.
The Attorney General of Texas
June 3, 1983
JIM MATTOX
Attorney General
Honorable Carl A. Parker Opinion No. JM-37
Supreme Court Building
P. 0. BOX 12546 Chairman
Ausfin. TX~ 76711. 2546 Senate Education Committee Re: Whether oral history
5121475-2501 Texas State Senate interviews acquired by an
Telex 9101674-1367 P. 0. Box 12068 institution of higher educa-
Telecopier 5121475-0266
Austin, Texas 78711 tion are public information
under the Open Records Act
1607 Main St.. Suite 1400
Dallas. TX. 75201.4709 Dear Senator Parker:
2141742-6944
You ask the following questions concerning public access to oral
4624 Alberta Ave.. Suite 160 history interviews under article 6252-17a, V.T.C.S., the Texas Open
El Paso. TX. 79905.2793 Records Act:
9151533-3464
(1) whether recorded or transcribed oral
0 Dallas Ave.. Suite 202
history interviews acquired by an institution of
nouston. TX. 77002-6966 higher education for historical purposes are
713,650.0666 public information under the Texas Open Records
Act;
806 Broadway. Suite 312
(2) whether recorded or transcribed oral
Lubbock, TX. 79401.3479
6061747-5236
history interviews acquired by an employee
(historian, researcher, teacher) of an institution
of higher education for historical purposes are
4309 N. Tenth. Suite B public information under this act;
McAllen. TX. 76501-1685
5121662~4547
(3) under what circumstances could recorded or
transcribed oral history interviews acquired by an
200 Main Plaza. Suite 400 institution of higher education for historical
San Antonio, TX. 76205.2797 purposes be exempted from the act.
5121225-4191
Your questions are prompted by Senate Bill No. 161 which, if enacted,
An Equal Opportunityl would add to the Education Code a section 51.910 to read as follows:
Affirmative Action Employer
Sec. 51.910. INTERVIEWS FOR HISTORICAL
PURPOSES. An oral interview that is obtained for
historical purposes by an agreement of
confidentiality between an interviewee and a state
institution of higher education is not public
information. The interview becomes public
p. 157
Honorable Carl A. Parker - Page 2 (JM-37)
information when the,,conditions of the agreement
of confidentiality have been met.
Institutions of higher education are subject to the Texas Open Records
Act, and records in their custody are available to the public unless
excepted by a provision of the act or by some other law. See, e.g.,
Attorney General Opinion H-436 (1974); Open Records Decision Nos. 101
(1975); 16 (1974).
The Open Records Act prevents institutions of higher education
from making agreements to keep information confidential, unless they
are authorized by law to enter into such agreements. Attorney General
Opinion H-258 (1974); Open Records Decision No. 55A (1975). Thus, a
university's promise to maintain oral history interviews as
confidential will be unenforceable unless it is based on statutory
authority. The Open Records Act is applicable to information on tape
as well as transcriptions thereof. Open Records Decision No. 32
(1974).
In answering your question, we do not have any specific record
before us, nor have particular confidentiality provisions been raised.
The confidentiality provisions of the Open Records Act are found in
section 3 as follows:
(a) All information collected, assembled, or
maintained by governmental bodies pursuant to law
or ordinance or in connection with the transaction
of official business is public information and
available to the public during normal business
hours of any governmental body, with the following
exceptions only:
(1). information deemed confidential by law,
either Constitutional, statutory, or by judicial
decision;
(2) information in personnel files, the
disclosure of which would constitute a clearly
unwarranted invasion of personal privacy;
provided, however, that all information in
personnel files of an individual employee within a
governmental body is to be made available to that
individual employee or his designated
representative as is public information under this
Act;
(3) information relating to litigation of a
criminal or CiVil nature and settlement
negotiations, to which the state or political
p. 158
Honorable Carl A. Parker - Page 3 (JM-37)
subdivision is, or may be, a party, or to which an
officer or employee of the state or political
subdivision, as a consequence of his office or
employment, is or may be a party, that the
sttorney general or the respective attorneys of
the various political subdivisions has determined
should be withheld from public inspection;
(4) information which. if released, would give
advantage to competitors or bidders;
(5) information pertaining to the location of
real or personal property for public purposes
prior to public announcement of the project, and
information pertaining to appraisals or purchase
price of real or personal property for public
purposes prior to the formal award of contracts
therefor;
(6) drafts and working papers involved in the
preparation of proposed legislation;
(7) matters in which the duty of the Attorney
General of Texas or sn attorney of a political
subdivision, to his client, pursuant to the Rul.es
and Canons of Ethics of the State Bar of Texas are
