RAQs: Recently Asked Questions

Topic: Unsealed overdue notices and FERPA - 4/3/2020
I am wondering if sending unsealed overdue notices to students in their classrooms is a FERPA viol...
Posted: Friday, April 3, 2020 Permalink

MEMBER QUESTION

I am wondering if sending unsealed overdue notices to students in their classrooms is a FERPA violation. The notices might appear face up on their desks or in their hands for other students to see. The prices of overdue materials are listed on our notices. Another issue - is calling a student's home and leaving a message stating that they have an overdue book and giving the price of the book a FERPA violation? Thank you.

WNYLRC ATTORNEY'S RESPONSE

What a difference a month makes.  When this question came in, my kids were in school, my staff was at the office…and I am willing to bet at least one person in that group had an overdue library book.

Now, of course, we are all home trying to “flatten the curve” of a global pandemic.  If we had overdue books before, they might be overdue for a bit longer.[1]

Despite a global shift in focus since this submission, it is still a good one, and the second question may be more urgent than ever.

The FERPA fundamentals impacting this question were addressed in an “Ask the Lawyer” last year: https://www.wnylrc.org/ask-the-lawyer/raqs/80.

With that as background,[2] here are my answers:

Is sending unsealed overdue notices to students in their classrooms a FERPA violation?

Unless there is a specific waiver or request for the information, unsealed notices distributed in classrooms risks both a FERPA violation, and a violation of CPLR 4509.

Sealing the notices so the contents can’t easily be seen by people who aren’t the students or their legal guardians is a good idea.

 

Is calling a student's home and leaving a message stating that they have an overdue book and giving the price of the book a FERPA violation?

Unless the student requests it, or a policy states that such a practice is for the proper operation of the library, a message reciting library records to a home phone answering machine risks a violation of CPLR 4509.[3]  If the student is under 18, it is not a FERPA violation—so long as the home answering machine is that of the child’s legal guardians—but as reviewed here, FERPA is not the only privacy law a school library in New York must follow.

Lost in a sea of law and regulations?  When considering the implications of FERPA and CPLR 4509 for a school library, seeking solutions that err on the side of privacy is always the safest course.   While applying the letter of the law can be frustrating, a default prioritization of privacy will almost always carry the day.[4]

Thanks for a thoughtful question.  At times of de-stabilization and change, focusing on the principles that guide us—like a commitment to providing access to information along with assured privacy—can bring calm.



[1] Many thanks to the Buffalo and Erie County Public Library for automatically renewing our books!

[2] Intricate, complex, and possibly unsatisfying background!

[3] I like this 2009 guidance from the New York Committee on Open Government on the nuances of CPLR 4509: https://docs.dos.ny.gov/coog/ftext/f17671.html

[4] If health and safety are in seeming conflict with privacy, that is a good time to do a quick check-in with a lawyer.

Tags: COVID-19, Emergency Response, FERPA, Privacy

Topic: Emergency contact information for children attending library programs - 11/12/2019
My question is: do public libraries have any legal obligation to collect emergency contact informa...
Posted: Tuesday, November 12, 2019 Permalink

MEMBER QUESTION

My question is: do public libraries have any legal obligation to collect emergency contact information for children (age 17 and under) attending library programs without a parent or caregiver present/on the premises? Our library is located on the campus of a school district, and we have access to the school district's library automation system, in addition to our own, so we could easily and quickly locate contact information for the parents/caregivers of children who attend our programs in the event of a medical or other type of emergency situation. We already have an unattended minor policy as well. Our Library Board wants to make sure that we are in compliance with both Federal and New York State law on this issue. Thank you.

WNYLRC ATTORNEY'S RESPONSE

This question is rather like asking an astronautical engineer: When on a spacewalk, are there any safety procedures specifically related to securing my helmet as I exit the airlock? 

Such a question could inspire an initial reaction like:  Safety concerns?  In SPACE???  Blazing comets,[1] the safety concerns start the moment you blast off!

But upon reflecting on the actual question, the calm, composed answer might be: “To ensure integrity of the pressure garment assembly, double-check the neck-dam’s connection to the helmet’s attaching ring.”[2]

Lawyers get this way addressing questions related to children and liability.  Our first reaction is to think about everything that can go wrong.  But then we calm down and focus on the specific issue at hand.

So, here is my calm, composed answer to the member’s very specific question:

There are two potential instances where a public library offering a program for unaccompanied minors might be obligated by law to collect emergency contact information.

