NJLA PRIVACY STATEMENT
The New Jersey Library Association confirms the right of each individual, regardless of age, to open inquiry and to read, view, listen and use resources without fear of scrutiny
by others.
Adopted by the NJLA Executive Board Dec. 19, 2006
NJLA CONFIDENTIALITY OF LIBRARY RECORDS STATEMENT
Confidentiality exists when a library is in possession of personally identifiable information about users and keeps that information private on their behalf.
Suggested Procedures for Implementing "Policy on Confidentiality of Library Records"
When drafting local policies, libraries should consult with their legal counsel to ensure these policies are based upon and consistent with applicable federal, state*, and local law concerning the confidentiality of library records, the disclosure of public records, and the protection of individual privacy. Suggested procedures include the following:
- The library staff member receiving the request to examine or obtain information relating to circulation or other records identifying the names of library users must immediately refer the person making the request to the responsible officer of the institution, who shall explain the confidentiality policy.
- The director, upon receipt of a search warrant, subpoena issued by a court, or a court order, shall contact an attorney who is familiar with library law to determine if such search warrant, subpoena issued by a court, or court order is in good form and if there is a showing of good cause for its issuance.
- If the search warrant, subpoena issued by a court, or a court order is not in proper form or if good cause has not been shown, the library with advice of its attorney should insist that such defects be cured before any records are released.
- The legal process requiring the production of circulation or other library records is ordinarily in the form of a subpoena duces tecum (bring your records) requiring the responsible library officer to attend court or to provide testimony at his or her deposition. It also may require him or her to bring along certain designated circulation or other specified records.
- Staff should be trained and required to report any threats or unauthorized demands (e.g., those not supported by a search warrant, subpoena issued by a court, or a court order) concerning circulation and other records to the director.
- Any problems relating to the privacy of circulation and other records identifying the names of library users that are not provided for above shall be referred to director.
*NJSA 18A:73-43:2 Library records which contain the names or other personally identifying details regarding the users of libraries are confidential and shall not be disclosed except in the following circumstances:
a. The records are necessary for the proper operation of the library;
b. Disclosure is requested by the user; or
c. Disclosure is required pursuant to a subpoena issued by a court or court order.
L.1985, c 172, s. 2, eff. May 31, 1985
NOTE: NJ Open Public Records Act does not supersede NJSA 18A:73-43:2
Adopted by the NJLA Executive Board Dec. 19, 2006
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SAMPLE CONFIDENTIALITY POLICY
The Board of Trustees of the _____________Library believes that it is the basic right of every individual to read what he or she wishes without fear of censure or legal consequence. It also affirms the right of every person to privacy. The library will do all within its power to protect each user's right to privacy with respect to all information required for registration and for information sought or received, and materials consulted, borrowed or acquired. Such records will not be made available to any individual, organization or government agency except pursuant to N.J.S.A. 18A:73-43.2 which reads: “Library records which contain the names or other personally identifying details regarding the users of libraries are confidential and shall not be disclosed except in the following circumstances:
a. The records are necessary for the proper operation of the library;
b. Disclosure is requested by the user; or
c. Disclosure is required pursuant to a subpoena issued by a court or court order.
L.1985, c 172, s. 2, eff. May 31, 1985.”
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Guidelines to assist libraries with requests for confidential library records
Before the Police Ever Arrive:
Adopt a board policy regarding procedures for working with law enforcement authorities. Retain an attorney who is familiar with library law. As autonomous agencies, library boards are entitled to lawyers who are independent of municipal administration.
If the police come to your library regarding access to library users’ records:
Give the police a copy of New Jersey's Confidentiality of Library Records Law (NJSA 18A:73-43.1). The statute states that:
" Library records which contain the names or other personally identifying details regarding the users of libraries are confidential and shall not be disclosed except in the following circumstances:
- The records are necessary for the proper operation of the library,
- Disclosure is requested by the user, or
- Disclosure is required pursuant to a subpoena issued by a court or court order."
This means that library records can only be disclosed if the police have a search warrant (a form of court order), subpoena issued by a court, or a court order.
Ask the police if they have a warrant, a subpoena issued by a court, or other court
order. This is important because without properly executed documents, a defendant can
escape conviction.
Immediately contact an attorney who is familiar with library law. If your attorney is not familiar with library confidentiality issues, please refer her/him to the NJLA office and our attorney will assist her/him. Also notify your local administration (library board president, county library commission chairperson, or college leadership such as the president or provost).
If police don’t have the documentation, just wait.
