August 20, 2007

Ms. Margo M. Kaiser
Staff Attorney
Texas Workforce Commission
101 East 15^th Street
Austin, Texas 78778-0001

OR2007-10756

Dear Ms. Kaiser:

You ask whether certain information is subject to required public disclosure under the Public Information Act (the "Act"), chapter 552 of the Government Code. Your request was assigned ID# 286858.

The Texas Workforce Commission (the "commission") received a request for the claim file of a named individual. You state that you will redact social security numbers pursuant to section 552.147 of the Government Code. ⁽¹⁾ You claim that the requested information is excepted from disclosure under sections 552.101, 552.103, and 552.111 of the Government Code. We have considered the exceptions you claim and reviewed the submitted representative sample of information. ⁽²⁾

You state that some of the submitted information consists of confidential unemployment insurance claim information. Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. This section encompasses information protected by other statutes. You claim that the submitted unemployment insurance claim information is confidential under federal regulations. We note that the regulations found at section 603 of title 20 of the Code of Federal Regulations send a clear message that "claim information" in the files of a state unemployment compensation agency is to be disclosed only to a "receiving agency," as defined in the regulations, or to other specified parties. See 20 C.F.R. §§ 603.1 et seq.; see also Open Records Decision No. 476 at 4 (1987). Otherwise, pursuant to section 603.7 of title 20 of the Code of Federal Regulations, state unemployment compensation agencies, such as the commission, must protect the confidentiality of claim information. "Claim information" means information regarding whether an individual is receiving, has received, or has applied for unemployment compensation, as well as "[a]ny other information contained in the records of the State employment compensation agency which is needed by the requesting agency to verify eligibility for, and the amount of, benefits." 20 C.F.R. § 603.2(c)(1), (5). We also note that the names of employers and employees who file unemployment compensation appeals fall within the definition of "claim information" and that the federal regulations prohibit the commission from disclosing this information. See ORD 476 at 4.

The federal Social Security Act requires states to comply with the directives of the United States Department of Labor (the "department") in administering state unemployment insurance ("UI") programs, and section 603.5 specifies the conditions under which such claim information may be released. See 20 C.F.R. § 603.5 (lists permissible disclosures of confidential claim information). You state that the submitted records include UI claim information. We note, however, that the requestor is an attorney who represents a party to a claim. Therefore, we conclude that although the unemployment insurance claim information at issue is confidential, it must be released if any of the release provisions in part 603 of title 20 of the Code of Federal Regulations apply. See 20 C.F.R. § 603.5(d)(1) (allowing disclosure under certain circumstances on basis of "informed consent" to agent or attorney of individual or employer). ⁽³⁾ Otherwise, the commission must withhold the submitted claim information under section 552.101 of the Government Code in conjunction with federal law. ⁽⁴⁾

Next we address your arguments for withholding the submitted discrimination case information, which you claim is subject to the federal Freedom of Information Act ("FOIA"). Section 2000e-5(b) of title 42 of the United States Code states in relevant part the following:

Whenever a charge is filed by or on behalf of a person claiming to be aggrieved . . . alleging that an employer . . . as engaged in an unlawful employment practice, the [Equal Employment Opportunity Commission (the "EEOC")] shall serve a notice of the charge . . . on such employer . . ., and shall make an investigation thereof . . . Charges shall not be made public by the [EEOC].

42 U.S.C. § 2000e-5(b). The EEOC is authorized by statute to utilize the services of state fair employment practices agencies to assist in meeting its statutory mandate to enforce laws prohibiting discrimination. See id. § 2000e-4(g)(1). The commission informs us that it has a contract with the EEOC to investigate claims of employment discrimination allegations. The commission asserts that under the terms of this contract, "access to charge and complaint files is governed by FOIA, including the exceptions to disclosure found in the FOIA." The commission claims that because the EEOC would withhold the submitted information under section 552(b)(5) of title 5 of the United States Code, the commission should also withhold this information on this basis. We note, however, that FOIA is applicable to information held by an agency of the federal government. See 5 U.S.C. § 551(1). The information at issue was created and is maintained by the commission, which is subject to the state laws of Texas. See Attorney General Opinion MW-95 (1979) (FOIA exceptions apply to federal agencies, not to state agencies); Open Records Decision Nos. 496 (1988), 124 (1976); see also Open Records Decision No. 561 at 7 n. 3 (1990) (federal authorities may apply confidentiality principles found in FOIA differently from way in which such principles are applied under Texas open records law); Davidson v. Georgia, 622 F.2d 895, 897 (5th Cir. 1980) (state governments are not subject to FOIA). Furthermore, this office has stated in numerous opinions that information in the possession of a governmental body of the State of Texas is not confidential or excepted from disclosure merely because the same information is or would be confidential in the hands of a federal agency. See, e.g., Attorney General Opinion MW-95 (1979) (neither FOIA nor federal Privacy Act of 1974 applies to records held by state or local governmental bodies in Texas); Open Records Decision No.124 (1976) (fact that information held by federal agency is excepted by FOIA does not necessarily mean that same information is excepted under the Act when held by Texas governmental body). You do not cite to any federal law, nor are we aware of any such law, that would pre-empt the applicability of the Act and allow the EEOC to make FOIA applicable to information created and maintained by a state agency. See Attorney General Opinion JM-830 (1987) (EEOC lacks authority to require a state agency to ignore state statutes). Thus, you have not shown how the contract between the EEOC and the commission makes FOIA applicable to the commission in this instance. Accordingly, the commission may not withhold the submitted information pursuant to the exceptions available under FOIA.

