Open Records Decision No. 270
May 12, 1981

	Re:  Whether affidavit taken in connection with an E.E.O.C. investigative session 
is available under the Open Records Act

Honorable Jane H. Macon
San Antonio City Attorney
P. O. Box 9066
San Antonio, Texas  78285

Dear Ms. Macon:

	You have requested our decision under the Open Records Act, article 6252-17a, 
V.T.C.S., as to whether an affidavit taken in connection with an investigative session of 
the federal Equal Employment Opportunity Commission [hereinafter EEOC] is available 
to the public.

	In the summer of 1980, a former employee of the city of San Antonio filed with 
the EEOC a complaint of discrimination against his former employer.  On October 2, 
1980, the EEOC held an investigative session at which the commission, inter alia, took 
the affidavit of another city employee.  On November 13, 1980, the attorney for the 
discharged employee requested a copy of this affidavit.  You suggest that it is excepted 
from disclosure under sections 3(a)(1), 3(a)(3) and 3(a)(11) of the Open Records Act.

	Section 3(a)(3) excepts:

information relating to litigation of a criminal or civil nature and 
settlement negotiations, to which the state or political subdivision is, 
or may be, a party, or to which an officer or employee of the state or 
political subdivision, as a consequence of his office or employment, 
is or may be a party, that the attorney general or the respective 
attorneys of the various political subdivision has determined should 
be withheld from public inspection.

The complaint in this case is still pending before the EEOC, and the requesting party has 
also filed a discrimination charge with the Department of Labor.  You indicate that there 
is a reasonable likelihood that suit will be filed, and you have determined that the 
affidavit should be withheld from disclosure under section 3(a)(3).  Since both 
complaints are presently pending, we believe that such determination is reasonable and 
that this question is controlled by our decision in Open Records Decision No. 266 (1981).  
Accordingly, it is our decision that the employee's affidavit at issue here is excepted from 
disclosure by section 3(a)(3) of the Open Records Act.  In view of this determination, we 
need not address the applicability of section 3(a)(1) or section 3(a)(11).

Very truly yours,

Mark White
Attorney General of Texas

John W. Fainter, Jr.
First Assistant Attorney General

Richard E. Gray III
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Walter Davis
Rick Gilpin
Jim Moellinger
Bruce Youngblood