Intellectual Freedom Handbook: Confidentiality

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TLA CONFIDENTIALITY OF LIBRARY RECORDS

Until September, 1993 the privacy of library users was protected by a July, 1975 opinion from the Attorney General of Texas.

The confidentiality of library patrons in Texas is now protected by the Texas Open Records Act.

TEXAS LAW PROTECTS THE PRIVACY OF LIBRARY USERS

The records of library materials you borrow or use, the information you seek in the library, or the library services you use cannot be disclosed to anyone except:

  • As reasonably necessary for the operation of the library;
  • Persons authorized, in writing, by the individual named in the records; or
  • By order or subpoena of a district court, issued on a showing of good cause.

*As of September 1, 1993, the Texas Open Records Act protects the confidentiality of the records of any library system which is supported in whole or in part by public funds, that identify or serve to identify a person who requested, obtained, or used a library material or service.

By Armbrister SB. No. 360
TEXAS OPEN RECORDS ACT
  •  A BILL TO BE ENTITLED AN ACT

Note: This information predates provisions of The Patriot Act (2001; extension in 2011) that may affect the privacy of library users. See ALA resource.

EXAMPLES OF CONFIDENTIALITY VIOLATION

  • List of overdue books that a student has is sent to the homeroom teacher with name of the books included.
  • First and last names of children at story times on posters, name tags, etc.>
  • Users requesting name of books checked out by other family members.
  • Teachers requesting a list of students who have checked out materials on reserve.
  • Administrators requesting the reading records of students or users.
  • Leaving the name of the last user on the book card in non-computerized library systems.
  • Public sign-up sheets for use of online or CD ROM resources.

A MODEL LIBRARY CONFIDENTIALITY POLICY
[Public Library Administrators of North Texas]

Introduction

The freedom to read encourages responsible citizenship and open debate in the marketplace of ideas. The beneficial objectives of a free democratic society will be promoted if citizens have, and are assured that they have, the freedom to read and the opportunity to consider all types of information.

The First Amendment of the Constitution of the United States protects free speech and a free press. The Constitution of the State of Texas provides that "no law shall ever be passed curtailing the liberty of speech or of the press". A corollary of those constitutional guarantees is the corresponding freedom to read what is written, hear what is spoken, and view other forms of expression without fear of intrusion, intimidation or reprisal. The guarantee of privacy for readers, hearers and viewers will ensure this freedom.

The library is a central resource where information and differing points of view are available. Library users will be free to use the library and its materials and services without government, community, or individual interference.

This library policy is pursuant to Vernon's Annotated Civil Statutes, Article 6252-17a, referred herein as the Texas Open Records Act relating to making confidential a record that would identify a person who uses library services or materials.

Policy

Records of this library which identify or serve to identify a person who requests, obtains, or uses library materials or services are confidential and are excepted from required disclosure under the Texas Open Records Act.

Exceptions:
Such records generally may be disclosed only if:

  1. The library determines that disclosure is reasonably necessary to the operation of the library and the records are not confidential under other state or federal law.
  2. The records are released to the person to whom the information relates; or the person to whom the information relates has given permission, in writing, for the information to be released.
  3. The records are required under a valid court order or subpoena, as provided for under the provisions of the Texas Open Records Act.

General Guidelines in Implementing this Policy

Confidentiality of library records is a basic principle and ethical responsibility of librarianship. As a matter of policy or procedure, the library administrator should insure that:

  • He/she consults with the library's counsel to make counsel aware of policy and agree to its interpretation.
  • The library staff and library board are familiar with the confidentiality policy.
  • The library staff and governing body are familiar with the library confidentiality article of the Texas Open Records Act, the ALA Policy on Confidentiality of Library Records, and the ALA Statement on Professional Ethics.
  • The library adopts a written policy on confidentiality of library records.
  • The staff is familiar with and are required to follow the "specific guidelines" set forth below.

Specific Guidelines in Implementing this Policy

Library Procedures Affect Confidentiality

Law enforcement visits aside, be aware that library operating procedures have an impact on confidentiality. The following are recommendations to bring library procedures into compliance with the Texas Open Records Act, ALA's Statements on Professional Ethics and Policy on Confidentiality:

  • Avoid unnecessary records. Give careful consideration before creating written records pertaining to patron's use of library materials and/or services.
  • Check with your local governing body to determine record retention requirementsand destroy records as soon as possible.
  • If your library uses patron names on book cards, begin using numbers or blacking out the names.
  • Eliminate any confidential information that may be on public view, e.g., overdue notices or filled-request notices mailed on postcards, or names of patrons with overdues posted by the circulation desk. Use reasonable care when providing patron information over the phone, e.g., titles of interlibrary loans or books on hold; confirm patron identification.

