Untitled Texas Attorney General Opinion ( 1943 )

HonorableJno. '4.McBdama, opinion Ho. o-5134 comiss ioner Dapertmqmtof Banking Re: Whether or not reports,docu- Austin, Texaa ments, instruments,or infor- mation in possessionof ,tbe:~,~ BankingCommissionerof TV&& with respectto loan and bro- kerage companiesdoing busf?,::: ness in Texas are privileged Dear ?kr.&Adams: matters. Yom request for,an opinionupon the above-captioned subject matter is as follows: “A suit has baen instituted>y the Securitiesand Exchange CommissionagainstInvestorsSyndicateof America,Inc., and Investors Mutual, Inc., in the FederalCourt at Mime&3lbs, Minnesota. The exact nature of the chargescontainedin the complainthave not been communicatedto this Department. Representatives of the Securitiesand ExchangeConamission have presentedthemselvesto this officerequesting certain informationrelatingto the businessof these concernswithin this State. These Representatives have requestedamwers to the following: "1. Number of Investorsin Texas holdingdebenturesissuedby Investors Syndicate. "2. The amount of oUtstandi ), the publicationby the corporationof certain statements,(Sec.&), a submleaionby the corporationto the Banking Commissionerfor apqoval certaindepositsof securitiesfor its bonds, notes, certificates,debentures,and other obligations,and shall sub- mit to the bankingCommissionerfor his approvalspecimencopies of such bonds, notes, certificates,debentures,or other obligations,to be offeredfor sale to the public, (Sec.7), and requiresthe corporation's officers,,directors,employeesand agents to executecertainfidelity bon&, (Sec. 3). The variousprovisionaof the Act are made to apply to foreign corporationshaving permissionto do businessin Texas, (Sec.,10). Wow, the statute,vhile authorizingthe bankingCommissioner to exam&e or cause to be examinedsuch corporations, doas not in any- wise deal with the questionof the privilegeof such examiner'sreports. There is no statute,so far as we have been able to discover,that bears upon the privilegeof examiner'sreports,or upon the other state- mants, instrumentsor informationmentionedby you. So that, the matter HonorableJno. 8. McAdams,page 3 (o-5134) must be determinedaccordingto generallaw, and in the light of public policy. In the absenceof statute--theauthoritativepublic policyof the State--nopublic officershouldat any time do any act that would be harmfulto the public interests. Such officer,therefore,is always clothedwith a certaindiscretionin such mattersas we are considering. Where no statutesupervenes,and where no public interestcould be pre- judiciallyaffected,there is no reason for denyingthe right of the public to inspectthe records,files, documents,and the like archives of publicofficesor departments.Where there is reasonableprobability of injuryor hurt to the public interests,however,the custodianof such archivesshould deny the right of public inspection. We discussedthese generalprinciplesin OpinionNo. 0-4610, addressedto you, concerninga State bank in liquidation. We also discussedthe principlesapplicableto situations where therewere not pertinentstatutesin OpinionsNos. o-2044, O-3755 and 0-3987,copiesof which opinionswe are handingyou herewith. Article 3722 of the RevisedCivil Statutesmakas it the duty of certainpublic officers,includingthe BankingCommissioner,to 'fur- nish any person applyingfor the same with a copy of any paper, document or record in their offices,and with certificatesunder seal, certifying to any fact containedin the papers,documentsor recordsof their office-.? This Article,however,is to be consideredin the light of what wa have said with respectto privilegedinstrumentsor information.In other words, the statutoryand other --tablishedrules of privilega,and this statuteof evidence(Art. 3722) must be consideredtogetherand not as being in anywisecontradictory or inconsistent;each must be respected. In consideringthe questionof the public interestsinvolvedin your presentsituation,.youwill of coursebear in mind that the inquiry and requestcome from a departmentof the Governmentitself. You are theseforerespectfullyadvisedthat it is entirely within your officialdisbretionto supply the informationrequasted,or, if in that disoretionyou th'nk it would be inimitableto the public interests;to deny such request. If you should exerciseyour discretion againstgrantingthe inspection,the matterwould be subjectto judicial review for any abuse of such discretion. Very truly yours APPROVEDJCL 20, 1943 All'ORWEY cTEmRALOF TEXAS CrooverSellers BY /s/ Ocie Speer @ie Speer &lET ASSISTANT Assistant AlTORNEYCWERAL CS-WR:br EWCCLOSWE