The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Lauro F. Cavazos, Ph.D. Opinion No. ~~-565
Supreme Court Building
President
P. 0. BOX 12546
Austin, TX. 76711.2546
Texas Tech University Re: Availability of Texas Tech
5121475-2501 Texas Tech University Health University student and personnel
Telex 9101674-1367 Science Center files to the Department of Labor
Telecopier 512/475-0266 P. 0. Box 4349
Lubbock, Texas 79409
1607 Main St., Suite 1400
Dallas, TX. 752014709 Dear Dr. Csvazos:
214/742-6944
You have requested an opinion from this office. The facts, as
set forth in your request letter, are as follows:
4624 Alberta Ave., Suite 160
El Paso. TX. 79905-2793
9151533.3484 The Department of Labor is demanding that our
files be made available to their office in their
investigation of the treatment of minorities and
1220 Dallas Ave., Suite 202
females at Texas Tech University. No claims of
Houston, TX. 77002.6966
7131650-0666 discrimination have been made, however. Texas
Tech University has been investigated several
times by the Department of Education pursuant to
606 Broadway, Suite 312 Titles VI, VII, and IX. The Department of
Lubbock. TX. 79401-3479
Education found no evidence of discrimination.
8061747-5236
Officials and employees at Texas Tech have already
spent numerous hours of their time providing
4309 N. Tenth, Suite B documents, preparing reports, and meeting with
McAllen, TX. 76501-1665 officials from the Department of Education. I
5121682-4547
view the demand from the Department of Labor for
the same records for the same purposes as a
200 Main Plaza, Suite 400 considerable duplication of effort both on the
San Antonio. TX. 76205.2797 part of our employees and also as to the federal
5121225-4191 employees. I have a further objection to the
Department of Labor's request for our files in
An Equal Opportunity1 that student and personnel records are
Affirmative Action Employer confidential; however, because of the Freedom of
Information Act, these records can be released to
the public should the Department of Labor gain
access to them.
You ask:
Must Texas Tech University comply with the
request of the Department of Labor that it, the
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Dr. Lauro F. Cavazos - Page 2 (Mw-565)
Department of Labor, have complete access to
personnel and student records at Texas Tech
University?
You object to releasing confidential student and personnel
records to the Department of Labor because they would then be subject
to public disclosure under the federal Freedom of Information Act.
Former President Lyndon Johnson issued Executive Order No. 11246
in 1965. This order provides, inter alla, that:
Section 101. It is the policy of the
Government of the United States to provide equal
opportunity in Federal employment for all
qualified persons, to prohibit discrimination in
employment because of race, creed, color, or
national origin, and to promote the full
realization of equal employment opportunity
through a positive, continuing program in each
executive department and agency. The policy of
equal opportunity applies to every aspect of
Federal employment policy and practice.
....
section 202. Except in contracts exempted in
accordance with Section 204 of this Order, all
Government contracting agencies shall include in
every Government contract hereafter entered into
the following provisions:
'During the performance of this contract,
the contractor agrees as follows:
. . ..
(4) The contractor will comply with all
provisions of Executive Order No. 11246 of
September 24, 1965, and of the rules,
regulations, and relevant orders of the
Secretary of Labor.
(5) The contractor will furnish all
information and reports required by Executive
Order No. 11246 of September 24, 1965, and by
the rules, regulations, and orders of the
Secretary of Labor, or pursuant thereto, and
will permit access to his books, records, and
accounts by the contracting agency and the
Secretary of Labor for purposes of
p. 2079
Dr. Laura F. Cavazos - Page 3 W-565)
investigation to ascertain compliance with such
rules, regulations, and orders.
. . ..
Section 205. All contracting agencies shall
comply with the rules of the Secretary of Labor in
discharging their primary responsibility for
securing compliance with the provisions of
contracts and otherwise with the terms of this
Order and of the rules, regulations, and orders of
the Secretary of Labor issued pursuant to this
Order. They are directed to cooperate with the
Secretary of Labor and to furnish the Secretary of
Labor such information and assistance as he may
require in the performance of his functions under
this Order....
Section 201 of Executive Order No. 11246 provides that the
Secretary of Labor “shall adopt such rules and regulations... as he
deems necessary and appropriate to achieve the purposes” of the order.
