Can a state licensing board withhold confidential records from a federal EEOC discrimination investigation?

Plain-English summary

The Texas State Board of Medical Examiners asked whether it could release to the federal Equal Employment Opportunity Commission records that state law treats as confidential. The EEOC had asked for files on every applicant the Board had denied a license between January 1, 1983 and September 9, 1999, apparently in connection with a charge that the Board had discriminated against applicants with disabilities under the Americans with Disabilities Act. Section 164.007 of the Occupations Code makes the Board's investigative files on license applicants "privileged and confidential" and not subject to discovery, subpoena, or other legal compulsion for release to anyone outside the Board.

The Attorney General concluded that federal law overrides that confidentiality here. The EEOC is authorized to investigate disability-discrimination charges against public entities, including licensing boards, and federal statute gives it the right to access and copy evidence relevant to a charge under investigation. When a state confidentiality statute would frustrate that federal investigation, the state statute is preempted. A federal court in the Eastern District of Texas had already held, in EEOC v. City of Orange, that a Texas statute is preempted to the extent it thwarts an EEOC investigation. Applying that reasoning, the opinion concluded that to the extent section 164.007 would require the Board to withhold records material and relevant to the EEOC's investigation, it is preempted. The Board therefore not only could but had to turn the records over. The opinion added that the records do not lose their confidential character once disclosed to the EEOC, which is itself bound to keep them confidential except as needed to advance the investigation.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The Texas State Board of Medical Examiners (what the opinion held for it): The opinion held that the Board's section 164.007 confidentiality could not be used to refuse the EEOC's request, and that the Board had a federal-law duty to release records material and relevant to the EEOC's investigation, assuming the records related to a charge the EEOC was actually investigating.

State licensing agencies generally (what the opinion held for them): The opinion treated a public licensing board as a "public entity" subject to the ADA's anti-discrimination command and to the EEOC's investigative authority, and read a state confidentiality statute as preempted to the extent it would block that authority.

License applicants and complainants (what the opinion held for them): The opinion recognized the EEOC's right to obtain the Board's records in investigating a disability-discrimination charge, while noting that the records stay confidential in the EEOC's hands.

Common questions

Can a state agency refuse a federal EEOC records request by pointing to a state confidentiality law?
The opinion concluded it cannot, where the federal statute gives the EEOC a right to the records and the state law would thwart the investigation. In that situation the state confidentiality statute is preempted.

Did the Board have a choice about releasing the records?
No. The opinion concluded the Board "not only may, but must" release records material and relevant to the EEOC's investigation.

Do the records stop being confidential once the EEOC has them?
No. The opinion explained that information released to the EEOC keeps its confidential character, and the EEOC may not disclose it except as necessary to further the investigation.

Does this mean any outside requester can get confidential licensing files?
No. The opinion turned on the EEOC's specific federal statutory right to investigate discrimination charges. It did not open the files to the public or to ordinary requesters.

Background and statutory framework

No one may practice medicine in Texas without a license from the Board, and the Board investigates applicants to confirm eligibility under sections 155.001, 155.003, 164.051, and 164.052 of the Occupations Code. Section 164.007(c) makes the complaints, investigation files, and other investigative information the Board gathers on an applicant "privileged and confidential" and not subject to legal compulsion for release outside the Board. Later subsections, (f) through (h), set out narrow situations in which the Board may or must share investigative information with other licensing authorities or law-enforcement agencies; the opinion agreed those exceptions did not cover the EEOC's request.

On the federal side, the ADA, 42 U.S.C. §§ 12101-12213, forbids a public entity, including a public licensing board, from discriminating against a qualified individual with a disability in administering a licensing program (see 42 U.S.C. §§ 12132, 12133; 28 C.F.R. § 35.130(b)(6); Clark v. Virginia Bd. of Bar Exam'rs, 880 F. Supp. 430, 442 (E.D. Va. 1995)). The EEOC is authorized to investigate and enforce that prohibition and, under 42 U.S.C. § 2000e-8(a), has the right to access and copy evidence relevant to a charge under investigation. The U.S. Supreme Court in University of Pa. v. EEOC, 493 U.S. 182, 192 (1990) described this as a "right to obtain" information, not a mere license to seek it. The opinion relied on EEOC v. City of Orange, 905 F. Supp. 380, 382 (E.D. Tex. 1995), which held a Texas statute preempted to the extent it thwarts an EEOC investigation, and on EEOC v. County of Hennepin, 623 F. Supp. 29, 32 (D. Minn. 1985), CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 663 (1993), EEOC v. Shell Oil Co., 466 U.S. 54, 81 (1984), and EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 599 (1980). It also drew an analogy to its own prior reading of Government Code chapter 552 in ORD-650 (1996), which permits a state agency holding confidential information to transfer it to a federal agency when federal law requires disclosure.

