                              ATTORNEY GENERAL OF TEXAS
                                           GREG       ABBOTT




                                               March 13,2003



Ms. Karen Lundquist                                  Opinion No. GA-0036
Executive Director
Texas Ethics Commission                              Re: Whether the Texas Ethics Commission, in
P. 0. Box 12070, Capitol Station                     providing to the respondent in a commission-
Austin, Texas 7871 l-2070                            initiated complaint information that was obtained in
                                                     connection with another sworn complaint, violates
                                                     the confidentiality provision of section 571.140 of
                                                     the Government Code (RQ-0601 -JC)

Dear Ms. Lundquist:

         Your predecessor    asked this office whether the Texas Ethics Commission            (“the
Commission”)    would violate section 571.140 of the Government Code if, pursuant to section
571.124(e) of the Government Code and sections 12.53 and 12.67 of the Commission’s rules, it
provided to the respondent in an investigation initiated by the Commission documents related to an
investigation of the same underlying state of affairs that had been initiated by a sworn complaint
against another respondent.’

         The Commission      is charged by the Government Code with the administration            and
enforcement of chapters 302, 303, 305, 572, and 2004 of the Government Code, subchapter C of
chapter 159 of the Local Government Code, and title 15 of the Election Code. See TEX. GOV’T CODE
ANN. 9 571.061(a) (V emon Supp. 2003). It evaluates the sufficiency of sworn complaints and
initiates preliminary reviews based on them. See generally id. 8 4 57 1.12 l-57 1.140 (Vernon 1994)
(chapter 571, subchapter E). It may also initiate a preliminary review of an alleged violation on a
Commission motion supported by an affirmative record vote. See id. 5 571.124(b). In the context
of an investigation, the Commission is obliged to provide notice of the allegation to the respondent,
including a copy of the complaint. See id. 8 571.124(d)-(e)( 1). Commission Rule 12.67 requires
that, with some exceptions, “[wlhen this title requires a copy of the sworn complaint to be provided
to the complainant or respondent, the copy shall include all documents submitted with the complaint
. . . .” 1 TEX. ADMIN. CODE 8 12.67 (2002). Before the Commission holds a formal hearing on a
complaint, it must provide “to the complainant, if any, and to the respondent . . . copies of all
documents expected to be introduced as exhibits at the hearing.” TEX. GOV’T CODE ANN. 8
57 1.13 1(a)(2) (Vernon 1994).




         ‘See Letter from Tom Harrison, Executive Director, Texas Ethics Commission, to Honorable John Cornyn,
Texas Attorney General (Aug. 29,2002) (on file with Opinion Committee) [hereinafter Request Letter].
Ms. Karen Lundquist         - Page 2                    (GA-0036)




         You indicate that, on occasion, a violation alleged in a sworn complaint against one party
may also implicate a second, with respect to whom the Commission may wish to initiate a review
on its own motion.* Accordingly, the Commission must provide notice to the second respondent.
Although this is not expressly provided in chapter 571, the Connnission assumes that a respondent
who is the subject of a motion under subsection 57 1.124(b) is entitled to notice including the records
relating to that motion under subsections 571.124(d) and (e)( 1) and Rule 12.67. If the Commission
includes in that notice the documents related to the underlying matter filed in connection with the
sworn complaint against the first respondent, you fear that the Commission may violate the
provisions of section 571.140 of the Government Code.

         The actual language of section 571.124 does not, standing alone, require that the documents
be given to a respondent in a Commission-initiated   action. Subsection (e) of section 57 1.124 refers
to the necessity of furnishing notice, including a “copy of the complaint,” and subsections (c) and
(d) refer to the Commission’s jurisdiction over violations “alleged in a sworn complaint” or “in the
complaint.” However, section 12.53(b) of the Commission rules provides that a preliminary review
initiated by the Commission “shall be deemed to be a sworn complaint for all purposes of this
chapter.” 1 TEX. ADMIN. CODE 5 12.53(b) (2002). Accordingly, the Cornmission is required to
provide the documents in question pursuant to its rules, which here fill a statutory gap and are a
reasonable administrative construction of its duties. See Osterberg v. Peca, 12 S.W.3d 3 1,5 1 (Tex.
2000) (stating that an agency’s construction of a statute is entitled to “great weight”).

         Section 571.140 of the Government             Code reads, in relevant part:

                  0a . . . [Plroceedings  at a preliminary review or informal hearing
                  performed by the Commission, a sworn complaint, and documents
                  and any additional evidence relating to the processing, preliminary
                  review, informal hearing, or resolution of a sworn complaint or
                  motion are confidential and may not be disclosed unless entered into
                  the record of a formal hearing or a judicial proceeding, except that a
                  document or statement that was previously public information
                  remains public information.




                  (c) A person commits an offense if the person discloses information
                  made confidential by this section. An offense under this subsection
                  is a Class A misdemeanor.