These regulations may be found at 41 C.F.R. section 60-1.4. They
require those who receive “government contracts” and “federally
assisted construction contracts,” as those terms are defined therein,
to include in each contract and in each modification thereof if not
included in the original contract, the same equal employment
opportunity clause that is set out in Executive Order No. 11246. As
one can see from the foregoing quotation, this clause provides, inter
alla, that the contractor must agree to comply with the order and
“permit access to his books, records, and accounts... for purposes of
investigation to ascertain compliance with” the rules, regulations,
and orders of the Secretary of Labor. The Executive Order itself
requires contractors to cooperate with the Secretary of Labor and to
furnish him “such information and assistance as he may require in the
performance of his functions under this Order.” Section 205.
At least two federal courts have held that Executive Order No.
11246 and the regulations promulgated thereunder were issued pursuant
to constitutional and statutory authority and therefore have the full
force and effect of law. Contractors Association of Eastern
Pennsylvania v. Secretary of Labor, 442 F.2d 159, 171 (3rd Cir. 1971).
cert. denied, 404 U.S. 854 (1971); Legal Aid Society of Alameda County
v. Brennan, 381 F.Supp. 125, 130 (N.D. Cal. 1974). See also Hollander
v. Sears, Roebuck and Company. 450 F.Supp. 496, 500 (D. Conn. 1978).
You inform us that Texas Tech University receives federal contracts in
the area of research and instruction. Since these contracts are
subject to Executive Order No. 11246 and the regulations promulgated
thereunder, they presumably include the aforementioned equal
employment opportunity clause. If they do, then it necessarily
follows that the university must comply with the requirements of that
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Dr. Laura F. Cavazos - Page 4 (MW-565)
clause, including the requirement that it permit the Secretary of
Labor to have access to its books, records, and accounts.
At this juncture, we emphasize that even if Executive Order No.
11246 and the accompanying administrative regulations did not exist,
the university would still be required to make most of its records
available for inspection. The Open Records Act, article 6252-17a,
V.T.C.S., provides that all information collected, assembled, or
maintained by a governmental body pursuant to law or ordinance or in
connection with the transaction of official business is public
information unless it falls within one of the exceptions set forth in
section 3(a) thereof. Thus, unless the university could successfully
invoke one or more of these exceptions, it would be required to make
its records available for inspection.
Although, under Executive Order No. 11246 and the Open Records
Act, the university is generally obligated to make information in its
possession available to the Secretary of Labor, a question exists as
to whether this obligation extends to information which is made
confidential by statutory law. You contend that personnel and student
records are "confidential," and you question whether the university
may legally be required to provide such records to the Secretary of
Labor.
In Marks v. Central Intelligence Agency, 590 F.2d 997 (D.C. Cir.
1978). the court of appeals observed that an executive order cannot
supersede a statute. 530 F.2d at 1003. See also American Federation
of Government Employees, AFL-CIO V. Freeman, 498 F.Supp. 651, 658
(D.C. 1980). One federal statute which would almost assuredly be
applicable in this instance is the Buckley Amendment, 20 U.S.C.
section 1232g, which makes certain student records confidential. If
any information in the student records to which you refer is made
confidential by the Buckley Amendment, we conclude that it may be
released only in accordance with the provisions of that amendment.
Since we have no specific records before us, we cannot determine the
extent to which this act may be applicable in your situation.
Unlike student records, however, personnel records are not, to
our knowledge, made inherently confidential by any federal statute.
The Texas Open Records Act contains various exceptions which may be
relied upon in individual instances to shield information in personnel
records from the public view. See e.g., §§3(a)(l), 3(a)(2). In
general, however, personnel records are open and available to the
public. Because we have no specific personnel records before us, we
cannot determine whether any Open Records Act exception might be
applicable to any such records in your possession. Because we cannot
make this determination, we also cannot determine whether, even if you
could withhold such records under the Open Records Act, you must
nevertheless release them to the Secretary of Labor under Executive
Order No. 11246. While it is clear that this order cannot supercede a
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Dr. Laura F. Cavazos - Page 5 (MW-565)
federal statute, the extent to which it would prevail in the event of
a conflict with an Open Records Act exception authorizing material to
be kept secret is an entirely different question. Whether it would
prevail would depend, in our opinion, upon the specific factual
setting and upon the nature of the specific underlying basis for
invoking such exception.
SUMMARY
Texas Tech University must comply with the
equal opportunity clause set out in its federal
contracts pursuant to Executive Order No. 11246
and the regulations promulgated thereunder. This
clause requires, inter alla, that the university
make available to the Secretary of Labor its
books, records, and accounts. Those portions of
said books, records, and accounts which consist of
student records which are confidential under the
Buckley Amendment, 20 U.S.C. §1232g, may only be
released pursuant to the provisions of that
amendment. We cannot determine in the abstract
whether any of the university's personnel records
may be withheld from the Secretary of Labor,
either temporarily or permanently.
WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
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