                                The Attorney          General        of Texas
                                                    May 5. 1982
MARK WHITE
Attorney General

                               Honorable W. S. McBeath.               Opinion No. NW-464
Supreme Court Buildin
                               Administrator
P. 0. BOX 12549
Austin, TX. 78711- 2542
                               Texas Alcoholic Beverage Commission    Re:     Whether    information
512/4752x)1                    P. 0. Box 13127, Capitol Station       deemed    confidential   under
Telex 9101974-1367             Austin, Texas   78711                  section 5.48 of the Alcoholic
Telecopier 5W475.0255                                                 Beverage Code may be turned
                                                                      over to United States Justice
1607 Main St., Suite 1400                                             Department     pursuant     to
Dallas, TX. 75201-4709                                                Antitrust Civil Process Act
2141742-5344
                               Dear Mr. McBeath:
4S24 Alberta Ave., Suite 180
El Paso. TX. 78905-2793             The federal Antitrust Civil Process Act, 15 U.S.C. section 1311
91515333494                    et seq., the Open Records Act, article 6252-17a. V.T.C.S., and section
                               5.48 of the Alcoholic Beverage Code are at issue in your request for
                               our opinion. You ask:
1220 Dallas Ave., Suite 202
Houston. TX. 77002b9SS
713fS5cut5S6                                 Do the provisions of the Antitrust Civil
                                        Process Act empower the Justice Department to
                                        obtain through a civil investigative demand
SO9 Broadway. Suite 312                 material deemed confidential by section 5.48 of
Lubbock. TX. 79401-3479                 the Alcoholic Beverage Code and seemingly exempt
9061747-5239
                                        from disclosure under section 3(a)(l) of the Open
                                        Records Act?
4309 N. Tenth, Suite S
McAllen, TX. 79501-1695             Section 5.48 of the Alcoholic Beverage Code provides as follows:
512lSS2-4547

                                              (a) 'Private records,' as used in this
200 Main PIam. Suite 4w                  section, meane all records of a permittee.
San Antonio. TX: 78205-2797              licensee. or other person other than the name,
51212254191                              proposed location, and type of permit or license
                                         sought in an application for an, original or
An Equal OpportunityI                    renewal permit or license, or in a periodic report
Affirmative Action Employer              relating to the importation, distribution, or sale
                                         of ,alcoholicbeverages required by the commission
                                         to be regularly filed by a permittee or licensee.

                                              (b) The private records of a permittee,
                                         licensee, or other person that are required or
                                         obtained by the commission or its agents, in
                                         connection with an investigation or otherwise, are




                                                     p. 1619
Mr. W. S. McBeath - Page 2   '(MJ-464)




         privileged unless introduced In evidence in a
         hearing before the commission or before a court in
         this state or the United States.

Section 3(a)(l) of the Open Records Act excepts from required public
disclosure "information deemed confidential by law."

     In the Antitrust Civil Process Act, Congress provided the
Antitrust Division of the Department of Justice with compulsory
pre-complaint civil investigative process. The principal reason for
the enactment of the act was to cure a major problem which the
Department of Justice had encountered in its efforts to enforce the
antitrust laws: the lack of compulsory process ,to obtain evidence
during investigations where civil proceedings were contemplated from
the outset. Report of Attorney General's National Committee to Study
the Antitrust Laws 343-45 (1955). As the committee report pointed
out, inadequate investigative tools often led to incomplete
investigations that in turn resulted in civil proceedings that a more
careful search and study would have shown were.unnecesssry.

    Section 1312(a) of the act provides in relevant part that:

              Whenever the Attorney General, or the
         Assistant Attorney    General in charge of the
         Antitrust Division of the Department of Justice,
         has reason to believe that any person may be in
         possession, custody, or control of any documentary
         material, or may have any information, relevant to
         a civil antitrust investigation, he,may. prior to
         the institution of a civil or criminal proceeding
         thereon, issue in writing, and cause to be served
         upon such person, a civil investigative demand
         requiring such person to produce such documentary
         material   for     inspection  end    copying   or
         reproduction....

wPerson" is defined in section 1311(f) as “any natural person,
partnership, corporation, association, or other legal entity,
including any person acting under color or authority of State law."

     Couched in different .language, your question is essentially as
follows:

              &lust a state agency furnish information
         requested by the Justice Department pursuant to a
         civil investigative demand even though the
         information is confidential under state law?




                                p. 1620
    ..-:   .


.              Mr. W. S. McBeath - Page 3     (MW-464)




                    It is beyond cavil that a state may not retard, impede, burden or
               otherwise control the operation of a constitutional law enacted by
               Congress. See, e.g., Perez V. Campbell, 402 U.S. 637 (1971); Nash v.
               Florida Industrial Commission, 389 U.S. 235 (1967). This is true even
               where, in nassinn its law. the state had some ouroose in mind other
               than frustrationof federal goals. Peres v. Campbeil. supra.

                    The constitutionality of civil investigative demands issued under
               the Antitrust Civil Process Act has been upheld. See, e.g., Hyster
               Company v. Unlted States, 338 F.2d 183 (9th Cir. 1964); Petition of
               Gold Bond Stamp Company, 221 F.Supp. 391 (D. Minn. ,1963).aff'd, 325
               F.2d 1018 (8th Cir. 1964).       Unquestionably, civil investigative
               demands serve a legitimate federal purpose: they enable the Justice
               Department to investigate much ‘more effectively suspected violations
               of the federal antitrust laws.

                    In our opinion, to conclude that the Alcoholic Beverage
               Commission may refuse to comply with a civil investigative demand on
               the ground that the material sought is confidential under Texas law
               16. in effect. to sanction the notion that validly enacted federal
               legislation must yield where it clashes with state legislation. Such
               a conclusion is completely at odds with the concepts underlying the
               supremacy' clause of the federal Constitution.. United States
               Constitution article VI, clause 2. This clause, as we'have noted,
               prohibits states from erecting barriers which hinder or prevent the
               accomplishment of permissible congressional goals.

                     If material is to be regarded as beyond the reach of a civil
               investigative demand, it must be because the federal act itself places
               it there. See 15 U.S.C. 11312(c). We therefore answer your question
               in the affirmative.

                                            SUMMARY

                         . The Alcoholic Beverage Commission may not
                        withhold information which is the subject of a
                        civil investigative demand issued pursuant to the
                        Antitrust Civil Process Act, 15 U.S.C. section
                        1311 et seq., on the grouqd that the information
                        is confidential under section 3(a)(l) of the Open
                        Records Act and article 5.48 of the Alcoholic
                        Beverage Code.




                                                         Attorney General of Texas




                                              p. 1621
    Mr. W. S. McBeath - Page'4    (?lW-464)
.                                             ..




    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
    Patricia Hinojosa
    Jim Moellinger
    James V. Sylvester




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