Did confidential employment-discrimination complaint information stay confidential when the Texas Commission on Human Rights referred it to a local commission?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-275: Human Rights Complaint Records
Plain-English summary
The Texas Commission on Human Rights asked whether article 5221k's confidentiality provision followed employment-discrimination complaint information when the state commission referred a complaint to a local human rights commission. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
JM-275 concluded that information protected by section 8.02(a) remained confidential after an authorized referral under article 5221k. The state-local transfer did not destroy the information's protected status because the statute expressly authorized referrals and the state commission continued to supervise referred complaints. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
The result was limited to the state referral system. Complaints made solely under a local ordinance did not receive section 8.02(a)'s protection through article 5221k; any protection for those local records had to come from an exception in the Texas Open Records Act. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
The opinion also limited confidentiality to information actually covered by section 8.02(a), meaning information obtained by the state commission under its section 6.01 authority. Other information depended on separate public-records exceptions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
Currency note
This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Did a state referral make protected complaint information public?
No. JM-275 said section 8.02(a)-protected information retained its confidential character when the Texas commission transferred it to a local commission under section 4.04. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
Did section 8.02(a) directly regulate local commissions?
No. The opinion said the statutory term “commission” referred to the Texas Commission on Human Rights, not a local commission. Confidentiality continued in referrals because of the authorized state-local relationship and continuing state supervision. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
Were complaints filed only under a local ordinance covered by this holding?
No. Such complaints did not involve the article 5221k referral system, so any nondisclosure rule had to come from the Texas Open Records Act itself. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
Was every record about a discrimination complaint confidential?
No. JM-275 confined the statutory protection to information obtained under section 6.01 and covered by section 8.02(a). Other records required a separate Open Records Act basis for withholding. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
Could protected information be used in an article 5221k proceeding?
Yes. Section 8.02(a), as quoted in the opinion, allowed disclosure when necessary to conduct a proceeding under the act. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
Background and statutory framework
Article 5221k created two kinds of local activity. Section 4.01 authorized local ordinances against unlawful employment practices, while sections 4.03 and 4.04 provided for referrals from the state commission to local commissions. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
Section 8.02(a) barred a state commission officer or employee from making public information obtained under section 6.01, except as needed for a proceeding under article 5221k. The Texas Open Records Act recognized information made confidential by statute as an exception to required disclosure. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
JM-275 relied on Attorney General Opinions H-917 and H-242 for the principle that confidential information could pass between state agencies without losing confidentiality. It cited Attorney General Opinion H-636 for a similar transfer to county and municipal governments acting as quasi-agencies of the state. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
Citations and references
- Article 5221k, V.T.C.S., sections 2.01, 4.01, 4.03, 4.04, 6.01, and 8.02(a)
- Texas Open Records Act, V.T.C.S. article 6252-17a
- Attorney General Opinion JM-228 (1984)
- Attorney General Opinions H-917 (1976), H-242 (1974), and H-636 (1976)
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0275
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0275.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
December 28, 1984
Mr. Bill Hale
Executive Director
Texas Commission on Human Rights
P. O. Box 13493, Capitol Station
Austin, Texas 78711
Opinion No. JM-275
Re: Whether the confidentiality provisions of article 5221k, V.T.C.S., apply to local human relations commissions
Dear Mr. Hale:
Article 5221k, V.T.C.S., authorizes referral actions between the Texas Commission on Human Rights and local human rights commissions with regard to certain employment discrimination complaints. See §4.01 et seq. In light of this unique state-local working relationship, you ask whether the act's confidentiality provision applies to complaints referred by the state commission to local commissions.
The confidentiality provision of article 5221k protects certain complaint-related information which the Texas Open Records Act, V.T.C.S. art. 6252-17a, might otherwise require be disclosed. This provision, section 8.02(a), provides that
[a]n officer or employee of the commission may not make public any information obtained by the commission under its authority under Section 6.01 of this Act except as necessary to the conduct of a proceeding under this Act.
The Open Records Act recognizes statutory confidentiality provisions such as section 8.02(a) as exceptions to required public disclosure. V.T.C.S. art. 6252-17a, §3(a)(1). Consequently, when information which falls within section 8.02(a) is held by the state commission, it may not be disclosed. Section 8.02(a) prohibits “[a]n officer or employee of the commission” from disclosing certain information. “Commission” in article 5221k refers to the Texas Commission on Human Rights. See §2.01(2); compare §2.01(9). The provision does not apply directly to local commissions. Nevertheless, you ask whether this information retains its confidential character when it is transferred from the state commission to a local commission.
A preliminary clarification of the kind of local action in question is necessary. Article 5221k provides for two distinct methods that political subdivisions may employ to promote freedom from employment discrimination. Attorney General Opinion JM-228 (1984). Section 4.01 of the act authorizes the adoption and enforcement of local ordinances that prohibit practices designated as unlawful under article 5221k or under other laws. This type of local action does not involve a system of referrals from the state commission. Any protection from disclosure of information related to employment discrimination complaints which are made solely pursuant to local ordinances must stem from the exceptions found within the Texas Open Records Act.
The second type of local action provided for in article 5221k involves referrals from the state commission. See §§4.03(5), 4.04(a). These actions are guided by article 5221k, rather than by the provisions of a local ordinance. See JM-228 (1984). You suggest that section 8.02(a) protects information transferred from the state commission to local commissions in these referral actions.
We agree with your suggestion that, because of the authorized state-local interaction, the state-level protection of section 8.02 is not lost when protected information is transferred from the state commission to a local commission pursuant to sections 4.03 and 4.04 of article 5221k. This conclusion results from the express authorization for such referrals and from the continuing supervision the state commission exercises over the referred complaints. See §4.04(b). Numerous attorney general opinions indicate that confidential information may be transferred from one state agency to another state agency without destroying the confidential character of the information. See, e.g., Attorney General Opinions H-917 (1976); H-242 (1974). Similarly, confidential information may be disclosed to county and municipal governments when they act as quasi-agencies of the state. Attorney General Opinion H-636 (1976).
Nevertheless, the protection of article 5221k from public disclosure extends only to the information covered by section 8.02(a). Section 8.02(a) grants confidential status, except as necessary to the conduct of a proceeding under article 5221k, to “any information obtained by the commission under its authority under Section 6.01 of this Act. . . .” The confidentiality of other information would depend upon specific provisions of the Open Records Act. Section 6.01 deals with state commission actions to encourage voluntary resolution of complaints. Persons who have initiated actions in court or who have actions pending before an administrative agency may not file a complaint with respect to the same grievance under section 6.01. Consequently, the scope of the confidentiality protection of section 8.02(a) is limited.
SUMMARY
Information regarding employment discrimination complaints which is protected by section 8.02(a) of article 5221k retains its confidential character when it is transferred from the Texas Commission on Human Rights to a local human rights commission pursuant to section 4.04 of article 5221k.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Jennifer Riggs
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
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