Section 552.101 of the Government Code excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." Gov't Code § 552.101. Pursuant to section 21.204 of the Labor Code, the commission may investigate a complaint of an unlawful employment practice. See Lab. Code § 21.204; see also id. §§ 21.0015 (powers of Commission on Human Rights under Labor Code chapter 21 transferred to commission's civil rights division), 21.201. Section 21.304 of the Labor Code provides that "[a]n officer or employee of the commission may not disclose to the public information obtained by the commission under Section 21.204 except as necessary to the conduct of a proceeding under this chapter." Id. § 21.304.

You state that the submitted discrimination case information pertains to a complaint of unlawful employment practices investigated by the commission under section 21.204 and on behalf of the EEOC. We, therefore, agree that the submitted information is confidential under section 21.304 of the Labor Code. However, you inform us that the requestor seeks the information as an attorney representing a party to the complaint. Section 21.305 of the Labor Code concerns the release of commission records to a party of a complaint filed under section 21.201 and provides the following:

(a) The commission shall adopt rules allowing a party to a complaint filed under Section 21.201 reasonable access to commission records relating to the complaint.

(b) Unless the complaint is resolved through a voluntary settlement or conciliation, on the written request of a party the executive director shall allow the party access to the commission records:

(1) after the final action of the commission; or

(2) if a civil action relating to the complaint is filed in federal court alleging a violation of federal law.

Id. § 21.305. At section 819.92 of title 40 of the Texas Administrative Code, the commission has adopted rules that govern access to its records by a party to a complaint. Section 819.92 provides the following:

(a) Pursuant to Texas Labor Code § 21.304 and § 21.305, [the commission] shall, on written request of a party to a perfected complaint under Texas Labor Code § 21.201, allow the party access to [the commission's] records, unless the perfected complaint has been resolved through a voluntary settlement or conciliation agreement:

(1) following the final action of [the commission]; or

(2) if a party to the perfected complaint or the party's attorney certifies in writing that a civil action relating to the perfected complaint is pending in federal court alleging a violation of federal law.

(b) Pursuant to the authority granted the [c]ommission in Texas Labor Code § 21.305, reasonable access shall not include access to the following:

(1) information excepted from required disclosure under Texas Government Code, chapter 552; or

(2) investigator notes.

32 Tex. Reg. 553-4 (2007) (to be codified as an amendment to 40 T.A.C. § 819.92). ⁽⁵⁾ The commission states that the "purpose of the rule amendment is to clarify in rule the [c]ommission's determination of what materials are available to the parties in a civil rights matter and what materials are beyond what would constitute reasonable access to the file." ⁽⁶⁾ Id. at 553. A governmental body must have statutory authority to promulgate a rule. See Railroad Comm'n v ARCO Oil, 876 S.W.2d 473 (Tex. App.--Austin 1994, writ denied). A governmental body has no authority to adopt a rule that is inconsistent with existing state law. Id.; see also Edgewood Indep. Sch. Dist. v. Meno, 917 S.W.2d 717, 750 (Tex. 1995); Attorney General Opinion GA-497 (2006) (in deciding whether governmental body has exceeded its rule making powers, determinative factor is whether provisions of rule are in harmony with general objectives of statute at issue).

As noted above, section 21.305 of the Labor Code requires the release of commission complaint records to a party to a complaint under certain circumstances. See Lab. Code § 21.305. In correspondence to our office, you contend that under section 819.92(b) of the rule, the Act's exceptions apply to withhold information in a commission file even when requested by a party to the complaint. See 40 T.A.C. § 819.92(b). Section 21.305 of the Labor Code states that the commission "shall allow the party access to the commission's records." See Lab. Code § 21.305 (emphasis added). The commission's rule in subsection 819.92(b) operates as a denial of access to complaint information provided by subsection 819.92(a). See 40 T.A.C. § 819.92. Further, the rule conflicts with the mandated party access provided by section 21.305 of the Labor Code. The commission submits no arguments or explanation to resolve this conflict and submits no arguments to support its conclusion that section 21.305's grant of authority to promulgate rules regarding reasonable access permits the commission to deny party access entirely. Being unable to resolve this conflict, we cannot find that rule 819.92(b) operates in harmony with the general objectives of section 21.305 of the Labor Code. Thus, we must make our determination under section 21.305 of the Labor Code. See Edgewood, 917 S.W.2d at 750.

The commission has completed its investigation of the complaint at issue, taken final action, and the complaint was not resolved through voluntary settlement or conciliation agreement. Thus, pursuant to sections 21.305 and 819.92(a), the requestor has a right of access to the commission's records relating to the complaint.

