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Office of the Attorney General - State of Texas John Cornyn |
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July 30, 2002 Ms. Lisa Aguilar
OR2002-4164 Dear Ms. Aguilar: You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 165718. The Corpus Christi Department of Human Relations (the "department") received a request for a listing of all respondents that had charges brought against them in the past five years. As responsive to the request, you have submitted a sample of an employment discrimination charge that was filed with the department. You claim that the requested information is excepted from disclosure under section 552.101 of the Government Code. We have considered the exception you claim and reviewed the submitted representative sample of information.(1) Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information made confidential by other statutes. Section 2000e-5 of Title 42 of the United States Code provides in pertinent part: Whenever a charge is filed . . . . alleging that an employer . . . has engaged in an unlawful employment practice, the [Equal Employment Opportunity] Commission [(the "EEOC")] shall serve a notice of the charge . . . and shall make an investigation thereof. . . . . Charges shall not be made public by the [EEOC]. . . . . If the [EEOC] determines after such investigation that there is reasonable cause to believe that the charge is true, the [EEOC] shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such informal endeavors may be made public by the [EEOC], its officers or employees, or used as evidence in a subsequent proceeding without the written consent of the persons concerned. Any person who makes public information in violation of this subsection shall be fined not more than $1,000 or imprisoned for not more than one year, or both. . . . . 42 U.S.C. § 2000e-5(b) (emphasis added.) If the EEOC had processed the discrimination charges at issue, that agency would be prohibited from releasing information about the discrimination charges that were made. In this instance, however, the department processed these complaints on behalf of the EEOC. You assert that the department acts as the EEOC's agent in processing these claims and is therefore subject to the confidentiality requirements of section 2000e-5(b). The EEOC is authorized by statute to utilize the services of state and local fair employment practices agencies to assist in meeting its statutory mandate to enforce laws prohibiting employment discrimination. See 42 U.S.C. § 2000e-4(g)(1). You inform us that the department is a local agency that is authorized by section 21.152 of the Labor Code to investigate complaints of employment discrimination and that it has a contract and "work sharing agreement" with the EEOC, which you have submitted. The agreement provides in pertinent part that "the EEOC and the [department] each designate the other as its agent for the purpose of receiving and drafting charges . . . ." (Emphasis added.) The Fifth Circuit has acknowledged that such a work sharing agreement creates a limited agency relationship between the parties. See Griffin v. City of Dallas, 26 F.3d 610, 612-13 (5th Cir. 1994) (holding that limited designation of agency in work sharing agreement is sufficient to allow filing with EEOC to satisfy filing requirements with Texas Commission on Human Rights). In rendering performance under the work sharing agreement and contract, the department is supervised by the EEOC's contract monitor, and the tasks that the department performs and the manner in which it performs them are limited by the terms of the EEOC-drafted contract and by EEOC rules and guidelines. Under these circumstances, we agree with your assertion that, under accepted agency principles, the department acts as the EEOC's agent in processing complaints on behalf of the EEOC. See Johnson v. Owens, 629 S.W.2d 873, 875 (Tex. App.-Fort Worth 1982, writ ref'd n.r.e.) ("An essential element of proof of agency is that the alleged principal has both the right to assign the agent's task and to control the means and details of the process by which the agent will accomplish the task."). We also agree that, as an agent of the EEOC, the department is bound by section 2000e-5(b) of Title 42 and may not make public charges of discrimination that it handles on the EEOC's behalf. See 42U.S.C.2000e-5(b); see also McMillan v. Computer Translations Systems & Support, 66 S.W.3d 477, 481 (Tex. App.-Dallas 2001, no pet.) (under principles of agency and contract law, fact that principal is bound can serve to bind agent as well). We therefore find that the requested information must be withheld pursuant to section 552.101 of the Government Code as information that is confidential by law. This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances. This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. § 552.321(a). If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. § 552.3215(e). If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.-Austin 1992, no writ). Please remember that under the Act the release of information triggers certain procedures for costs and charges to the requestor. If records are released in compliance with this ruling, be sure that all charges for the information are at or below the legal amounts. Questions or complaints about over-charging must be directed to Hadassah Schloss at the Texas Building and Procurement Commission at 512/475-2497. If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. We note that a third party may challenge this ruling by filing suit seeking to withhold information from a requestor. Gov't Code § 552.325. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling. Sincerely, Denis C. McElroy
c: Ms. Gina Tyler
Footnotes 1. We assume that the "representative sample" of records submitted to this office is truly representative of the requested records as a whole. See Open Records Decision Nos. 499 (1988), 497 (1988). This open records letter does not reach, and therefore does not authorize the withholding of, any other requested records to the extent that those records contain substantially different types of information than that submitted to this office. POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US |