                           QBfficeof tfie !Zlttornep@enerst
                                          &date of QCexae


                                      September 12,199l




Honorable Burton F. Raiford                       Opinion No. DM- 40
Interim Commissioner
Texas Department of Human Services                Re: Whether federal law authorizes a
P.O. Box 149030                                   federal agency to require the Depart-
Austin, Texas 78714-9030                          ment of Human Services to delete certain
                                                  information   from    personnel     files
                                                  (RQ-2152)


Dear Commissioner Raiford:


       Your predecessor in office sought the opinion of this office as to whether
federal law requires the deletion of certain information from personnel files.
Specifically, your predecessor asked whether the authority given the federal Equal
Employment Opportunity Commission (EEOC) in title 42. section’2OOOe-5of the
United States Code and further explained in the policies and conciliation standards
of the EEOC is paramount federal law that requires the Department of Human
Services to delete information from personnel files in settlement agreements with
the EEOC.


       The EEOC has authority to investigate and attempt to resolve discrimination
claims under title VII of the Civil Rights Act of 1964, by informal methods of
conciliation. 42 U.S.C. 99 2OOOe-4(g),2OOOe-5.In the EEOC Compliance Manual,
containing the policy statement on remedies and relief for individual cases of
unlawful discrimination, approved February 5, 1985, the EEOC enumerates
elements which all conciliation agreements should contain in appropriate
circumstances.t Among these elements of relief the EEOC includes:


            (2) A requirement that corrective, curative or preventive action
            be taken, or measures adopted, to ensure that similar found or
            conciliated violations of the law will not recur.


       1 These are not federal regulations adopted pursuant to statute, but statements of policy




                                          p.    196
Honorable Burton F. Raiford - Page 2           (DM-40)




EEOC Compl. Man. (CCH) at 1. As a component of this element the EEOC policy
statement further provides:


           In addition, the respondent must be required to take all other
           appropriate steps to eradicate the discrimination and its
           effects, such as the expunging of adverse materials relating to
           the unlawful employment practice from the discriminatee’s
           personnel files.


Id at 2. The term “deletion” in the context of your question implies that the record
is to be destroyed or otherwise permanently removed from the governmental body’s
custody. Section 12 of the Texas Gpen Records Act, V.T.C.S. article 6252-17a,
provides, in part:


               Any person who willtirlly ~destroys, mutilates, removes
           without permission as provided herein, or alters public records
           shallbe guilty of a misdemeanor . . . .


Section 5(a) of the Gpen Records Act provides, in pertinent part:


               Itshall be the duty of the officer for public records, subject
           to penalties provided in this Act, to see that the public records
           are made available for public inspection and copying; that the
           records are carefully protected from deterioration, alteration,
           mutilation, loss, or unlawful removal; and that public records
           are repaired, renovated, or rebound when necessary to
           maintain them properly. When records are no longer currently
           in use, it shall be within the discretion of the governmental
           body . . . to determine a period of time for which said
           records will be preserved subject to state laws governing the
           destruction and other disposition of state and local government
           records.


Section 441.035 of the Government Code provides, in part:


                                    p.   197
Honorable Burton F. Raiford - Page 3              (DM-40)




               (e) With the approval of the director and librarian [of the
          State Library and Archives Commission], in accordance with
          this section, the head of any department or institution may
          destroy any state record in the custody of the head of the
          department or institution that, in the opinion of the head of
          the department or institution, does not have any further legal,
          administrative, or historical value. Before destroying the state
          record, the head of the department or institution must file an
          application to do so with the director and librarian that
          describes the original purpose and the contents of the state
          record.


In Attorney General Opinion JM-830 (1987), this office considered, among other
things, whether a state agency could seal personnel records subject to the EEOC’s
authority to resolve complaints through conciliation. That opinion concluded that


          [nleither this provision [section 2OOOe-51nor 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 vm
          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 administrative sanctions.
          m                         -   v         415 U.S. 1361 at 44.
          Responsibility for the enforcement of the act is vested in the
          federal courts. Id. See        &xs. Roebuck & Co. v. m
                                             . .
                         oppo&&y      COmml~        435 F.Supp. 751, 761
          (D.D.C. 1977) (commission lacks authority to issue binding
          substantive rules).
           . . . .



              We have no doubt that expunction is an appropriate
          iuQirial remedy to afford relief under both the federal act and
          the state act. . . . As indicated, the federal commission lacks
          authority to adjudicate claims or impose administrative
          sanctions.



                                       p.   196
Honorable Burton F. Raiford - Page 4                    (DM-40)




Attorney General Opinion JM-830 at 7 (emphasis in original).


        While the above-quoted passage from Attorney General Opinion JM-830
discusses sealing information in personnel records rather than deleting it, it correctly
analyxes the narrow issue presented in your predecessor’s opinion request. As
federal law does not authorize the EEOC to require that records be sealed,2 neither
does it authorize the EEOC to require the deletion of information from persomrel
files in contravention of state law. However, as Attorney General Opinion JM-830
discusses sealing records rather than deleting them, it does not discuss section 5 of
the Gpen Records Act and section 441.035(e) of the Government Code. These
provisions, which provide for the destruction of certain state records upon
application to the director and librarian of the State Library and Archives
Commission, may provide a mechanism for deletion of certain records in
compliance with state law while permitting the inclusion of record expungement as a
remedy in voluntary EEOC settlements. Under these provisions a state agency in
consultation with the director and librarian could establish a retention policy for
those portions of a personnel 6le subject to an EEGCdispute that provides for the
destruction of such records upon settlement of the dispute. Accordingly, we would
encourage your staff to contact the Texas State Library and Archives Commission.


                                         SUMMARY

                  As federal law does not author& the EEOC to require
             that records be sealed, neither does it authorize the EEOC to
             require the deletion of information from personnel files in
             contravention of state law.


                  Section 5 of the Gpen Records Act and section 441.035(e)
             of the Government Code which provide for the destruction of

         * The Texas Open Records Act, art. 6252-17a, V.T.C.S., provides for public access to records
of govenlmcntal bodiq imhling state agencies. Section 3 of the Open Records AU provides that
information is to be available for public inspection unless spccif~cally excepted in subs&on (a) of that
sectioa. some of the exceptions eluunerated in section 3(a) may coincidentauy except solue
information which the EEOC may wish expunged in a settlement agreement. However, unless one of
the exceptions in section 3(a) applies, information may not be withheld from public disclosure unlcs a
court so orders.



                                             p.   199
Honorable Burton F. Raiford - Page 5        (DM-40)




           certain state records upon application to the director and
           librarian of the State Archives and Library Commission, may
           provide a mechanism for deletion of certain records in
           compliance with state law while permitting the inclusion of
           record expungement as a remedy in voluntary EEOC
           settlements.




                                                DAN      MORALES
                                                Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by John Steiner
Assistant Attorney General




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