Untitled Texas Attorney General Opinion ( 1991 )

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September 12,199l
Honorable Burton F. Raiford Opinion No. DM- 40
Interim Commissioner
Texas Department of Human Services Re: Whether federal law authorizes a
P.O. Box 149030 federal agency to require the Depart-
Austin, Texas 78714-9030 ment of Human Services to delete certain
information from personnel files
(RQ-2152)
Dear Commissioner Raiford:
Your predecessor in office sought the opinion of this office as to whether
federal law requires the deletion of certain information from personnel files.
Specifically, your predecessor asked whether the authority given the federal Equal
Employment Opportunity Commission (EEOC) in title 42. section’2OOOe-5of the
United States Code and further explained in the policies and conciliation standards
of the EEOC is paramount federal law that requires the Department of Human
Services to delete information from personnel files in settlement agreements with
the EEOC.
The EEOC has authority to investigate and attempt to resolve discrimination
claims under title VII of the Civil Rights Act of 1964, by informal methods of
conciliation. 42 U.S.C. 99 2OOOe-4(g),2OOOe-5.In the EEOC Compliance Manual,
containing the policy statement on remedies and relief for individual cases of
unlawful discrimination, approved February 5, 1985, the EEOC enumerates
elements which all conciliation agreements should contain in appropriate
circumstances.t Among these elements of relief the EEOC includes:
(2) A requirement that corrective, curative or preventive action
be taken, or measures adopted, to ensure that similar found or
conciliated violations of the law will not recur.
1 These are not federal regulations adopted pursuant to statute, but statements of policy
p. 196
Honorable Burton F. Raiford - Page 2 (DM-40)
EEOC Compl. Man. (CCH) at 1. As a component of this element the EEOC policy
statement further provides:
In addition, the respondent must be required to take all other
appropriate steps to eradicate the discrimination and its
effects, such as the expunging of adverse materials relating to
the unlawful employment practice from the discriminatee’s
personnel files.
Id at 2. The term “deletion” in the context of your question implies that the record
is to be destroyed or otherwise permanently removed from the governmental body’s
custody. Section 12 of the Texas Gpen Records Act, V.T.C.S. article 6252-17a,
provides, in part:
Any person who willtirlly ~destroys, mutilates, removes
without permission as provided herein, or alters public records
shallbe guilty of a misdemeanor . . . .
Section 5(a) of the Gpen Records Act provides, in pertinent part:
Itshall be the duty of the officer for public records, subject
to penalties provided in this Act, to see that the public records
are made available for public inspection and copying; that the
records are carefully protected from deterioration, alteration,
mutilation, loss, or unlawful removal; and that public records
are repaired, renovated, or rebound when necessary to
maintain them properly. When records are no longer currently
in use, it shall be within the discretion of the governmental
body . . . to determine a period of time for which said
records will be preserved subject to state laws governing the
destruction and other disposition of state and local government
records.
Section 441.035 of the Government Code provides, in part:
p. 197
Honorable Burton F. Raiford - Page 3 (DM-40)
(e) With the approval of the director and librarian [of the
State Library and Archives Commission], in accordance with
this section, the head of any department or institution may
destroy any state record in the custody of the head of the
department or institution that, in the opinion of the head of
the department or institution, does not have any further legal,
administrative, or historical value. Before destroying the state
record, the head of the department or institution must file an
application to do so with the director and librarian that
describes the original purpose and the contents of the state
record.
In Attorney General Opinion JM-830 (1987), this office considered, among other
things, whether a state agency could seal personnel records subject to the EEOC’s
authority to resolve complaints through conciliation. That opinion concluded that
[nleither this provision [section 2OOOe-51nor any other
provision of the federal act expressly authorizes the EEOC to
order state agencies to seal personnel records. This power is
beyond the commission’s authority to approve the vm
resolution of discrimination complaints. The EEOC lacks the
authority to authorize or require a state agency to ignore a
state statute such as the Open Records Act. The EEOC has no
power to adjudicate claims or impose administrative sanctions.
m - v 415 U.S. 1361 at 44.
Responsibility for the enforcement of the act is vested in the
federal courts. Id. See &xs. Roebuck & Co. v. m
. .
oppo&&y COmml~ 435 F. Supp. 751, 761
(D.D.C. 1977) (commission lacks authority to issue binding
substantive rules).
. . . .
We have no doubt that expunction is an appropriate
iuQirial remedy to afford relief under both the federal act and
the state act. . . . As indicated, the federal commission lacks
authority to adjudicate claims or impose administrative
sanctions.
p. 196
Honorable Burton F. Raiford - Page 4 (DM-40)
Attorney General Opinion JM-830 at 7 (emphasis in original).
While the above-quoted passage from Attorney General Opinion JM-830
discusses sealing information in personnel records rather than deleting it, it correctly
analyxes the narrow issue presented in your predecessor’s opinion request. As
federal law does not authorize the EEOC to require that records be sealed,2 neither
does it authorize the EEOC to require the deletion of information from persomrel
files in contravention of state law. However, as Attorney General Opinion JM-830
discusses sealing records rather than deleting them, it does not discuss section 5 of
the Gpen Records Act and section 441.035(e) of the Government Code. These
provisions, which provide for the destruction of certain state records upon
application to the director and librarian of the State Library and Archives
Commission, may provide a mechanism for deletion of certain records in
compliance with state law while permitting the inclusion of record expungement as a
remedy in voluntary EEOC settlements. Under these provisions a state agency in
consultation with the director and librarian could establish a retention policy for
those portions of a personnel 6le subject to an EEGCdispute that provides for the
destruction of such records upon settlement of the dispute. Accordingly, we would
encourage your staff to contact the Texas State Library and Archives Commission.
SUMMARY
As federal law does not author& the EEOC to require
that records be sealed, neither does it authorize the EEOC to
require the deletion of information from personnel files in
contravention of state law.
Section 5 of the Gpen Records Act and section 441.035(e)
of the Government Code which provide for the destruction of
* The Texas Open Records Act, art. 6252-17a, V.T.C.S., provides for public access to records
of govenlmcntal bodiq imhling state agencies. Section 3 of the Open Records AU provides that
information is to be available for public inspection unless spccif~cally excepted in subs&on (a) of that
sectioa. some of the exceptions eluunerated in section 3(a) may coincidentauy except solue
information which the EEOC may wish expunged in a settlement agreement. However, unless one of
the exceptions in section 3(a) applies, information may not be withheld from public disclosure unlcs a
court so orders.
p. 199
Honorable Burton F. Raiford - Page 5 (DM-40)
certain state records upon application to the director and
librarian of the State Archives and Library Commission, may
provide a mechanism for deletion of certain records in
compliance with state law while permitting the inclusion of
record expungement as a remedy in voluntary EEOC
settlements.
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
MADELEINE B. JOHNSON
Chair, Opinion Committee
Prepared by John Steiner
Assistant Attorney General
p. 200