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                                         The Attorney            General of Texas
                                                               June 3, 1983
JIM MATTOX
Attorney General


                                        Honorable Carl A. Parker               Opinion No. JM-37
Supreme      Court Building
P. 0. BOX 12546                         Chairman
Ausfin. TX~ 76711. 2546                 Senate Education Committee             Re:    Whether oral history
5121475-2501                            Texas State Senate                     interviews acquired by     an
Telex   9101674-1367                    P. 0. Box 12068                        institution of higher educa-
Telecopier     5121475-0266
                                        Austin, Texas   78711                  tion are public information
                                                                               under the Open Records Act
1607 Main St.. Suite 1400
Dallas. TX. 75201.4709                  Dear Senator Parker:
2141742-6944

                                             You ask the following questions concerning public access to oral
4624 Alberta       Ave.. Suite    160   history interviews under article 6252-17a, V.T.C.S., the Texas Open
El Paso. TX.       79905.2793           Records Act:
9151533-3464

                                                    (1) whether recorded or transcribed oral
     0 Dallas Ave.. Suite        202
                                                 history interviews acquired by an institution of
nouston.     TX. 77002-6966                      higher education for historical purposes are
713,650.0666                                     public information under the Texas Open Records
                                                 Act;
806 Broadway.        Suite 312
                                                    (2)  whether recorded or transcribed oral
Lubbock,     TX.    79401.3479
6061747-5236
                                                 history interviews acquired by       an employee
                                                 (historian, researcher, teacher) of an institution
                                                 of higher education for historical purposes are
4309 N. Tenth. Suite B                           public information under this act;
McAllen.    TX. 76501-1685
5121662~4547
                                                    (3) under what circumstances could recorded or
                                                 transcribed oral history interviews acquired by an
200 Main Plaza. Suite 400                        institution of higher education for historical
San Antonio,  TX. 76205.2797                     purposes be exempted from the act.
5121225-4191

                                        Your questions are prompted by Senate Bill No. 161 which, if enacted,
An Equal      Opportunityl              would add to the Education Code a section 51.910 to read as follows:
Affirmative     Action     Employer
                                                    Sec.    51.910. INTERVIEWS     FOR   HISTORICAL
                                                 PURPOSES. An oral interview that is obtained for
                                                 historical    purposes    by   an   agreement   of
                                                 confidentiality between an interviewee and a state
                                                 institution of higher education is not public
                                                 information.     The   interview becomes    public



                                                                      p. 157
Honorable Carl A. Parker - Page 2   (JM-37)




          information when the,,conditions of the agreement
          of confidentiality have been met.

Institutions of higher education are subject to the Texas Open Records
Act, and records in their custody are available to the public unless
excepted by a provision of the act or by some other law. See, e.g.,
Attorney General Opinion H-436 (1974); Open Records Decision Nos. 101
(1975); 16 (1974).

     The Open Records Act prevents institutions of higher education
from making agreements to keep information confidential, unless they
are authorized by law to enter into such agreements. Attorney General
Opinion H-258 (1974); Open Records Decision No. 55A (1975). Thus, a
university's promise to maintain oral history interviews as
confidential will be unenforceable unless it is based on statutory
authority. The Open Records Act is applicable to information on tape
as well as transcriptions thereof. Open Records Decision No. 32
(1974).

     In answering your question, we do not have any specific record
before us, nor have particular confidentiality provisions been raised.
The confidentiality provisions of the Open Records Act are found in
section 3 as follows:

             (a) All information collected, assembled, or
          maintained by governmental bodies pursuant to law
          or ordinance or in connection with the transaction
          of official business is public information and
          available to the public during normal business
          hours of any governmental body, with the following
          exceptions only:

             (1). information deemed confidential by law,
          either Constitutional, statutory, or by judicial
          decision;

             (2) information in personnel files, the
          disclosure of which would constitute a clearly
          unwarranted   invasion   of    personal   privacy;
          provided, however, that all information in
          personnel files of an individual employee within a
          governmental body is to be made available to that
          individual    employee    or     his    designated
          representative as is public information under this
          Act;

             (3) information relating to litigation of a
          criminal   or   CiVil  nature  and   settlement
          negotiations, to which the state or political




                              p. 158
Honorable Carl A. Parker - Page 3   (JM-37)




          subdivision is, or may be, a party, or to which an
          officer or employee of the state or political
          subdivision, as a consequence of his office or
          employment, is or may be a party, that the
          sttorney general or the respective attorneys of
          the various political subdivisions has determined
          should be withheld from public inspection;

             (4) information which. if released, would give
          advantage to competitors or bidders;

             (5) information pertaining to the location of
          real or personal property for public purposes
          prior to public announcement of the project, and
          information pertaining to appraisals or purchase
          price of real or personal property for public
          purposes prior to the formal award of contracts
          therefor;