Citations

Statutory provisions:

• Tex. Occ. Code Ann. §§ 155.001, 155.003(a), 164.007(c), (f), (g), (h), 164.051(a), 164.052(a) (Vernon 2000)
• 42 U.S.C. § 2000e-8(a), (e) (1994); 42 U.S.C. §§ 12101-12213, 12132, 12133; 29 U.S.C. § 794a(a) (1994); 28 C.F.R. § 35.130(b)(6) (1999)
• Tex. Gov't Code ch. 552

Cases and prior opinions:

• University of Pa. v. EEOC, 493 U.S. 182 (1990)
• EEOC v. City of Orange, 905 F. Supp. 380 (E.D. Tex. 1995)
• EEOC v. County of Hennepin, 623 F. Supp. 29 (D. Minn. 1985)
• EEOC v. Shell Oil Co., 466 U.S. 54 (1984)
• CSX Transp., Inc. v. Easterwood, 507 U.S. 658 (1993)
• Clark v. Virginia Bd. of Bar Exam'rs, 880 F. Supp. 430 (E.D. Va. 1995)
• EEOC v. Associated Dry Goods Corp., 449 U.S. 590 (1980)
• Tex. Att'y Gen. ORD-650 (1996)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0280
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2000/jc0280.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

JOHN CORNYN

September 6, 2000

F. M. (Skip) Langley, D.V.M., M.D., J.D.
Executive Director
Texas State Board of Medical Examiners
P.O. Box 2018
Austin, Texas 78768-2018

Opinion No. JC-0280

Re: Whether the Board of Medical Examiners may release to the Equal Employment Opportunity Commission information that is confidential under section 164.007 of the Occupations Code (RQ-0225-JC)

Dear Dr. Langley:

Under section 164.007 of the Occupations Code, negative or investigative information possessed by the Board of Medical Examiners relating to an application for license is "privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or its employees or agents." TEX. OCC. CODE ANN. § 164.007(c) (Vernon 2000). The federal Equal Employment Opportunity Commission ("EEOC"), which investigates charges of discrimination related to disability by a public entity, see 42 U.S.C. § 12133; see also 29 U.S.C. § 794a(a)(1); 42 U.S.C. § 2000e-5(b) (1994), is entitled to obtain information that relates to an investigation of a charge of discrimination. See 42 U.S.C. § 2000e-8(a); University of Pa. v. EEOC, 493 U.S. 182, 192 (1990). Your predecessor in office asked whether the State Board of Medical Examiners (the "Board") may release to the EEOC requested documents relating to all applications the Board has denied from January 1, 1983 through September 9, 1999.[1] Because current federal statutes that empower the EEOC to investigate a charge of discrimination preempt inconsistent state statutes, see EEOC v. City of Orange, 905 F. Supp. 380, 382 (E.D. Tex. 1995), we cannot construe section 164.007 of the Occupations Code to permit the Board to withhold from the EEOC information that relates to an EEOC investigation. Assuming that the requested information relates to a pending EEOC investigation, the Board not only may, but must, release the information to the EEOC.

Your predecessor indicated that the Board received two requests for information from the EEOC. See Request Letter, note 1. "The initial request pertained to the application of a physician who filed a complaint with the EEOC," he stated. Id. at 1. Although the Board did not believe that the EEOC was an entity to which the Board could release information under section 164.007 of the Occupations Code, the Board "released the complaining physician's application file based upon the EEOC's promise of confidentiality." Id. Since that time, "the EEOC has requested similar information for all applicants to whom licensure has been denied by the Board from January 1, 1983[,] through September 9, 1999." Id. It appears that the EEOC's request may arise from allegations of violations of the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1994 & Supp. 1997).[2] Your predecessor wished to know whether the Board may release the requested information to the EEOC. See Request Letter, supra note 1, at 2.

