Submission Date:
Question:
Can a library report a crime based on use of library resources while honoring CPLR 4509 (assuring the confidentiality of circulation records)?
Answer:
CPLR 4509 [1] is a critical caisson in a library’s foundation, protecting users from those who would draw negative inferences based on access to the library. The law sets out, in bold, simple language, that librarians shall not disclose such records to law enforcement (or others), unless there is an appropriate subpoena, court order, or disclosure is required by law.
That said, there will be instances when serious patron misconduct might require a report to law enforcement—but the mere act of reporting it will disclose a circulation record (for instance, a patron signing onto a library computer that is then used for a crime). How does a library report the criminal behavior, while honoring the letter and spirit of 4509?
The American Library Association has compiled a great array of information on balancing these priorities, and it is clear that the answer lies in the library’s policies. I will not re-create this excellent list of considerations here, but when it comes to this particular question, it is clear every library should have:
- Policies regulating conduct in the library (a policy on internet use can play a part in this);
- A policy setting the conditions for loss of patron privileges when misconduct impacts the community or library operations (this policy must have appropriate due process and levels of appeal);
- A policy, or well-established internal procedure, for reporting misconduct impacting operations of the library to law enforcement; this policy or procedure should consider how 4509 will be honored when such a report must be made;
- A policy for responding to law enforcement requests for circulation records (not based on a library’s report). This policy should include the library’s process for evaluating law enforcement requests;
- All policies and procedures referring to “circulation records” should have clear and consistent language regarding what “circulation records” are (both under 4509, and in that particular library [2]).
The New York Library Trustees Association has a thorough database of policies addressing, from a variety of libraries, addressing these topics. But just use these for inspiration, since policies must be crafted, evaluated, and periodically revised to serve the mission, legal requirements, and operational needs of your particular library. Ideally, your lawyer should not only review the final product, but be ready to assist with any law enforcement request, is a good idea.
A library that makes sure it has addressed the points in the above bullets, and has trained their staff on these priorities, is ready to protect circulation records, while safeguarding the “proper operation of the library!”
[1] Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute.
[2] Note the ALA guidance on steps to minimize creating/retaining circulation records.
