                                         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




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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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