TO: Freedom to Read Foundation
FROM: Jenner & Block
DATE: May 12, 1999
SUBJECT: Open Records Requests Seeking Information Concerning Complaints About Patrons Accessing “Inappropriate” Material on Public Library Internet Terminals
In recent months, libraries across the country have received requests seeking information concerning “patron and staff complaints about patrons accessing inappropriate material on public Internet terminals.” The Freedom to Read Foundation has asked us to prepare a memorandum providing general guidance that a library may use if it receives such requests for information.
Before we begin that analysis, we must caution that this memorandum is merely a general discussion of these issues, and is not an opinion letter. Because laws differ from state to state, this memorandum necessarily cannot serve as the basis for legal judgements for any library faced with freedom of information requests. Additionally, the law related to privacy and open records requests changes regularly. A library that receives a freedom of information request should seek legal advice for an analysis of its own particular situation and the current laws of its own state and jurisdiction.
Libraries receiving requests for information concerning complaints about “inappropriate material” on public Internet terminals should take the following general steps:
(1) OPEN RECORDS LAW
Libraries should identify the relevant “open records” or “freedom of information” law governing requests for public documents. Every state has its own open records statute, and each requires public entities such as libraries to provide requesters with copies of most public records. “Public records” typically are defined to include documents made, received, or maintained by a public body. An Internet-related complaint to a library likely will be covered under an open records act if either (a) it is a written complaint submitted to a library, or (b) the library keeps a written record of the complaint.
Before responding to any request, a library should determine whether one or more of the exemptions listed below allows the library to withhold some or all of the requested information. In fact, in some instances a library exemption may prohibit a library from producing the requested material.
Many open records laws may permit a responding library to charge a copying fee (and, in some cases, a search fee). However, there are often strict limitations on both the amount of fees the library can charge and on the circumstances under which the library is allowed to charge any fees at all.
All open records statutes contain a variety of exemptions that may allow libraries to withhold some of the requested information. As a general matter, however, it will be difficult for a library to avoid producing any information on Internet complaints, if such complaints have indeed been made. As discussed below, most states have a “redaction” or “segregation” rule that requires a responding agency to produce segregable portions of otherwise exempt material. Thus, even if a patron complaint is deemed “confidential” because it reveals the names and practices of library patrons, the library likely will have to disclose the complaint with the names redacted.
Many of the exemptions below are mandatory and impose penalties for disclosing exempt information. Where the law requires libraries to produce redacted documents, library employees should take care to redact any information that may disclose the names of library patrons.
This is not an exhaustive list of exemptions. Libraries receiving requests for information should review their jurisdictions’ open records law to determine whether any additional exemptions apply.
- Out-of-State Requestors
In a small minority of states, 1 only state citizens may submit requests under the jurisdiction’s open records law. Thus, if a library in one of these states receives a document request from an out-of-state requester, it is not required to disclose any information.
- Library Privacy
Forty-seven states and the District of Columbia have specific statutory exemptions for the disclosure of certain library records. 2 These exemptions typically cover “circulation records,” “registration records,” or other information that identifies individuals who use any library materials. Accordingly, a complaint about “inappropriate” Internet use in the library arguably would be exempt from public disclosure if it associated an individual patron (either the complainant or the patron surfing the Internet) with his or her library use.
Even if a Internet-related complaint is otherwise covered by a library privacy exemption, however, a library likely will be required to produce a redacted version of the complaint (see Part (3) below). 3
- Personnel Records
It is unlikely that a library employee’s complaint about patrons’ Internet use would be contained in the complaining employee’s personnel file. If such information were kept in the employee’s file, however, it might be subject to a limited “personnel records” exemption. These exemptions allow personnel records to be inspected “only by the person in interest,” that is, only by the employee in question. Most states make clear that an employer may not restrict access to documents that are otherwise available merely by placing them in an employee’s personnel file.
- Ongoing Investigations
Some states allow limited, narrow exemptions for records that are the subject of ongoing investigation into alleged civil rights or safety violations. These types of exemptions might cover Internet complaints if, for example, a library employee filed a “hostile work environment” claim on the basis of sexually explicit Internet images. This category of exemptions, however, is unlikely to provide much protection against disclosure because the exemptions usually cover only information obtained “in the course of an investigation.” In other words, complaints filed before a formal investigation begins probably would fall outside the “ongoing investigation” exemption. This exemption, moreover, typically applies only to official investigations conducted by, for example, a state human rights commission. Finally, anything covered under an “ongoing investigation” exemption will almost certainly be subject to disclosure once the investigation is complete.
Nearly every state has a requirement—either statutorily or judicially imposed—to produce segregable portions of otherwise exempt material. As a general matter, libraries responding to information requests therefore must provide redacted versions of Internet-related complaints even if the complaints otherwise fall within one of the categories of exemptions listed above.
In certain situations, however, no redacted information need be produced. First, if a library is located in a state with a open-records citizenship requirement, out-of-state requesters are not entitled to the library’s records (even if they are redacted). Second, a handful of states merely allow—but do not require—agencies to disclose redacted versions of otherwise exempt information. Third, in many states a library need not segregate non-exempt material if it is practically impossible to do so. Finally, a few library privacy laws are worded so that certain library materials are not even considered “public records” under the relevant open records law. In those states, the redaction and segregation requirements arguably would not apply to the requested Internet complaints because those complaints would not be covered by the open records statute at all. Responding libraries should consult an attorney and the relevant statutes to determine whether any of these exceptions applies to the general redaction rule.CONCLUSION
Libraries receiving requests for information must consult the open records statutes and case law in their own jurisdiction to determine whether the requested information can or must be produced. In some instances, the library may be prohibited from producing such information. In other cases, the library may be obligated to produce the information wholly or in redacted form.
1Those states currently include Arkansas, Delaware, Georgia, New Jersey, Pennsylvania, Tennessee, and Virginia.
2In addition, two states—Hawaii and Kentucky—have issued attorney general advisory opinions recommending that library circulation records be exempted from public disclosure. Only Ohio appears to have no library privacy protections.
3In addition, the library privacy exemptions often contain numerous exceptions, requiring disclosure of circulation information under the following circumstances: pursuant to court order; where parents seek access to their children’s circulation records (fewer than ten states include this exception); where information can be provided in aggregate form without disclosing the names of library patrons; and, by written consent of the library patron in question. Libraries should be cautioned that a subpoena is not a court order.