The Attorney General of Texas 

December 31, 1982 

MARK WHITE 

Attorney General 

Supreme Court Building 

P. 0. BOX 12546 

Austin, TX. 76711.2546 

5121475-2501 

Telex 9101674-1367 

Telecopier 512/475-0266 

1607 Main St., Suite 1400 

Dallas, TX. 752014709 

214/742-6944 

4624 Alberta Ave., Suite 160 

El Paso. TX. 79905-2793 

9151533.3484 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002.6966 

7131650-0666 

606 Broadway, Suite 312 

Lubbock. TX. 79401-3479 

8061747-5236 

4309 N. Tenth, Suite B 

McAllen, TX. 76501-1665 

5121682-4547 

200 Main Plaza, Suite 400 

San Antonio. TX. 76205.2797 

5121225-4191 

An Equal Opportunity1 

Affirmative Action Employer 

Lauro F. Cavazos, Ph.D. 

President 

Texas Tech University 

Texas Tech University Health 

Science Center 

P. 0. Box 4349 

Lubbock, Texas 79409 

Opinion No. ~~-565 

Re: Availability of Texas Tech 

University student and personnel 

files to the Department of Labor 

Dear Dr. Csvazos: 

You have requested an opinion from this office. The facts, as 

set forth in your request letter, are as follows: 

The Department of Labor is demanding that our 

files be made available to their office in their 

investigation of the treatment of minorities and 

females at Texas Tech University. No claims of 

discrimination have been made, however. Texas 

Tech University has been investigated several 

times by the Department of Education pursuant to 

Titles VI, VII, and IX. The Department of 

Education found no evidence of discrimination. 

Officials and employees at Texas Tech have already 

spent numerous hours of their time providing 

documents, preparing reports, and meeting with 

officials from the Department of Education. I 

view the demand from the Department of Labor for 

the same records for the same purposes as a 

considerable duplication of effort both on the 

part of our employees and also as to the federal 

employees. I have a further objection to the 

Department of Labor's request for our files in 

that student and personnel records are 

confidential; however, because of the Freedom of 

Information Act, these records can be released to 

the public should the Department of Labor gain 

access to them. 

You ask: 

Must Texas Tech University comply with the 

request of the Department of Labor that it, the 

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Dr. Lauro F. Cavazos - Page 2 (Mw-565) 

Department of Labor, have complete access to 

personnel and student records at Texas Tech 

University? 

You object to releasing confidential student and personnel 

records to the Department of Labor because they would then be subject 

to public disclosure under the federal Freedom of Information Act. 

Former President Lyndon Johnson issued Executive Order No. 

in 1965. This order provides, inter alla, that: 

Section 101. It is the policy of the 

Government of the United States to provide equal 

opportunity in Federal employment for all 

qualified persons, to prohibit discrimination in 

employment because of race, creed, color, or 

national origin, and to promote the full 

realization of equal employment opportunity 

through a positive, continuing program in each 

executive department and agency. The policy of 

equal opportunity applies to every aspect of 

Federal employment policy and practice. 

. . . . 

section 202. Except in contracts exempted in 

accordance with Section 204 of this Order, all 

Government contracting agencies shall include in 

every Government contract hereafter entered into 

the following provisions: 

'During the performance of this contract, 

the contractor agrees as follows: 

. . . . 

(4) The contractor will comply with all 

provisions of Executive Order No. 11246 of 

September 24, 1965, and of the rules, 

regulations, and relevant orders of the 

Secretary of Labor. 

(5) The contractor will furnish all 

information and reports required by Executive 

Order No. 11246 of September 24, 1965, and by 

the rules, regulations, and orders of the 

Secretary of Labor, or pursuant thereto, and 

will permit access to his books, records, and 

accounts by the contracting agency and the 

Secretary of Labor for purposes of 

11246 

p. 2079 
Dr. Laura F. Cavazos - Page 3 W-565) 

investigation to ascertain compliance with such 

rules, regulations, and orders. 

. . . . 

Section 205. All contracting agencies shall 

comply with the rules of the Secretary of Labor in 

discharging their primary responsibility for 

securing compliance with the provisions of 

contracts and otherwise with the terms of this 

Order and of the rules, regulations, and orders of 

the Secretary of Labor issued pursuant to this 

Order. They are directed to cooperate with the 

Secretary of Labor and to furnish the Secretary of 

Labor such information and assistance as he may 

require in the performance of his functions under 

this Order.... 

Section 201 of Executive Order No. 11246 provides that the 

Secretary of Labor “shall adopt such rules and regulations... as he 

deems necessary and appropriate to achieve the purposes” of the order. 

