Guidelines to assist libraries with requests for confidential library records

What to do if the police approach your library regarding access to library records:

1. First, 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 subpoena issued by a court or court order.

2. Adopt a board policy regarding procedures for working with law enforcement authorities. The policy should also outline staff responsibilities regarding emergency situations.

3. Contact your local attorney and your local administration ( library board president, county library commission chairperson, or college leadership such as the president or provost.) They should be made aware of the situation. Your local attorney should be advising you regarding the subpoena. If your local attorney is not familiar with library confidentiality issues, please refer them to the NJLA office and our attorney will assist them.

4. Tell the police, your attorney and your administration that you cannot turn over the records without a subpoena signed by a judge or a court order signed by a judge. Remind them that a defendant can escape conviction if the subpoena or court order is not properly signed by a judge.

5. Wait. It should not take long for law enforcement officers to get a court order: certainly less than a day.

6. Review documentation. Make sure it is specific regarding what records or computers they want.

7. If proper documentation is provided, turn records over and get a receipt from the police.

Frequently Asked Questions Regarding Library Confidentiality of Records

A. Who is the subpoena made out to? 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. A subpoena may command a witness to bring certain documents, books, papers and other things (including computers).
Ordinarily, a subpoena can be signed by an attorney. Here, in contrast, under the library confidentiality statute, a subpoena that asks for "personally identifying details regarding the users of libraries" *must* be signed by a *judge*.

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 a 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.
Both a subpoena and a search warrant must be signed by a judge before a library can disclose information about patrons. The same is true for a "court order." The point is that libraries cannot disclose information about their patrons, even to law enforcement personnel, without an order of some kind, signed by a judge. If a subpoena is signed only by a lawyer or by a law enforcement officer, it is *not* adequate.
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.

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 a search. The search can be done at the library.

E. Can the police take a library computer without a subpoena?
No. A subpoena is usually issued ahead of time, and a library 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? I think the library must comply.

F. Will the library ever get the computer back?
I don't know.

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. What other legal issues must library personnel be aware of regarding library records?
If a library is a governmental entity (affiliated with a municipality, county, state college, etc.), it should be very careful not to violate the civil rights of its patrons. There is a First Amendment right to receive information in a public library. Accordingly, if the board or the administration wants to monitor the reading habits of particular patron, it may run afoul of the civil rights laws.
It is perfectly acceptable to move to quash a subpoena that violates the rights of library patrons. You may recall that when the FBI subpoenaed Monica Lewinsky's bookstore, the American Publishing Association successfully moved to quash the subpoena on the grounds that the subpoena violated the rights of everyone who purchased books there. Accordingly, if you think a library computer has confidential information about patrons, which would be totally irrelevant to law enforcement, it would be perfectly honorable to ask the court to quash the subpoena. Search warrants, unlike subpoenas, must be honored on the spot.

I. 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 new Patriots Law.

J. Where can I find information about the U.S.A. Partiot Act?
The American Library Association has provided an analysis of the Act and Guidelines for libraries on its web site at www.ala.org

Adopted by the NJLA Executive Board Nov. 20 2001
Last Updated : Wed, 13 Mar 2002