prohibited from disclosure, or which by order of a
court are prohibited from disclosure;
(8) records of law enforcement agencies that
deal with the detection and investigation of crime
and the internal records and notations of such law
enforcement agencies which are maintained for
internal use in matters relating to law
enforcement;
(9) private correspondence and communications
of an elected office holder relating to matters
the disclosure of which would constitute an
invasion of privacy;
(10) trade secrets and commercial or financial
information obtained from a person and privileged
or confidential by statute or judicial decision;
(11) inter-agency or intra-agency memorandums
or letters which would not be available by law to
a party other than one in litigation with the
agency;
p. 159
Honorable Carl A. Parker - Page 4 (JM-37)
(12) information contained in or related to
examination, operating, or condition reports
prepared by, on behalf of, or for the use of an
agency responsible for the regulation or
supervision of financial institutions, and/or
securities, as that term is defined in the Texas
Securities Act;
(13) geological and geophysical information
and data including maps concerning wells, except
information filed in connection with an
application or proceeding before any agency;
(14) student records at educational
institutions funded wholly, or in part, by state
revenue; but such records shall be made available
upon request of educational institution personnel,
the student involved, or that student's parent,
legal guardian, or spouse;
(15) birth and death records maintained by the
Bureau of Vital Statistics in the State of Texas;
(16) the audit working papers of the State
Auditor;
(17) the home addresses and home telephone
numbers of peace officers as defined by Article
2.12, Code of Criminal Procedure, 1965, as
amended, or by Section 51.212, Texas Education
Code; [and]
(18) information contained on or derived from
triplicate prescription forms filed with the
Department of Public Safety pursuant to Section
3.09 of the Texas Controlled Substances Act, as
amended (Article 4476-15, Vernon's Texas Civil
Statutes).
Some of these exceptions are quite narrow, applying only to a specific
type of record or records held by a specific custodian. These include
sections 3(a)(6), 3(a)(8), 3(a)(9), 3(a)<12), 3(a)(13), and 3(a)(15)
through 3(a)(18). It is difficult to imagine how any of these
sections could apply to interviews obtained for historical purposes by
state institutions of higher education. These provisions may be
disregarded as they would not exempt records of oral history
interviews from public disclosure.
p. 160
Honorable Carl A. Parker - Page 5 (JM-37)
Other exemptions to the Open Records Act might, under some
circumstances, except records of certain interviews or portions of
certain interviews from public disclosure. These are sections
3(a)(l), (protecting information deemed confidential by law, including
a common law or constitutional right of privacy); 3(a)(2) (protecting
certain private information in personnel files); 3(a)(3) (the
litigation exception); 3(a)(4) (exception for information related to
competitive bidding); 3(a)(5) (protects negotiating position of
governmental body with respect to real property acquisitions and
donations); 3(a)(7) (attorney-client privilege); 3(a)(lO) (trade
secrets); 3(a)(ll) (inter-agency or intra-agency memoranda); and
3(s)(14) (student records at educational institutions). Although on
given facts, these provisions might exempt portions of certain
interviews from public disclosure, none of them would except all oral
history interviews.
In summary, there is no general exception that prevents public
disclosure of records or oral history interviews acquired by an
institution of higher education or by an employee on behalf of the
institution. Portions of some oral history interviews might be
excepted from public disclosure by specific exceptions to the Open
Records Act. Interviews filling certain narrow criteria might be
excepted from public disclosure in their entirety. If an interview is
conducted by a faculty member or researcher for his own use, and not
under the control or direction of the university, then the records
thereof might qualify as his personal notes. Open Records Decision
No. 77 (1975). In all probability, however, the typical oral history
interview acquired by an institution of higher education as part of
the institution's official activities would be available to the public
under the Open Records Act.
SUMMARY
Oral history interviews acquired by an
institution of higher education in connection with
its official activities would as a general matter
be available to the public under the Open Records
Act. Certain portions of some interviews, or some
interviews in their entirety might be excepted
from public disclosure if they fall within
exceptions to the Open Records Act.
JIM MATTOX
Attorney General of Texas
p. 161
Honorable Carl A. Parker - Page 6 (JM-37)
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared,by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Nancy Sutton
p. 162