Open Records Decision No. 386
June 21, 1983

	Re:  Whether personnel file of former employee and financial records of 
Department of Banking are available to the public under the Open Records Act

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

Dear M. Stewart:

	A former employee of the Department of Banking has asked you to allow him to 
examine “any and all records and documents related and applicable to” his prior 
employment at the department, i.e., his “personnel file, leave record(s), etc.”  In addition, 
he desires access to a substantial body of departmental records which were kept under his 
supervision, including the department's expense journal, the fiscal year 1982 general 
ledger, certain travel vouchers, the fiscal year 1982 disbursements register, and payroll 
vouchers, including supporting annual and sick leave records.

	You have asked us to decide whether this information is excepted from required 
public disclosure under the Open Records Act, article 6252-17a, V.T.C.S.  You contend 
that sections 3(a)(1), 3(a)(2), 3(a)(3), 3(a)(10), 3(a)(11), and 3(a)(12) are applicable.

	Section 3(a)(3) excepts from required disclosure:

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 subdivisions has determined should 
be withheld from public inspection.

	At the outset, we note that the fact that the requestor is a former employee of the 
department does not mean that he has any “special right of access” to any of this 
information.  See Open Records Decision Nos. 326 (1982); 288 (1981).  Any of the 
requested information which is within section 3(a)(3) is as unavailable to this requestor 
as it would be to anyone else.

	The applicability of section 3(a)(3) is contingent upon (1) whether litigation is 
either pending or reasonably anticipated and (2) whether the requested information 
“relates” to the pending or contemplated litigation.  See, e.g., Open Records Decision 
Nos. 351, 326 (1982).

	The requestor has filed a complaint of employment discrimination with the Equal 
Employment Opportunity Commission.  A hearing on that complaint is set for June 8, 
1983.  This office has frequently held that the pendency of a complaint before the 
commission indicates a substantial likelihood of potential litigation, and is therefore 
sufficient to satisfy the first prong of the 3(a)(3) test.  Open Records Decision Nos. 336, 
326 (1982); 281, 270 (1981).

	To sustain a claim under section 3(a)(3), it must also be demonstrated that the 
information at issue “relates” to the pending litigation.  The assistant attorney general 
who represents the department of banking advises that, in this instance, the information 
consists of records personally created and maintained by the complainant.  The 
complainant is contending that his termination was the result of illegal discrimination, 
while the department argues that his competence was a significant factor.  Thus, the 
complainant's competence in creating and maintaining the records which are the subject 
of this request is an issue in the litigation, and the records themselves will be offered in 
evidence to support the department's position.  As a result, we believe that the 
information in question sufficiently “relates” to the litigation.

	It is therefore our decision that the requested information is excepted from 
disclosure under section 3(a)(3) of the Open Records Act.  Of course, any material that is 
produced or discovered in connection with the EEOC hearing is no longer protected by 
section 3(a)(3).

Very truly yours,

Jim Mattox
Attorney General of Texas

Tom Green
First Assistant Attorney General

David R. Richards
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

Approved:
Opinion Committee

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moellinger
Nancy Sutton
Bruce Youngblood