# TheAttorney GeneralofTexas

December 31, 1982
MARK WHITE Attorney General

Supreme Court Building P.0. BOX12546 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 ElPaso. 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

200Main Plaza, Suite 400 San Antonio. TX. 76205.2797 5121225-4191

An Equal Opportunity1 Affirmative Action Employer Lauro F. Cavazos, Ph.D. President Texas TechUniversity Texas TechUniversity Health Science Center P. 0. Box4349 Lubbock, Texas 79409 Opinion No.~~-565

Re: Availability of Texas Tech University student andpersonnel files to theDepartment of Labor

DearDr. Csvazos:

You have requested an opinion from this office. The facts, as set forth inyour request letter, are as follows:

TheDepartment of Labor is demanding that our files be madeavailable to their office in their investigation of the treatment of minorities and females at Texas Tech University. Noclaims 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 andemployees at Texas Techhave already spent numerous hours of their time providing documents, preparing reports, and meeting with officials from the Department of Education. I view the demandfrom 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 andalso 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 tothem.

Youask:

Must Texas Tech University comply with the

request of the Department of Labor that it, the

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Department of Labor, have complete access to personnel and student records at Texas Tech University?

You object to releasing confidential student and personnel records tothe Department of Labor because they would then be subject topublic disclosure under the federal Freedomof 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 andpractice.

....
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 asfollows:

.... (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 ofLabor.
(5) The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24, 1965, andby 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

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investigation toascertain compliance with such rules, regulations, andorders.

.... Section 205. All contracting agencies shall comply with the rules of the Secretary ofLabor in discharging their primary responsibility for securing compliance with the provisions of contracts and otherwise with the terms of this Order andof the rules, regulations, andorders of the Secretary of Labor issued pursuant to this Order. They are directed to cooperate with the Secretary of Labor andtofurnish 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 deemsnecessary andappropriate toachieve the purposes” of the order. These regulations maybe 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 tohis books, records, andaccounts... 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 andassistance as hemayrequire in the performance ofhis functions under this Order.” Section 205.

At least two federal courts have held that Executive Order No. 11246 andthe regulations promulgated thereunder were issued pursuant to constitutional andstatutory authority andtherefore have the full force and effect of law. Contractors Association of Eastern Pennsylvania v. Secretary ofLabor, 442F.2d 159, 171 (3rd Cir. 1971). cert. denied, 404U.S. 854 (1971); Legal Aid Society of Alameda County
v. Brennan, 381F.Supp. 125, 130 (N.D. Cal. 1974). Seealso Hollander
v. Sears, Roebuck andCompany. 450F.Supp. 496, 500 (D. Conn. 1978). Youinform usthat Texas TechUniversity 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

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clause, including the requirement that it permit the Secretary of Labor tohave access to its books, records, andaccounts.
At this juncture, weemphasize that even if Executive Order No. 11246 and the accompanying administrative regulations did not exist, the university would still be required to makemost 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 byagovernmental body pursuant to lawor 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 tomake its records available for inspection. Although, under Executive Order No. 11246 and the OpenRecords Act, the university is generally obligated tomakeinformation in its possession available to the Secretary of Labor, aquestion exists as to whether this obligation extends to information which is made confidential bystatutory law. Youcontend that personnel andstudent records are "confidential," andyou question whether the university maylegally be required to provide such records to the Secretary of Labor.

InMarksv. Central Intelligence Agency, 590F.2d 997 (D.C. Cir. 1978). the court of appeals observed that an executive order cannot supersede astatute. 530F.2d at 1003. Seealso 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 maybe released only in accordance with the provisions of that amendment. Since wehave nospecific records before us, wecannot determine the extent towhich this act maybeapplicable inyour situation.

Unlike student records, however, personnel records are not, to
our knowledge, made inherently confidential by any federal statute. TheTexas OpenRecords Act contains various exceptions which maybe relied upon in individual instances to shield information inpersonnel 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 wehave nospecific personnel records before us, we cannot determine whether any Open Records Act exception might be applicable toanysuch records inyour possession. Because wecannot makethis determination, wealso cannot determine whether, even if you could withhold such records under the Open Records Act, you must nevertheless release themto the Secretary of Labor under Executive Order No. 11246. While it is clear that this order cannot supercede a

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federal statute, the extent towhich it would prevail in the event of
aconflict with anOpenRecords 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 andthe 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, andaccounts which consist of student records which are confidential under the Buckley Amendment, 20U.S.C. §1232g, mayonly be released pursuant to the provisions of that amendment. Wecannot determine in the abstract whether anyof the university's personnel records may be withheld from the Secretary of Labor, either temporarily or permanently.

WHITE Attorney General of Texas

JOHNW.FAINTER,JR. First Assistant Attorney General

RICHARDE.GRAYIII Executive Assistant Attorney General Prepared byJonBible Assistant Attorney General

APPROVED: OPINIONCOMMITTEE

SusanL. Garrison, Chairman JonBible Rick Gilpin JimMoellinger

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