Open Records Decision No. 240
April 16, 1980

	Re:  Whether records relating to correspondence received by the Department of 
Banking alleging manipulation of securities pledged as collateral for a bank loan are 
public under the Open Records Act.

Honorable Robert E. Stewart
Commissioner
Department of Banking
2601 North Lamar
Austin, Texas 78705

Dear Mr. Stewart:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to whether certain records of the Department of Banking are available to the 
public.

	In July, 1979, an officer of a private bank in Galveston, by letter addressed to a 
regional director of the Department of Banking, made allegations that a member of the 
legislature had been involved in the manipulation of securities pledged as collateral for a 
bank loan.  By letter of July 24, 1979, an examiner for the Department addressed a letter 
to the appropriate regional examiner, advising him to look into the matter.  Subsequently, 
on October 25, 1979, the bank in question issued a public statement declaring, inter alia, 
that the legislator was the subject of an investigation by the State Banking Board.  The 
following day, the Commissioner of Banking wrote to the legislator to assure him that he 
was not the subject of any such investigation, either by the Board or by the Department 
of Banking.  The bank has now requested copies of both the intra-departmental letter of 
July 24 and the October 26 letter from the Commissioner to the legislator.

	The first of these letters is excepted from disclosure by section 3(a)(11) of the 
Open Act, as

inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than one in litigation with 
the agency.

The July 24 letter consists of instructions, advice and recommendations, the precise type 
of information this office has long held to be confidential.  Attorney General Opinion H-
436 (1974); Open Records Decision Nos. 174 (1977); 128 (1976); 86 (1975).  We 
conclude that the letter of July 24, 1979, from the departmental examiner to the regional 
examiner is excepted from disclosure by section 3(a)(11) of the Act.

	As to the letter of October 26 from the Banking Commissioner to the legislator, 
you have suggested that it is made confidential by section 3(a)(12), which excepts

information contained in or related to examination, operating, or 
condition reports prepared by, or on behalf of, or for the use of an 
agency responsible for the regulation or supervision of financial 
institutions, and/or securities, as that term is defined in the Texas 
Securities Act;

or, alternatively, by section 3(a)(1), which excepts ‘‘information deemed confidential by 
law. . . .’’  The law to which you refer us here is article 342-210, V.T.C.S., which 
provides that

all information obtained by the Banking Department relative to the 
financial condition of state banks, . . . and all files and records of 
said Department relative thereto shall be confidential. . . .

	As we have indicated, the October 26 letter is merely a denial by the 
Commissioner that the legislator is a subject of investigation by the Department of 
Banking, together with a brief explanation of what matters the Department may 
investigate and that its investigative authority is inapplicable to the charges made against 
the legislator.  In our opinion, there is nothing contained in this letter which may fairly 
be said to constitute ‘‘examination, operating, or condition reports’’ of a financial 
institution.  Nor does the letter contain any information which is ‘‘relative to the 
financial condition’’ of a state bank.  As a result, we do not believe that the letter is 
confidential under either 3(a)(12) or 3(a)(1).  Thus, it is our opinion that the letter of 
October 26, 1979, from the Commissioner of Banking to the legislator who is the subject 
of this inquiry is not excepted from disclosure under any provisions of the Open Records 
Act.

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Ted L. Hartley
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

C. Robert Heath, Chairman
Susan Garrison
Rick Gilpin
Tom Pollan