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 |
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.” |
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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