If presented with a search warrant, review the documentation, making sure that it is specific regarding what records, computers, etc. are wanted. The requested information/materials must be turned over to law enforcement immediately. The police will give you a receipt; if not, ask for one. Notify an attorney familiar with library law.
If presented with a subpoena or other court order, you should have time before you must comply with its demands. Notify an attorney familiar with library law, who will advise how and when to comply.
PLEASE NOTE: The New Jersey Library Association, in support of the right to read, the right to privacy conferred by the NJ Constitution, and the 4th Amendment to the U.S. Constitution, interprets the phrase “a subpoena issued by a court” to mean that the signature of a judge is required to validate a subpoena that demands personally identifying details regarding library users. This interpretation of the statute has not been adjudicated.
Frequently Asked Questions Regarding Library Confidentiality of Records
A. To whom is the subpoena addressed? Must it be made out to a specific individual?
A subpoena is a command to appear at a certain time and place to give testimony on a certain matter. It can be addressed to a specific individual or to an organization, like a library. It can even be addressed to "the person most knowledgeable about such and such" (in which case the organization must designate the most knowledgeable person), “person with authority to bind,” or “custodian of records.” A subpoena may command a witness to bring certain documents, books, papers and other things (including computers).
B. Can library personnel show the library record to their library board or college administration?
If the records are "necessary for the proper operation of the library," then yes, library staff can show the library record to the board or administration. But not if the board is merely curious about the reading habits of a particular patron, or wishes to use the records for some purpose unrelated to the proper operation of the library.
C. What is the difference between a subpoena and a search warrant?
A search warrant is an order issued by a judge, authorizing a law enforcement officer to search for and seize any property that constitutes evidence of the commission of a crime, property used as the means of committing a crime, contraband, etc. Law enforcement officers cannot obtain search warrants unless they convince a judge that there is probable cause to believe that a crime has been committed. Search warrants are virtually always granted, so it is not particularly difficult for law enforcement offers to get them. Criminals can escape conviction if evidence is seized without a warrant or properly executed subpoena or court order.
One difference between a search warrant and a subpoena is that a subpoena is issued ahead of time, whereas a search warrant permits the police to conduct a search on the spot. A library can move to "quash" a subpoena to protect the confidentiality of innocent patrons. The attorney will advise how to comply.
D. If the police show up with a search warrant what is the library to do?
If the police have a search warrant, they should be permitted to conduct the search. The search may be done at the library, or off site.
E. Can the police take a library computer without a subpoena?
Yes, if they gave you a valid search warrant. If they have only a subpoena, which must be issued ahead of time, your lawyer, with your approval, can move to "quash" the subpoena to protect the confidentiality of innocent patrons. The subpoena can command the library to make the library computer available at a particular place and time. If it would be disruptive to have law enforcement personnel examine the computer at the library, it might make sense to make the computer available elsewhere or after hours.
What if the police have a search warrant and say they need to take the computer away with them on the spot? Ordinarily, the library must comply.
F. Will the library ever get the computer back?
Probably. The police are required to leave a receipt for anything they remove from the premises.
G. Will the subpoena ask for specific information?
Yes, a subpoena will usually ask for specific information. The library may or may not have the information, but must do its best.
H. There has been new security legislation on both the federal and state level. Would these new laws suspend the Confidentiality of Library Records Law and permit police assess to records without a subpoena?
It does not appear that anything in either new law would supersede the Confidentiality of Library Records Act. The attorney working with NJLA believes that a subpoena is still warranted to obtain library records. ALA is also providing materials on the USA Patriot Law.
I. Where can I find information about the USAPATRIOT Act?
The American Library Association has provided an analysis of the USAPATRIOT Act and Guidelines for libraries on its web site at www.ala.org.
J. Should I notify the target of the subpoena?
This is your choice except in USAPATRIOT cases. Contact an attorney familiar with library law.
Revised by the NJLA Executive Board Oct. 17, 2006. Submitted by the NJLA Intellectual Freedom Subcommittee.
Additional Information:
PRIVACY
Privacy Audit
Privacy Tool Kit
REQUESTS FROM LAW ENFORCEMENT
Confidentiality and Coping with Law Enforcement Inquiries: Guidelines for the Library and its Staff
Gotham City Public Library Model Policy 1.1 Third Party and Law Enforcement Requests for Library Records and User Information
Gotham City Public Library Model Staff Directive 1.5 Guidelines for Responding To Law Enforcement Requests for Library Records and User Information
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