide to issue a reasonable cause determina-
tion. If all else fails, the EEOC may file a civil
lawsuit against private1 employers. See 52000e-5(f).
Conciliation is, however, for obvious reasons, the
preferred method for resolving claims. See Alexander v.
Gardner-Denver Co., 415 U.S. 36, 44 (1974).
Section 2000e-5 provides the EEOC's specific
authority to prevent unlawful employment practices.
Subsection (b) of section 2000e-5 provides, in part:
Whenever a charge is filed by or on behalf
of a person claiming to be aggrieved, or by
a member of the Commission, alleging that an
employer, employment agency, labor organiza-
tion, or joint labor-management committee
controlling apprenticeship or other training
or retraining, including on-the-job training
programs, has engaged in an unlawful employ-
ment practice, the Commission shall serve
a notice of the charge . . . within ten
(10) days, and shall make an investigation
thereof. . . . If the Commission determines
after such investigation that there is
reasonable cause to believe that the charge
is true, the Commission shall endeavor to
eliminate anv such alleaed unlawful emolov-
ment oractice bv informal methods of con-
ference. conciliation, and nersuasion.
Nothing said or done during and as a part of
such informal endeavors may be made public
by the Commission, its officers or
employees, or used as evidence in a
subsequent proceeding without the written
consent of the persons concerned. (Emphasis
added.)
1. The authority to file suit does not include "a
government, governmental agency, or political subdivision
named in the charge." & §2000e-5(f)(l).
p. 3976
Mr. Henry B. Keene
Mr. Vernon M. Arrell
Page 7 (JM-830)
This provision does not provide authority to order state
agencies to close records subject to the Texas Open
- Records Act.
Neither this provision nor any other provision of the
federal act expressly authorizes the EEOC to order state
agencies to seal personnel records. This power is beyond
the commission's authority to approve the voluntary
resolution of discrimination complaints. The EEOC lacks
the authority to authorize or require a state agency to
ignore a state statute such as the Open Records Act. The
EEOC has no power to adjudicate claims or impose adminis-
trative sanctions. Alexander v. Gardner-Denver Co., 415
U.S. at 44. Responsibility for the enforcement of the act
is vested in the federal courts. Id. See also Sears,
Roebuck & Co. v. Eoual EmDlovment Onoortunitv Commission,
435 F.Supp. 751, 761 (D.D.C. 1977) (commission lacks
authority to issue binding substantive rules).
A brief submitted on behalf of the Texas State
Teachers Association notes that both the state act and the
federal act upon which it is premised authorize the courts
to order appropriate affirmative and equitable relief that
includes sealing documents. See 42 U.S.C. 52000e-5(g) ;
V.T.C.S. art. 5221k, 57.01(c): see also Smith v. Secretary
of Navy, 659 F.2d 1113 (D.C. Cir. 1981); Dual v. Griffin,
446 F.- Supp. 791 (D.D.C. 1977): Sherkow v. Wisconsin
DeDartment of Public Instruction, 17 F.E.P. 1527 (W.D.
Wis. 1978). The Texas Commission on Human Riahts also
cites section 7.01(c) of the state act for the source of
its authority under section 6.01 to conciliate voluntary
resolution of claims. We have no doubt that expunction is
an appropriate judicial remedy to afford relief under both
the federal act and the state act. Because section
3(a) (7) of the Texas Open Records Act excepts from
required public disclosure information sealed by court
order, this judicial remedy is not in conflict with the
Open Records Act. State agencies do not, however, hold
the extensive powers held by the courts. Section 6.01 does
not incorporate the powers granted to the courts in
section 7.01(c). As indicated, the federal commission
lacks authority to adjudicate claims or impose adminis-
trative sanctions.
This does not mean, however, that information re-
P lating to discrimination claims in the personnel files of
state agencies must be disclosed to the public. Section
3(a)(l) of the Open Records Act protects information
deemed confidential by law, including constitutional
,- privacy and common-law privacy. Industrial Foundation of
the South v. Texas Industrial Accident Board, 540 S.W.2d
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Mr. Henry B. Keene
Mr. Vernon M. Arrell
Page 8 (J'S830)
at 682. One theory of common- law privacy is "false light
in the public eye," a theory analogous to defamation. Id.
A governmental body must withhold information under
section 3(a)(l) on the basis of "false light" privacy if
it finds that release of the information would be highly
offensive to a reasonable person, that public interest in
the information is minimal, and that there exists serious
doubt about the truth of the information. Open Records
Decision No. 438 (1986). Consequently, if the release of
an employee's personnel file that contains discriminatory .
adverse comments or evaluations meets the above test, the
state agency must withhold the information. See V.T.C.S.
art. 6252-17a, 910(a) (prohibiting release of confidential
information). Additionally, as noted in Attorney General
Opinion MN-327, the state agency may include statements in
the personnel file explaining the inaccuracy of existing
comments or evaluations. Both the state and federal
commission may refuse to approve conciliation agreements
that refuse to include explanatory statements clarifying
any adverse comments in personnel files held by state
agencies.
SUMMARY
In light of the Texas Open Records Act,
article 6252-17a, V.T.C.S., state agencies
must have specific authority to make in-
formation confidential. The Texas Human
Rights Commission lacks. the statutory
authority under article 5221k, V.T.C.S., to
require employer state agencies to seal
documents contained in the personnel file of
an employee believed to be the victim of
discriminatory action. The federal Equal
Emolovment Oonortunitv Commission lacks
authority under the Civil Rights Act, 42
U.S.C. §2000e, et se ., to order state
agencies to seal documents.
Very truly
J L
JIM MATTOX
Attorney General of Texas
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
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Mr. Henry B. Keene
Mr. Vernon M. Arrell
Page 9 (JM-830)
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
p. 3979