Turning to your claims under sections 552.103 and 552.111, we note that this office has long held that information that is specifically made public by statute may not be withheld from the public under any of the exceptions to public disclosure under the Act. See, e.g., Open Records Decision Nos. 544 (1990), 378 (1983), 161 (1977), 146 (1976). However, the commission seeks to withhold the submitted information under sections 552.103 and 552.111. In support of your section 552.111 contention, you claim that, in Mace v. EEOC, 37 F. Supp.2d 1144 (E.D. Mo. 1999), a federal court recognized a similar exception by finding that "the EEOC could withhold an investigator's memorandum as predecisional under [FOIA] as part of the deliberative process." In the Mace decision, however, there was no access provision analogous to sections 21.305 and 819.92. The court did not have to decide whether the EEOC may withhold the document under section 552(b)(5) of title 5 of the United States Code despite the applicability of an access provision. We, therefore, conclude that the present case is distinguishable from the court's decision in Mace. Furthermore, in Open Records Decision No. 534 (1989), this office examined whether the statutory predecessor to section 21.304 of the Labor Code protected from disclosure the Commission on Human Rights' investigative files into discrimination charges filed with the EEOC. We stated that, while the statutory predecessor to section 21.304 of the Labor Code made all information collected or created by the Commission on Human Rights during its investigation of a complaint confidential, "[t]his does not mean, however, that the commission is authorized to withhold the information from the parties subject to the investigation." See Open Records Decision No. 534 at 7 (1989). Therefore, we concluded that the release provision grants a special right of access to a party to a complaint. Thus, because access to the commission's records created under section 21.201 is governed by sections 21.305 and 819.92, we determine that the submitted information may not be withheld by the commission under sections 552.103 and 552.111 of the Government Code.

Next, the submitted information includes information pertaining to mediation and conciliation efforts. You raise section 21.207(b) of the Labor Code for this information. Section 552.101 also encompasses 21.207(b) of the Labor Code. Section 21.207(b) provides in part:

(b) Without the written consent of the complainant and respondent, the commission, its executive director, or its other officers or employees may not disclose to the public information about the efforts in a particular case to resolve an alleged discriminatory practice by conference, conciliation, or persuasion, regardless of whether there is a determination of reasonable cause.

Lab. Code § 21.207(b). You inform us that portions of the submitted information relates to efforts at mediation or conciliation between the parties to the dispute, and you state that the commission has not received the written consent of both parties to release the submitted information at issue. Based on your representations and our review, we determine that the information you have marked concerning efforts at mediation or conciliation is confidential pursuant to section 21.207(b) of the Labor Code and must be withheld under section 552.101 of the Government Code.

In summary, if none of the release provisions in part 603 of title 20 of the Code of Federal Regulations apply, then the commission must withhold the submitted claim information under section 552.101 of the Government Code in conjunction with federal law. You must withhold the conciliation and mediation information you marked under section 552.101 of the Government Code in conjunction with section 21.107 of the Labor Code. You must release the remaining information to the requestor.

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, upon receiving this ruling, the governmental body will either release the public records promptly pursuant to section 552.221(a) of the Government Code or file a lawsuit challenging this ruling pursuant to section 552.324 of the Government Code. If the governmental body fails to do one of these things, 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 Dep't of Pub. 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 Office of the Attorney General 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. 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,

Amy L.S. Shipp

Assistant Attorney General

Open Records Division

ALS/mcf

Ref: ID# 286858

Enc. Submitted documents

c: Mr. John D. Warren

Bickerstaff, Heath, Pollan & Caroom, L.L.P.

816 Congress Avenue, Suite 1700

Austin, Texas 78701

(w/o enclosures)

Footnotes

1. We note that section 552.147(b) of the Government Code authorizes a governmental body to redact a living person's social security number from public release without the necessity of requesting a decision from this office under the Act.

2. 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.

3. We note that you assert that the unemployment insurance claim information at issue is excepted from disclosure under section 552.103 of the Government Code. However, the requestor's right of access under federal law, if applicable, would preempt the protection afforded by section 552.103. See U.S. Const. Art. VI, cl. 2 (Supremacy Clause); Delta Airlines, Inc. v. Black, 116 S.W.3d 745, 748 (Tex. 2003) (discussing federal preemption of state law).

4. As our ruling under section 552.101is dispositive, we need not address your argument under section 552.103 for this information.

5. The commission states that the amended rule was adopted pursuant to sections 301.0015 and 302.002(d) of the Labor Code, "which provide the [c]ommission with the authority to adopt, amend, or repeal such rules as it deems necessary for the effective administration of [commission] services and activities." 32 Tex. Reg. 554. The commission also states that section 21.305 of the Labor Code "provides the [c]ommission with the authority to adopt rules allowing a party to a complaint filed under § 21.201 reasonable access to [c]ommission records relating to the complaint." Id.

6. The commission refers to the rule alternatively as sections 819.70 and 819.79, neither of which exists.

POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL: (512) 463-2100 WEB: WWW.OAG.STATE.TX.US
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