    OPFlCE OF THE ATTORNEY   GENERAL.   STATE OF TEXAS

    JOHN CORNYN




                                                September 6,200O



F. M. (Skip) Langley, D.V.M., M.D., J.D.                 Opinion No. JC-0280
Executive Director
Texas State Board of Medical Examiners                   Re: Whether the Board of Medical Examiners
P.O. Box 2018                                            may     release    to the Equal       Employment
Austin, Texas 78768-2018                                 Opportunity     Commission    information that is
                                                         confidential    under section     164.007 of the
                                                         Occupations Code (RQ-0225-JC)

Dear Dr. Langley:

        Under section 164.007 of the Occupations Code, negative or investigative information
possessed by the Board of Medical Examiners relating to an application for license is “privileged
and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for
release to anyone other than the board or its employees or agents.” TEX. Oct. CODE ANN.
5 164.007(c) (Vernon 2000). The federal Equal Employment Opportunity Commission (“EEOC”),
which investigates charges of discrimination related to disability by a public entity, see 42 U.S.C.
5 12133; see also 29 U.S.C. 8 794a(s)(l); 42 U.S.C. 5 2000e-5(b) (1994), is entitled to obtain
information that relates to an investigation of a charge of discrimination.  See 42 U.S.C. 5 2000e-
8(a); University of Pa. v. EEOC, 493 U.S. 182, 192 (1990). Your predecessor in office asked
whether the State Board of Medical Examiners (the “Board”) may release to the EEOC requested
documents relating to all applications the Board has denied from January 1,1983 through September
9, 1999.’ Because current federal statutes that empower the EEOC to investigate a charge of
discrimination preempt inconsistent state statutes, see EEOC v. City of Orange, 905 F. Supp. 380,
382 (E.D. Tex. 1995), we cannot construe section 164.007 of the Occupations Code to permit the
Board to withhold from the EEOC information that relates to an EEOC investigation. Assuming that
the requested information relates to a pending EEOC investigation, the Board not only may, but
must, release the information to the EEOC.

        Your predecessor indicated that the Board received two requests for information from the
EEOC. See Request Letter, note 1. “The initial request pertained to the application of a physician
who filed a complaint with the EEOC,” he stated. Id. at 1. Although fhe Board did not believe that
the EEOC was an entity to which the Board could release information under section 164.007 of the
Occupations Code, the Board “released the complaining physician’s application file based upon the



         ‘See Letter from Bruce A. Levy, M.D., J.D., to Honorable John          Comyn,   Texas   Attorney   General
(Apr. 16.2000) (on file with Opinion Committee) [hereinafter Request Letter].
F. M. (Skip) Langley, D.V.M., M.D., J.D. - Page 2                      (X-0280)




EEOC’s promise of confidentiality.”      Id. Since that time, “the EEOC has requested similar
information    for all applicants to whom licensure has been denied by the Board from
January 1, 1983[,] through            September 9, 1999.” Id.       It appears that the EEOC’s
request may arise from allegations of violations of the Americans with Disabilities Act, 42 U.S.C.
$5 12101- 12213 (1994 & Supp. 1997).* Yourpredecessorwished       to know whetherthe Boardmay
release the requested information to the EEOC. See Request Letter, supra note 1, at 2.

        Your predecessor did not suggest that the requested information does not relate to a charge
under investigation by the EEOC. We accordingly assume that the information is relevant for the
purpose of 42 U.S.C. 4 2000e-8 (1994).

         No person may practice medicine in Texas without a license from the Board. See TEX. OCC.
CODE ANN. $ 155.001 (Vernon 2000). In certain circumstances, the Board may refuse to admit an
applicant to the licensing examination or the Board may refuse to license an applicant. See id.
5 164.051; seealso id. 5 155.003 (“General Eligibility Requirements”). For example, theBoardmay
deny a license to an applicant who has submitted a false document to the Board in a license
application or has taken or passed the examination using fraudulent means; who has been convicted
of a felony or a misdemeanor involving moral turpitude; or who “is unable to practice medicine with
reasonable skill and safety to patients because of ‘mental or physical illness or chemical dependency.
See id. $5 164.051(a), .052(a). The Board apparently investigates an applicant to ensure that the
applicant is eligible to be licensed. See id. 5 155.003(a).

