Case Information

*1 The Attorney General of Texas May 5. 1982

MARK WHITE

Attorney General

Honorable W. S. McBeath. Opinion No. NW-464 Supreme Court Buildin Administrator P. 0. BOX 12549 Texas Alcoholic Beverage Commission Re: Whether information Austin, TX. 78711- 2542 P. 0. Box 13127, Capitol Station deemed confidential under 512/4752x)1 Austin, Texas 78711 section 5.48 of the Alcoholic Telex 9101974-1367 Beverage Code may be turned Telecopier 5W475.0255

over to United States Justice Department pursuant to 1607 Main St., Suite 1400 Antitrust Civil Process Act Dallas, TX. 75201-4709 2141742-5344 Dear Mr. McBeath: 4S24 Alberta Ave., Suite 180 The federal Antitrust Civil Process Act, 15 U.S.C. section 1311 El Paso. TX. 78905-2793 et seq., the Open Records Act, article 6252-17a. V.T.C.S., and section 91515333494 5.48 of the Alcoholic Beverage Code are at issue in your request for our opinion. You ask: 1220 Dallas Ave., Suite 202 Houston. TX. 77002b9SS Do the provisions of the Antitrust Civil 713fS5cut5S6 Process Act empower the Justice Department to

obtain through a civil investigative demand SO9 Broadway. Suite 312 material deemed confidential by section 5.48 of Lubbock. TX. 79401-3479 the Alcoholic Beverage Code and seemingly exempt 9061747-5239 from disclosure under section 3(a)(l) of the Open

Records Act? 4309 N. Tenth, Suite S McAllen, TX. 79501-1695

Section 5.48 of the Alcoholic Beverage Code provides as follows: 512lSS2-4547

(a) 'Private records,' as used in this section, meane all records of a permittee. 200 Main PIam. Suite 4w licensee. or other person other than the name, San Antonio. TX: 78205-2797 proposed location, and type of permit or license 51212254191

sought in an application for an, original or renewal permit or license, or in a periodic report An Equal OpportunityI relating to the importation, distribution, or sale Affirmative Action Employer of ,alcoholic beverages required by the commission

to be regularly filed by a permittee or licensee. (b) The private records of a permittee, licensee, or other person that are required or obtained by the commission or its agents, in connection with an investigation or otherwise, are *2 Mr. W. S. McBeath - Page 2 '(MJ-464)

privileged unless introduced In evidence in a hearing before the commission or before a court in this state or the United States.

Section 3(a)(l) of the Open Records Act excepts from required public disclosure "information deemed confidential by law."

In the Antitrust Civil Process Act, Congress provided the Antitrust Division of the Department of Justice with compulsory pre-complaint civil investigative process. The principal reason for the enactment of the act was to cure a major problem which the Department of Justice had encountered in its efforts to enforce the antitrust laws: the lack of compulsory process ,to obtain evidence during investigations where civil proceedings were contemplated from the outset. Report of Attorney General's National Committee to Study the Antitrust Laws 343-45 (1955). As the committee report pointed out, inadequate investigative tools often led to incomplete investigations that in turn resulted in civil proceedings that a more careful search and study would have shown were.unnecesssry.

Section 1312(a) of the act provides in relevant part that: Whenever the Attorney General, or the Assistant Attorney General in charge of the Antitrust Division of the Department of Justice, has reason to believe that any person may be in possession, custody, or control of any documentary material, or may have any information, relevant to a civil antitrust investigation, he, may. prior to the institution of a civil or criminal proceeding thereon, issue in writing, and cause to be served upon such person, a civil investigative demand requiring such person to produce such documentary material for inspection end copying or reproduction....

wPerson" is defined in section 1311(f) as “any natural person, partnership, corporation, association, or other legal entity, including any person acting under color or authority of State law."

Couched in different .language, your question is essentially as follows:

&lust a state agency furnish information requested by the Justice Department pursuant to a civil investigative demand even though the information is confidential under state law?

..-: . Mr. W. S. McBeath - Page 3 (MW-464)

It is beyond cavil that a state may not retard, impede, burden or otherwise control the operation of a constitutional law enacted by Congress. See, e.g., Perez V. Campbell, 402 U.S. 637 (1971); Nash v. Florida Industrial Commission, 389 U.S. 235 (1967). This is true even where, in nassinn its law. the state had some ouroose in mind other than frustrationof federal goals. Peres v. Campbeil. supra.

The constitutionality of civil investigative demands issued under the Antitrust Civil Process Act has been upheld. See, e.g ., Hyster Company v. Unlted States, 338 F.2d 183 (9th Cir. 1964); Petition of Gold Bond Stamp Company, 221 F.Supp. 391 (D. Minn. ,1963). aff'd, 325 F.2d 1018 (8th Cir. 1964). Unquestionably, civil investigative demands serve a legitimate federal purpose: they enable the Justice Department to investigate much ‘more effectively suspected violations of the federal antitrust laws.

In our opinion, to conclude that the Alcoholic Beverage Commission may refuse to comply with a civil investigative demand on the ground that the material sought is confidential under Texas law 16. in effect. to sanction the notion that validly enacted federal legislation must yield where it clashes with state legislation. Such a conclusion is completely at odds with the concepts underlying the supremacy' clause of the federal Constitution.. United States Constitution article VI, clause 2. This clause, as we'have noted, prohibits states from erecting barriers which hinder or prevent the accomplishment of permissible congressional goals.

If material is to be regarded as beyond the reach of a civil investigative demand, it must be because the federal act itself places it there. See 15 U.S.C. 11312(c). We therefore answer your question in the affirmative.

SUMMARY . The Alcoholic Beverage Commission may not withhold information which is the subject of a civil investigative demand issued pursuant to the Antitrust Civil Process Act, 15 U.S.C. section 1311 et seq., on the grouqd that the information is confidential under section 3(a)(l) of the Open Records Act and article 5.48 of the Alcoholic Beverage Code.

Attorney General of Texas *4 Mr. W. S. McBeath - Page'4 (?lW-464) . . JOHN W. FAINTER, JR.

First Assistant Attorney General

RICHARD E. GRAY III

Executive Assistant Attorney General

Prepared by Jon Bible

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

Susan L. Garrison, Chairman

Jon Bible

Rick Gilpin

Patricia Hinojosa

Jim Moellinger

James V. Sylvester