The Attorney General of Texas
April 24, 1981
Honorable Chet Brooks, Chairman Opinion No. RW-327
Senate Committee on Human Resources
Room 412 - Archives Building Re: May state agency expunge
Austin, Texas 78711 employment records relating to
termination
Dear Senator Brooks:
A former employee of the Texas Parks and Wildlife Department, who
was terminated, has expressed a desire to”have all references to his
termination expunged from his employment -records, and further, to have
said records altered to indicate that he voluntarily resigned. You have
requested our opinion as to whether the department is permitted to make
such a change. You further inquire as to whether such an alteration would
expose the department and the revenues of the State of Texas to liability
and future lawsuits, and whether the department-must make such a change
at the employee’s request. -. _~
In our opinion, such an alteration is clearly prohibited by article 6252-
178, V.T.C.S., the Open Records Act. Section 3 thereof provides that:
(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. . . . !
Section 5 states that:
(a)The chief administrative officer of the govern-
mental body shall be the custodian of public records,
and. . . shall be responsible for the preservation and
care of the public records; . . : It shall be the dut of
the custodian. . . subkct to penalties provided dhis
5 to see that the public records. . . are carefully
protected and preserved from deterioration, altera-
tion.
- . . . (Emphasis added).
Section 12 provides that:
Any person who wilfully destroys . . or alters public
records shall be guilty of a misdemeanor and upon
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Honorable Chet Brooks - Page Two (MU-3271
conviction shall be fined not less than $25 nor more than $4,000,
or confined ln the county jail not less than three days nor more
than three months, or both such fine and confinement.
(Emphasis added).
The term “public records” is defined in section 2(2) ss:
the portion of all documents, writings, letters, memoranda, or
other written, printed, typed, eopied, or developed materials
which contains public Information.
You state that the fact that this employee was terminated is indicated in the
employment records ln question. It cannot be seriously contended that these ( cords,
including their reference to said termination, are not public information within the
Open Records Act. As we have shown, the act clearly imposes a duty upon the
custodian of public records to preserve said records and to ensure that, among other
things, they are not altered. Anyone who wilfully alters public records is subject to
the penalties set forth ln section 12. -
We therefore conclude that the Texas Parks and Wildlife Department may not
expunge references to an employee’s termination from its employment records and
alter those records to indicate that the employee in question separated from the
department In some other manner, i&., through.volunfa~ resignation. We do not
believe, however, that the Open Records -4ct prohibits the-department from adding
material to an employee’s records which explains or refutes information contained
therein. We further believe that our discussion of this question also resolves your
remaining questions.
SUMMARY
Article 6252~Wa, V.T.C.S., the Open Records Act, prohibits
the Texas Parks and Wildllfe Department from expunging
references to an employee’s termination from its employment
records.
&a Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Honorable Chet Brooks - Page Three (MW- 327)
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMl’TTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Giipin
BNW Youngblood
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