# QBffice oftfie!Zlttornep

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### &dateofQCexae September 12,199l

Honorable Burton F.Raiford Interim Commissioner TexasDepartment ofHuman Services P.O.Box 149030 Austin, Texas 78714-9030 Opinion No. DM-40 Re: Whether federal law authorizes a federal agency to require the Department ofHuman Servicesto 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-5 of 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. 42U.S.C. 992OOOe-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 ofreliefthe EEOC includes:

(2)Arequirement that corrective, curative orpreventive action be taken, or measures adopted, to ensure that similar found or conciliated violations ofthe lawwillnot recur.

1These arenot federal regulations adopted pursuant tostatute, but statements ofpolicy

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EEOC Compl. Man.(CCH) at 1. As a component ofthis 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 ofyour question implies that the record isto 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, inpart:

Any person who willtirlly ~destroys, mutilates, removes without permission asprovided herein, or alters public records shallbe guiltyofamisdemeanor
. . . . Section 5(a) ofthe Gpen Records Actprovides, inpertinent part:

Itshall be the duty ofthe 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 ofstate and local government records. Section441.035ofthe Government Codeprovides, inpart:

p. 197Honorable Burton F.Raiford -Page 3 (DM-40)

(e) With the approval ofthe director and librarian [ofthe 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 ofthe 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-51 nor any other provision ofthe 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 ofdiscrimination complaints. The EEOC lacks the authority to authorize or require a state agency to ignore a state statute suchasthe Open Records Act. The EEOC has no power to adjudicate claims or impose administrative sanctions. m 415 U.S. 1361 at 44. - v 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. 196Honorable Burton F.Raiford -Page 4 (DM-40)

Attorney General Opinion JM-830 at 7(emphasis inoriginal). While the above-quoted passage from Attorney General Opinion JM-830 discusses sealing information inpersonnel records rather than deleting it, itcorrectly analyxes the narrow issue presented in your predecessor’s opinion request. As federal lawdoes not authorize the EEOC to require that records be sealed,2neither does it authorize the EEOC to require the deletion ofinformation from persomrel files in contravention ofstate 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 lawwhilepermitting the inclusion ofrecord 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 apersonnel 6le subject to an EEGCdispute that provides for the destruction of such records upon settlement ofthe dispute. Accordingly, we would encourage your staffto 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 ofstate law. Section 5ofthe Gpen Records Act and section 441.035(e) ofthe 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 istobe available forpublicinspection unless spccif~callyexcepted insubs&on (a) ofthat sectioa. some of the exceptions eluunerated in section 3(a) may coincidentauy except solue information which the EEOC maywish expunged inasettlement agreement. However, unless one of the exceptions insection 3(a) applies, information maynot be withheld frompublic disclosure unlcs a courtso orders.
p. 199Honorable 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 ofTexas WILLPRYOR First Assistant Attorney General MARY KELLER Executive Assistant Attorney General JUDGE ZOLLIE STEAKLEY (Ret.) SpecialAssistant Attorney General RENEA HICKS SpecialAssistant Attorney General MADELEINE B.JOHNSON Chair, Opinion Committee Prepared byJohn Steiner Assistant Attorney General

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