TEX. GOV’T CODE ANN. 8 571.140 (Vernon 1994). Accordingly,             it appears that, on the one hand you
believe that the Commission          is bound by section 571.124(e) and Commission rules to provide this




         *Telephone   Conversation   with Karen Lundquist,   Executive   Director, Texas Ethics Commission   (December
2002).
Ms. Karen Lundquist      - Page 3                 (GA-0036)




information to the second respondent, while on the other hand you believe that the Commission              is
prohibited on pain of criminal liability from so doing.

         We are instructed by the Code Construction Act to avoid such consequences as this in the
interpretation of a statute, if it is possible to do so. See id. 5 3 11.02 l(2) (Vernon 1998) (entire statute
intended to be effective); (3) (just and reasonable result intended); (4) (result feasible of execution
intended).    In this instance, moreover, we are bound to give a limited construction to the word
“disclose” in section 57 1.140 because the statute is penal in nature. “A court should strictly construe
a statute imposing a penalty. Such a statute should be construed against those seeking to impose the
penalty and in favor of those on whom such penalties would be imposed.” Howell v. Mauzy, 899
S.W.2d 690,704-05 (Tex. App.-Austin 1994, writ denied) (citations omitted). In our view, such a
limited construction of the term “disclose” in section 571.140 both mlfills that obligation and
obviates the difficulty that is suggested.

          Chapter 571 of the Government Code does not define the word “disclose.” Therefore it is
to be given its common or ordinary meaning. See TEX. GOV’T CODEANN. 8 3 11 .Ol 1 (Vernon 1998).
To “disclose” is defined by the Oxford English Dictionary as “to open up to the knowledge of others;
to make openly known, reveal, declare.” lV OXFORDENGLISHDICTIONARY 738 (2d ed. 1989).
Disclosing in this sense, therefore, is a making public of the confidential. In the context of the Texas
Public Information Act, this office has long recognized that giving information to certain individuals
or entities is not necessarily public disclosure. See, e.g., Tex. Att’y Gen. ORD-565 (1990), ORD-
501 (1988), ORD-481 (1987) ORD-468 (1987).

         In the instance which concerns you, the documents are not made generally known. They are
conveyed to the second respondent so that he may be allowed a reasonable opportunity to exercise
his statutory rights with regard to any informal or formal hearing. See TEX. GOV’T CODE ANN. $9
571.127(b) (Vernon 1994) (respondent may appear with counsel at informal hearing to provide
evidence, including written statement); 57 1.13 1(a) (respondent has right to “copies of all documents
expected to be introduced” at formal hearing). In interpreting the word “disclosure” for the purpose
of its public information statute, the Nebraska Supreme Court held that “disclosure” referred “to the
exposure of documents to public view and not simply to the transmission of a document to the
subject of an agency’s investigation.” State ex rel. Neb. Health Care Ass ‘n v. Dep ‘t of Health &
Human Sews., 587 N. W.2d 100, 102, 107 (Neb. 1998). It is precisely such transmission which is
at issue here.

         A broader interpretation of “disclose” which included the provision of the confidential
matter under section 57 1.140 to a respondent would lead in a variety of ways to absurd and self-
contradictory results. For example, as noted, the complaint itself is confidential under section
57 1.140, but upon the initiation of a preliminary review it must be provided to the respondent under
section 5 7 1.124. Similarly, the same documents which are confidential under section 5 7 1.140 must,
under section 571.13 1, be provided to the respondent in the event of a formal hearing. These
contradictions would occur whether one were dealing with a second respondent, as here, or with the
respondent to the original complaint, particularly in light of section 12.53(b) of the Commission
rules, which collapses any distinction between Commission-initiated          investigations  and those
Ms. Karen Lundquist         - Page 4               (GA-0036)




initiated by formal complaint. To determine that the provision of documents to a respondent was
a prohibited disclosure would, accordingly, render the enforcement process of subchapter E generally
unworkable.    Such an interpretation is neither required by the statutory language nor permitted by
the legal presumption that statutes are meant to be enforceable, meaningful, and internally coherent.
See TEX. GOV’T CODE ANN. 8 3 11.021 (Vernon 1998). Rather, those provisions in chapter 571 and
the Commission rules which require the release of information to respondents to Commission
reviews are specific exceptions to the general rule of section 57 1.140.

         We therefore conclude that the provision of documents related to the underlying matter that
is the subject of an investigation initiated by motion of the commissioners to the respondent is not
the disclosure of confidential information prohibited by section 57 1.140 of the Government Code.

        We     caution     that such disclosure must not, under section 571.140, allow the second
respondent    to know     of the existence of the complaint against the first. Therefore, while the second
respondent    must be    provided the documents supporting a claim against him, such documents should
be redacted    insofar   as they reveal that another person is also being investigated in the matter.
Ms. Karen Lundquist   - Page 5              (GA-0036)




                                      SUMMARY

                       Under certain circumstances, the Texas Ethics Commission
               may be obliged under chapter 571 of the Government Code and
               Commission    rules to provide documents relating to a sworn
               complaint against one respondent to another respondent. Doing so in
               those circumstances    does not violate section 571.140 of the
               Government Code, so long as the documents are properly redacted.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General - General Counsel

NANCY S. FULLER
Chair, Opinion Committee

James E. Tourtelott
Assistant Attorney General, Opinion Committee