These regulations may be found at 41 C.F.R. section 60-1.4. They 

require those who receive “government contracts” and “federally 

assisted construction contracts,” as those terms are defined therein, 

to include in each contract and in each modification thereof if not 

included in the original contract, the same equal employment 

opportunity clause that is set out in Executive Order No. 11246. As 

one can see from the foregoing quotation, this clause provides, inter 

alla, that the contractor must agree to comply with the order and 

“permit access to his books, records, and accounts... for purposes of 

investigation to ascertain compliance with” the rules, regulations, 

and orders of the Secretary of Labor. The Executive Order itself 

requires contractors to cooperate with the Secretary of Labor and to 

furnish him “such information and assistance as he may require in the 

performance of his functions under this Order.” Section 205. 

At least two federal courts have held that Executive Order No. 

11246 and the regulations promulgated thereunder were issued pursuant 

to constitutional and statutory authority and therefore have the full 

force and effect of law. Contractors Association of Eastern 

Pennsylvania v. Secretary of Labor, 442 F.2d 159, 171 (3rd Cir. 1971). 

cert. denied, 404 U.S. 854 (1971); Legal Aid Society of Alameda County 

v. Brennan, 381 F.Supp. 125, 130 (N.D. Cal. 1974). See also Hollander 

v. Sears, Roebuck and Company. 450 F.Supp. 496, 500 (D. Conn. 1978). 

You inform us that Texas Tech University receives federal contracts in 

the area of research and instruction. Since these contracts are 

subject to Executive Order No. 11246 and the regulations promulgated 

thereunder, they presumably include the aforementioned equal 

employment opportunity clause. If they do, then it necessarily 

follows that the university must comply with the requirements of that 

p.2080 
Dr. Laura F. Cavazos - Page 4 (MW-565) 

clause, including the requirement that it permit the Secretary of 

Labor to have access to its books, records, and accounts. 

At this juncture, we emphasize that even if Executive Order No. 

11246 and the accompanying administrative regulations did not exist, 

the university would still be required to make most of its records 

available for inspection. The Open Records Act, article 6252-17a, 

V.T.C.S., provides that all information collected, assembled, or 

maintained by a governmental body pursuant to law or ordinance or in 

connection with the transaction of official business is public 

information unless it falls within one of the exceptions set forth in 

section 3(a) thereof. Thus, unless the university could successfully 

invoke one or more of these exceptions, it would be required to make 

its records available for inspection. 

Although, under Executive Order No. 11246 and the Open Records 

Act, the university is generally obligated to make information in its 

possession available to the Secretary of Labor, a question exists as 

to whether this obligation extends to information which is made 

confidential by statutory law. You contend that personnel and student 

records are "confidential," and you question whether the university 

may legally be required to provide such records to the Secretary of 

Labor. 

In Marks v. Central Intelligence Agency, 590 F.2d 997 (D.C. Cir. 

1978). the court of appeals observed that an executive order cannot 

supersede a statute. 530 F.2d at 1003. See also American Federation 

of Government Employees, AFL-CIO V. Freeman, 498 F.Supp. 651, 658 

(D.C. 1980). One federal statute which would almost assuredly be 

applicable in this instance is the Buckley Amendment, 20 U.S.C. 

section 1232g, which makes certain student records confidential. If 

any information in the student records to which you refer is made 

confidential by the Buckley Amendment, we conclude that it may be 

released only in accordance with the provisions of that amendment. 

Since we have no specific records before us, we cannot determine the 

extent to which this act may be applicable in your situation. 

Unlike student records, however, personnel records are not, to 

our knowledge, made inherently confidential by any federal statute. 

The Texas Open Records Act contains various exceptions which may be 

relied upon in individual instances to shield information in personnel 

records from the public view. See e.g., §§3(a)(l), 3(a)(2). In 

general, however, personnel records are open and available to the 

public. Because we have no specific personnel records before us, we 

cannot determine whether any Open Records Act exception might be 

applicable to any such records in your possession. Because we cannot 

make this determination, we also cannot determine whether, even if you 

could withhold such records under the Open Records Act, you must 

nevertheless release them to the Secretary of Labor under Executive 

Order No. 11246. While it is clear that this order cannot supercede a 

p. 2081 
Dr. Laura F. Cavazos - Page 5 (MW-565) 

federal statute, the extent to which it would prevail in the event of 

a conflict with an Open Records Act exception authorizing material to 

be kept secret is an entirely different question. Whether it would 

prevail would depend, in our opinion, upon the specific factual 

setting and upon the nature of the specific underlying basis for 

invoking such exception. 

SUMMARY 

Texas Tech University must comply with the 

equal opportunity clause set out in its federal 

contracts pursuant to Executive Order No. 11246 

and the regulations promulgated thereunder. This 

clause requires, inter alla, that the university 

make available to the Secretary of Labor its 

books, records, and accounts. Those portions of 

said books, records, and accounts which consist of 

student records which are confidential under the 

Buckley Amendment, 20 U.S.C. §1232g, may only be 

released pursuant to the provisions of that 

amendment. We cannot determine in the abstract 

whether any of the university's personnel records 

may be withheld from the Secretary of Labor, 

either temporarily or permanently. 

WHITE 

Attorney General of Texas 

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 

Jim Moellinger 

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