QBffice of tfie !Zlttornep @enerst 

&date of QCexae 

September 12,199l 

Honorable Burton F. Raiford 

Interim Commissioner 

Texas Department of Human 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 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-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. 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-51 nor 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