Law Enforcement Visits

Recommended steps to take when law enforcement officers visit:

  • If a library employee or volunteer is approached by a law enforcement officer requesting information about a library user, he/she should immediately ask for identification and refer the officer to the library administrator or responsible officer of the institution.
  • The library administrator should meet with the law enforcement officer and a library colleague in the library.
  • Be cordial, and explain that libraries support the work of law enforcement agencies, and library ethical standards are not intended to be obstructionist; rather, affirm the importance of confidentiality of personally identifiable information in the context of First Amendment rights. Should an officer be persistent, state again that information is disclosed only on the presentation of a proper court order, and that the state law and the library's governing body firmly support this policy, and terminate the interview. Explain that it is a violation of the Texas Open Records Act (a misdemeanor) for the library to disclose confidential information.
  • The library administrator should provide a copy of the library's policy. Most important, the library administrator should state that personally identifiable information about library users is not available under any circumstances, except when a proper court order has been presented.
  • Keep in mind that a polite but firm response is the best way to deflect attempts at persuasion, coercion or misguided appeals to patriotism. When a law enforcement officer realizes that he/she simply will not succeed by such methods, most likely he/she will abandon the effort and take the appropriate course of action by providing the required court order to obtain access to the confidential information requested.
  • In response to appeals to patriotism (e.g., "a good American wants to help us"), explain that as patriotic, good citizens, library administrators and library staff value First Amendment freedoms and the corresponding privacy right of library users.
  • Do not misinform a law enforcement officer. However, without a court order, no person has independent authority to compel cooperation with an investigation or to require anyone to provide information deemed to be confidential. The best thing to say to an officer who has asked for confidential information is, "I'm sorry, but the Texas Open Records Act and my library ethics prohibit me from responding to your request." Obtain the officer's name and badge number and notify your supervisor and the library's legal counsel of the incident.
  • Report any threats or coercion to the library administrator and to the library's legal counsel. Repeated visits by law enforcement officers who have been informed that records will be released only upon receipt of a proper court order may constitute harassment or other grounds for legal action. In addition, the advice of legal counsel should be sought as to whether appropriate relief from such action should be requested from the court.
  • Before any action, refer any subpoena received to the appropriate legal counsel for review. If there is any defect in the subpoena, including its form, the manner in which it was served upon the library, the breadth of its request for documents, or insufficient evidence that a showing of good cause has been made to the court, legal counsel will advise on the proper manner to deny the subpoena.
  • Through legal counsel, require that any defects in the subpoena be corrected before the appropriate records are released. The subpoena must be limited strictly to require release of only specifically identified records or documents.
  • Repeat the entire process, should the party requesting the information be required to submit a new subpoena.
  • The library's legal counsel and the library's administrator should review any information which may be produced in response to such a subpoena strictly and exclude any information which is arguably not covered by a proper subpoena.
  • In the event that the court rules that disclosure is required, request that the court issue an order that any information produced be kept strictly confidential and that it be used only for the limited purpose of the particular case. Sometimes these terms may be agreed to informally by the party seeking the information, but even if such an agreement is reached, it is better practice to require that this agreement be entered as a formal order of the court.
  • Develop a public information statement which may be distributed to interested members of the public, the news media, and law enforcement officers detailing the principles behind confidentiality. Such a statement should include an explanation of the chilling effect on First Amendment rights which would be caused by public access to personally identifiable information about library users.

Concluding Comments

An individual's reading habits cannot be equated with his or her character or beliefs. The First Amendment does not apply only to pre-approved or popular beliefs. The First Amendment also guarantees the right to hold and espouse unpopular beliefs and ideas. The First Amendment protects dissent. The First Amendment protects against the imposition of a state or community- approved orthodoxy as well as an enforced conformity of expression and belief. The First Amendment protects all Americans' rights to read and view information and decide for themselves their points of view and opinions.

Suggested Attachments to Confidentiality Policy

  1. ALA Policy on Confidentiality of Library Records

  2. ALA Statement on Professional Ethics

  3. Sample subpoena

  4. Complete Open Records Act

Prepared by ad hoc Confidentiality Committee, Public Library Administrators of North Texas, July 1993

Created on Aug 17, 2011 | Last updated August 17, 2011