             (6) drafts and working papers involved in the
          preparation of proposed legislation;

             (7) matters in which the duty of the Attorney
          General of Texas or sn attorney of a political
          subdivision, to his client, pursuant to the Rul.es
          and Canons of Ethics of the State Bar of Texas are
          prohibited from disclosure, or which by order of a
          court are prohibited from disclosure;

             (8) records of law enforcement agencies that
          deal with the detection and investigation of crime
          and the internal records and notations of such law
          enforcement agencies which are maintained for
          internal use     in matters    relating to     law
          enforcement;

             (9) private correspondence and communications
          of an elected office holder relating to matters
          the disclosure of which would constitute an
          invasion of privacy;

             (10) trade secrets and commercial or financial
          information obtained from a person and privileged
          or confidential by statute or judicial decision;

             (11) inter-agency or intra-agency memorandums
          or letters which would not be available by law to
          a party other than one in litigation with the
          agency;




                              p. 159
Honorable Carl A. Parker - Page 4   (JM-37)




            (12) information contained in or related to
         examination, operating, or condition reports
         prepared by, on behalf of, or for the use of an
         agency   responsible  for   the   regulation  or
         supervision of financial institutions, and/or
         securities, as that term is defined in the Texas
         Securities Act;

            (13) geological and geophysical information
         and data including maps concerning wells, except
         information   filed   in    connection   with an
         application or proceeding before any agency;

            (14) student      records    at     educational
         institutions funded wholly, or in part, by state
         revenue; but such records shall be made available
         upon request of educational institution personnel,
         the student involved, or that student's parent,
         legal guardian, or spouse;

            (15) birth and death records maintained by the
         Bureau of Vital Statistics in the State of Texas;

            (16) the audit working papers of      the State
         Auditor;

            (17) the home addresses and home telephone
         numbers of peace officers as defined by Article
         2.12, Code of Criminal Procedure, 1965, as
         amended, or by Section 51.212, Texas Education
         Code; [and]

            (18) information contained on or derived from
         triplicate prescription forms filed with the
         Department of Public Safety pursuant to Section
         3.09 of the Texas Controlled Substances Act, as
         amended (Article 4476-15, Vernon's Texas Civil
         Statutes).

Some of these exceptions are quite narrow, applying only to a specific
type of record or records held by a specific custodian. These include
sections 3(a)(6), 3(a)(8), 3(a)(9), 3(a)<12), 3(a)(13), and 3(a)(15)
through 3(a)(18). It is difficult to imagine how any of these
sections could apply to interviews obtained for historical purposes by
state institutions of higher education. These provisions may be
disregarded as they would not exempt records of oral history
interviews from public disclosure.




                              p. 160
Honorable Carl A. Parker - Page 5   (JM-37)




     Other exemptions to the Open Records Act might, under some
circumstances, except records of certain interviews or portions of
certain interviews from public disclosure.       These are sections
3(a)(l), (protecting information deemed confidential by law, including
a common law or constitutional right of privacy); 3(a)(2) (protecting
certain private information in personnel files); 3(a)(3) (the
litigation exception); 3(a)(4) (exception for information related to
competitive bidding); 3(a)(5) (protects negotiating position of
governmental body with respect to real property acquisitions and
donations); 3(a)(7) (attorney-client privilege); 3(a)(lO) (trade
secrets); 3(a)(ll) (inter-agency or intra-agency memoranda); and
3(s)(14) (student records at educational institutions). Although on
given facts, these provisions might exempt portions of certain
interviews from public disclosure, none of them would except all oral
history interviews.

     In summary, there is no general exception that prevents public
disclosure of records or oral history interviews acquired by an
institution of higher education or by an employee on behalf of the
institution. Portions of some oral history interviews might be
excepted from public disclosure by specific exceptions to the Open
Records Act.   Interviews filling certain narrow criteria might be
excepted from public disclosure in their entirety. If an interview is
conducted by a faculty member or researcher for his own use, and not
under the control or direction of the university, then the records
thereof might qualify as his personal notes. Open Records Decision
No. 77 (1975). In all probability, however, the typical oral history
interview acquired by an institution of higher education as part of
the institution's official activities would be available to the public
under the Open Records Act.

                             SUMMARY

             Oral  history    interviews acquired by      an
          institution of higher education in connection with
          its official activities would as a general matter
          be available to the public under the Open Records
          Act. Certain portions of some interviews, or some
          interviews in their entirety might be excepted
          from public disclosure if they fall within
          exceptions to the Open Records Act.




                                        JIM     MATTOX
                                        Attorney General of Texas



                               p. 161
Honorable Carl A. Parker - Page 6      (JM-37)




TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared,by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Nancy Sutton




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