         Documents that the Board compiles in investigating            an applicant are confidential under state
law:

                           Each complaint, adverse report, investigation       tile, other
                  investigation report, and other investigative information in the
                  possession of or received or gathered by the board or its employees
                  or agents relating to a license holder, an application for license, or a
                  criminal investigation or proceeding is privileged and confidential
                  and is~not subject to discovery, subpoena, or other means of legal
                  compulsion     for release to anyone other than the board or its
                  employees or agents involved in discipline of a license holder.

Id. 5 164.007(c). Subsequent subsections ofsection 164.007 provide explicit exemptions, situations
in which information may be released without violating subsection (c). Under subsection (f), the
Board may disclose. investigative information in the Board’s possession “relating to discipline of a
license holder” to a licensing authority in another state or jurisdiction or to a medical peer review




         ‘SeeLetter from Sidney B. Chesnin, Senior Trial Attorney, Dallas District Office, EEOC, to Kerstin E. Arnold,
 Assistant General Counsel, Texas State Board ofMedical   Examiners   (July 23, 1999) (on file with Opinion Committee).
F. M. (Skip) Langley, D.V.M., M.D., J.D. - Page 3             (JC-0280)




committee. Id. $ 164.007(f). The Board may, under subsection (g), release to the appropriate law-
enforcement agency investigative information that tends to show that a crime has been committed.
See id. 5 164.007(g). And, under subsection (h), the Board must provide to an investigating law-
enforcement agency relevant information regarding a license holder who is under criminal
investigation. See id. § 164.007(h). Information that the Board discloses to an investigative agency
“remains confidential and may not be disclosed by the investigating agency except as necessary to
further the investigation.” Id.

         Your agency generally has presumed that the EEOC was not “considered to be among those
entities identified in section[] 164.007(d) - (h).” Request Letter, supra note 1, at 1. While we do not
consider whether the EEOC may be considered a “law enforcement agency” for the purposes of
subsections (g) or(h), we agree that the circumstances around the request suggest that the exceptions
do not apply.

          A public licensing agency may not discriminate against a qualified individual with a
disability on the basis ofthat disability in the administering of its licensing program. The Americans
with Disabilities Act, 42 U.S.C. $5 12101 - 12213 (1994 & Supp. 1997), forbids a public entity,
including a public licensing board, to discriminate against any qualified individual with a disability.
See 42 U.S.C. 5s 12132, 12133 (1994); 28 C.F.R. $ 35.130(b)(6) (1999); Clurkv. Virginia Bd. of
Bar Exam ‘rs, 880 F. Supp. 430, 442 (E.D. Va. 1995) (stating that public entity is specifically
prohibited from discriminating in administration of licensing program); Deborah Piltch, Jamie W.
Katz, & Janine Valles, The Americans with Disabilities Act and Professional Licensing, 17 MENTAL
&PHYSICAL DISABILITYL. REP. 556,557 (1993); see also 29 U.S.C. $ 794a(a) (1994); 42 USC.
3 2000e-5(b) (1994). This prohibition applies to a licensing program’s administration.          See 28
C.F.R. 5 35,130(b)(6) (1999); Clark, 880 F. Supp. at 442.

         The EEOC is authorized to investigate and enforce violations of this prohibition. See 42
U.S.C. 5 12133; see also 29 U.S.C. 5 794a; 42 U.S.C. 5 2000e-5(b) (1994). In connection with an
investigation,  the EEOC “shall at all reasonable times have access to, for the purposes of
examination, and the right to copy any evidence of any person being investigated or proceeded
against that relates to unlawful employment practices        and is relevant to the charge under
investigation.” Id. § 2000e-8(a).

        The EEOC’s right to access information that is material and relevant to an investigation
preempts, to the extent the state statute “thwarts the EEOC’s efforts to” investigate in a prompt and
timely fashion, a state statute that deems particular documents confidential.        EEOC v. Ci(v of
Orunge, 905 F. Supp. 381,382 (E.D. Tex. 1995).

                Even though Congress does not explicitly preempt a state law, the
                state law will be preempted if it would frustrate the scheme
                established by federal law. [Citations omitted.] The federal scheme
                concerning the EEOC involves the agency investigating allegations
                of discrimination.  In conducting these investigations, the EEOC is
F. M. (Skip) Langley, D.V.M., M.D., J.D. - Page 4             (JC-0280)




               entitled to have access to relevant evidence.                  The EEOC,
               moreover, is supposed to conduct its investigations        expeditiously.

