                   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


                               p. 3971
                                                                   .

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




                       p. 3973
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


                             p. 3975
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



                             p. 3977
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


                       p. 3978
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
