Untitled Texas Attorney General Opinion ( 1982 )

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
p. 1622