EEOCv. County ofHennepin, 623 F. Supp. 29,32 (D. Minn. 1985); cf: University ofPa. v. EEOC,
493 US. 182, 194 (1990) (declining to require EEOC to demonstrate specific reason for disclosure
of requested document, “beyond a showing of relevance,” because such requirement would “‘place
a potent weapon in the hands of employers who have no interest in complying voluntarily with the
[Civil Rights] Act, who wish instead to delay as long as possible investigations by the EEOC.’
EEOC v. Shell Oil Co., 466 U.S. [54,] 81 (1984).“).

         Assuming that the information the EEOC has requested under 42 U.S.C. 5 2000e-8(a) is
material and relevant to an investigation, the EEOC has a right to obtain the information, which right
cannot be compromised by a state statute, such as section 164.007 of the Occupations Code. See
University of Pa., 493 U.S. at 192 (stating that EEOC has “right to obtain” information related to
investigation, “not a mere license to seek it”). In EEOC v. City of Orange, the federal district court
for the Eastern District of Texas specifically concluded that a Texas statute that thwarts an EEOC
investigation is preempted to the extent it does so:

                        “Where a state statute conflicts with or frustrates federal law,
               the former must give way.” CSX Tramp., Inc. v. Basterwood, 507
               U.S. 658, [663] (1993). Congress has designed an elaborate statutory
               scheme to combat discriminatory employment practices.             As the
               federal agency with primary responsibility in this area, EEOC is
               empowered by statute to investigate charges of discrimination in
               employment.      42 U.S.C. 5 2000e-5.        Congress charged EEOC
               with conducting its investigations in a prompt and timely fashion. Id.
                5 2000e-8(a).    EEOC’s investigative efforts into the employment
               practices of entities subject to the provisions            of the Texas
                Government Code would be delayed significantly if a court order
               were required to enforce every administrative subpoena served upon
                these entities. Accordingly, the Texas statute is preempted to the
                extent that it thwarts the EEOC’s efforts to carry out the manifest
                intent of Congress.

City of Orange, 905 F. Supp. at 382. To the extent that section 164.007 of the Occupations Code
requires the Board to withhold documents material and relevant to an EEOC investigation and
requested in relation to the investigation, it thwarts Congress’ intent and is preempted by federal law.
See also id.

        Consequently, we conclude not only that the Board may release the requested information
to the EEOC, but that the Board must do so. Information released to the EEOC does not lose its
confidential character. See 42 U.S.C. 5 2000e-8(e) (1994); EEOC v. Associated Dry Goods Corp.,
449 U.S. 590,599 (1980); County ofHennepin, 623 F. Supp. at 33.
F. M. (Skip) Langley, D.V.M., M.D., J.D. - Page 5            (JC-0280)




         Analogously, this office has construed chapter 552 ofthe Government Code to permit a state
agency that is holding confidential information to transfer the information to a federal agency if the
law requires that the information be disclosed to the federal agency. See Tex. Att’y Gen. ORD-650
(1996) at 3-4. Because federal law provides the EEOC with a right to obtain information that relates
to an investigation of alleged discriminatory practices, chapter 552 does not prohibit the Board from
releasing the information to the EEOC.
F. M. (Skip) Langley, D.V.M., M.D., J.D. - Page 6         (~~-0280)




                                      SUMMARY

                      In accordance with a request from the Equal Employment
              Opportunity Commission (“EEOC”), the Board of Medical Examin-
              ers must transfer to the EEOC information that relates to a charge the
              EEOC is investigating under the Americans with Disabilities Act, 42
              U.S.C. $5 12101- 12213 (1994& Supp. 1997). Totheextentscction
              164.007 of the Occupations Code deems the information strictly
              confidential, section 164.007 is preempted by federal law. Compare
              TEX. Oct. CODE ANN. 5 164.007(c) (Vernon 2000) with 42 U.S.C.
              5 2000e-8(a) (1994).

                                             You    ve   truly,



                                           4JQkT
                                             JOkN     CORNYN
                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

 SUSAN D. GUSKY
 Chair, Opinion Committee

 Kymberly K. Oltrogge
 Assistant Attorney General - Opinion Committee