Your predecessor did not suggest that the requested information does not relate to a charge under investigation by the EEOC. We accordingly assume that the information is relevant for the purpose of 42 U.S.C. § 2000e-8 (1994).

No person may practice medicine in Texas without a license from the Board. See TEX. OCC. CODE ANN. § 155.001 (Vernon 2000). In certain circumstances, the Board may refuse to admit an applicant to the licensing examination or the Board may refuse to license an applicant. See id. § 164.051; see also id. § 155.003 ("General Eligibility Requirements"). For example, the Board may deny a license to an applicant who has submitted a false document to the Board in a license application or has taken or passed the examination using fraudulent means; who has been convicted of a felony or a misdemeanor involving moral turpitude; or who "is unable to practice medicine with reasonable skill and safety to patients because of mental or physical illness or chemical dependency." See id. §§ 164.051(a), .052(a). The Board apparently investigates an applicant to ensure that the applicant is eligible to be licensed. See id. § 155.003(a).

Documents that the Board compiles in investigating an applicant are confidential under state law:

Each complaint, adverse report, investigation file, other investigation report, and other investigative information in the possession of or received or gathered by the board or its employees or agents relating to a license holder, an application for license, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or its employees or agents involved in discipline of a license holder.

Id. § 164.007(c). Subsequent subsections of section 164.007 provide explicit exemptions, situations in which information may be released without violating subsection (c). Under subsection (f), the Board may disclose investigative information in the Board's possession "relating to discipline of a license holder" to a licensing authority in another state or jurisdiction or to a medical peer review committee. Id. § 164.007(f). The Board may, under subsection (g), release to the appropriate law-enforcement agency investigative information that tends to show that a crime has been committed. See id. § 164.007(g). And, under subsection (h), the Board must provide to an investigating law-enforcement agency relevant information regarding a license holder who is under criminal investigation. See id. § 164.007(h). Information that the Board discloses to an investigative agency "remains confidential and may not be disclosed by the investigating agency except as necessary to further the investigation." Id.

Your agency generally has presumed that the EEOC was not "considered to be among those entities identified in section[] 164.007(d) - (h)." Request Letter, supra note 1, at 1. While we do not consider whether the EEOC may be considered a "law enforcement agency" for the purposes of subsections (g) or (h), we agree that the circumstances around the request suggest that the exceptions do not apply.

A public licensing agency may not discriminate against a qualified individual with a disability on the basis of that disability in the administering of its licensing program. The Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1994 & Supp. 1997), forbids a public entity, including a public licensing board, to discriminate against any qualified individual with a disability. See 42 U.S.C. §§ 12132, 12133 (1994); 28 C.F.R. § 35.130(b)(6) (1999); Clark v. Virginia Bd. of Bar Exam'rs, 880 F. Supp. 430, 442 (E.D. Va. 1995) (stating that public entity is specifically prohibited from discriminating in administration of licensing program); Deborah Piltch, Jamie W. Katz, & Janine Valles, The Americans with Disabilities Act and Professional Licensing, 17 MENTAL & PHYSICAL DISABILITY L. REP. 556, 557 (1993); see also 29 U.S.C. § 794a(a) (1994); 42 U.S.C. § 2000e-5(b) (1994). This prohibition applies to a licensing program's administration. See 28 C.F.R. § 35.130(b)(6) (1999); Clark, 880 F. Supp. at 442.

The EEOC is authorized to investigate and enforce violations of this prohibition. See 42 U.S.C. § 12133; see also 29 U.S.C. § 794a; 42 U.S.C. § 2000e-5(b) (1994). In connection with an investigation, the EEOC "shall at all reasonable times have access to, for the purposes of examination, and the right to copy any evidence of any person being investigated or proceeded against that relates to unlawful employment practices and is relevant to the charge under investigation." Id. § 2000e-8(a).

The EEOC's right to access information that is material and relevant to an investigation preempts, to the extent the state statute "thwarts the EEOC's efforts to" investigate in a prompt and timely fashion, a state statute that deems particular documents confidential. EEOC v. City of Orange, 905 F. Supp. 381, 382 (E.D. Tex. 1995).

Even though Congress does not explicitly preempt a state law, the state law will be preempted if it would frustrate the scheme established by federal law. [Citations omitted.] The federal scheme concerning the EEOC involves the agency investigating allegations of discrimination. In conducting these investigations, the EEOC is entitled to have access to relevant evidence. The EEOC, moreover, is supposed to conduct its investigations expeditiously.

EEOC v. County of Hennepin, 623 F. Supp. 29, 32 (D. Minn. 1985); cf. University of Pa. v. EEOC, 493 U.S. 182, 194 (1990) (declining to require EEOC to demonstrate specific reason for disclosure of requested document, "beyond a showing of relevance," because such requirement would "'place a potent weapon in the hands of employers who have no interest in complying voluntarily with the [Civil Rights] Act, who wish instead to delay as long as possible investigations by the EEOC.' EEOC v. Shell Oil Co., 466 U.S. [54,] 81 (1984).").

Assuming that the information the EEOC has requested under 42 U.S.C. § 2000e-8(a) is material and relevant to an investigation, the EEOC has a right to obtain the information, which right cannot be compromised by a state statute, such as section 164.007 of the Occupations Code. See University of Pa., 493 U.S. at 192 (stating that EEOC has "right to obtain" information related to investigation, "not a mere license to seek it"). In EEOC v. City of Orange, the federal district court for the Eastern District of Texas specifically concluded that a Texas statute that thwarts an EEOC investigation is preempted to the extent it does so:

"Where a state statute conflicts with or frustrates federal law, the former must give way." CSX Transp., Inc. v. Easterwood, 507 U.S. 658, [663] (1993). Congress has designed an elaborate statutory scheme to combat discriminatory employment practices. As the federal agency with primary responsibility in this area, EEOC is empowered by statute to investigate charges of discrimination in employment. 42 U.S.C. § 2000e-5. Congress charged EEOC with conducting its investigations in a prompt and timely fashion. Id. § 2000e-8(a). EEOC's investigative efforts into the employment practices of entities subject to the provisions of the Texas Government Code would be delayed significantly if a court order were required to enforce every administrative subpoena served upon these entities. Accordingly, the Texas statute is preempted to the extent that it thwarts the EEOC's efforts to carry out the manifest intent of Congress.

City of Orange, 905 F. Supp. at 382. To the extent that section 164.007 of the Occupations Code requires the Board to withhold documents material and relevant to an EEOC investigation and requested in relation to the investigation, it thwarts Congress' intent and is preempted by federal law. See also id.

Consequently, we conclude not only that the Board may release the requested information to the EEOC, but that the Board must do so. Information released to the EEOC does not lose its confidential character. See 42 U.S.C. § 2000e-8(e) (1994); EEOC v. Associated Dry Goods Corp., 449 U.S. 590, 599 (1980); County of Hennepin, 623 F. Supp. at 33.

Analogously, this office has construed chapter 552 of the Government Code to permit a state agency that is holding confidential information to transfer the information to a federal agency if the law requires that the information be disclosed to the federal agency. See Tex. Att'y Gen. ORD-650 (1996) at 3-4. Because federal law provides the EEOC with a right to obtain information that relates to an investigation of alleged discriminatory practices, chapter 552 does not prohibit the Board from releasing the information to the EEOC.

SUMMARY

In accordance with a request from the Equal Employment Opportunity Commission ("EEOC"), the Board of Medical Examiners must transfer to the EEOC information that relates to a charge the EEOC is investigating under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (1994 & Supp. 1997). To the extent section 164.007 of the Occupations Code deems the information strictly confidential, section 164.007 is preempted by federal law. Compare TEX. OCC. CODE ANN. § 164.007(c) (Vernon 2000) with 42 U.S.C. § 2000e-8(a) (1994).

Very truly yours,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee

[1] See Letter from Bruce A. Levy, M.D., J.D., to Honorable John Cornyn, Texas Attorney General (Apr. 16, 2000) (on file with Opinion Committee) [hereinafter Request Letter].

[2] See Letter from Sidney B. Chesnin, Senior Trial Attorney, Dallas District Office, EEOC, to Kerstin E. Arnold, Assistant General Counsel, Texas State Board of Medical Examiners (July 23, 1999) (on file with Opinion Committee).