FIRST INSTANCE

If the program the library is hosting is a camp required by law to have a “Safety Plan,” applicable regulations arguably require that the library gather the child’s emergency medical treatment and contact information.[3]

SECOND INSTANCE

If the library is paying a child performer as part of an event, the law requires that the library must collect the child performer’s parent/guardian information before the performance.[4]

Other than the above instances, while such a practice may be required by an insurance carrier,[5] a landlord, or event sponsor, there is no state law or regulation that makes collecting emergency contact information a specific requirement of a public library.

I do have two additional considerations, though.

FIRST CONSIDERATION

 “Emergency contact” information provided by the parents/guardians, in a signed document drafted expressly for your library, is generally the best course of action when welcoming groups of unaccompanied minors for events not covered by your library’s usual policies. 

I write this because Murphy’s Law (which is not on the bar exam, but remains a potent force in the world) will ensure the one time there is an incident at your youth program, the district’s automation system will be down.

Which brings us to the….

SECOND CONSIDERATION

Libraries and educational institutions sharing automation systems must make sure that such data exchange does not violate either FERPA (which bars educational institutions from sharing certain student information), or CPLR 4509 (which bars libraries from sharing user information).

Emergency contact information maintained by a school is potentially a FERPA-protected education record.[6]  If FERPA-protected, it is illegal for any third party—such as a public library—to access it unless there is an agreement in place with certain required language AND the library’s use of the information is in the students’ “legitimate educational interests.” [7]

Of course, given the right circumstances, meeting these criteria is perfectly possible.  In fact, such agreements can be a routine part of a school’s operations.   But just like with a space helmet before leaving the airlock, its best to confirm that everything is in place before you take the next step.[8]

Thanks for a thought-provoking question.

 

 



[1] I imagine aeronautical engineers swear like the rest of us, but I like to image they sound like characters Golden Age comic books.

[2] Thanks, NASA.gov!

[3] I know this question isn’t really about camps, but libraries do host them.  And since the NY State Health Department’s template for a licensed camp’s “Safety Plan” includes eliciting emergency contact/treatment info, I have to include this consideration. For a breakdown of what types of camps requires licenses, visit https://www.health.ny.gov/publications/3603/

[4] This is a requirement of Title 12 NYCRR § 186-4.4. Since the library would also need said child performer’s license to perform, this requirement would not likely be missed!  I also appreciate that this example is on the far side of what this question is actually about.

[5] Call your carrier to check.  They may even have preferred language for your library to use when crafting registration documents.

[6] The definition of “education records” under FERPA (and its many exceptions) is here: https://www.ecfr.gov/cgi-bin/text-idx?rgn=div5&node=34:1.1.1.1.33#se34.1.99_13.  Interestingly, a student’s name, phone number, and address—three critical components of an emergency contact form—are potentially not FERPA-protected “education records” as they may be considered “directory information” if specifically listed in a public notice from the school, as required by FERPA Section 99.37. FERPA violations can turn on these small details!

[7] What language is that? Under FERPA Section 99.31, an educational agency or institution may disclose such information to another party (like a library on its campus) if that party is: 1) performing a function for which the school would otherwise use employees; 2) the library directly controls the contractor’s use and maintenance of the records; and 3) the contractor is required to not further disclose the records.  This formula can also be found in the link in footnote 4.

[8] Who says that simile can’t make a second appearance?!

Tags: FERPA, Policy, Privacy, CPLR 4509, Public Libraries

Topic: Patron Confidentiality in School Libraries - 5/6/2019
Is a parent or guardian allowed to access the titles of books that that their child(ren) have chec...
Posted: Monday, May 6, 2019 Permalink

MEMBER QUESTION

Is a parent or guardian allowed to access the titles of books that that their child(ren) have checked out from the school library?

Are school administrators allowed to access the titles of materials a student checked out?

Are school safety officers and Student Resource Officers (“SRO’s”) allowed to access the titles of materials a student checked out?

WNYLRC ATTORNEY'S RESPONSE

In the state of New York, library records linked to the names of users can only be disclosed:

1) upon request or consent of the user;

2) pursuant to subpoena or court order; or

3) where otherwise required by statute.

Therefore, the strong default answer to the member’s questions is “NO.”

This strong default position is based on New York Civil Procedure Rules (“CPLR”) 4509, which states:

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.

[emphasis added]

But when it comes to the records of minors at a school serving minors, after this omni-present strong default, there are some additional factors to consider.

FACTOR #1

Does the school condition library privileges on express parent/guardian access to library records?

Under CPLR 4509’s first prong (“consent of the user”), some libraries may condition library use by a minor on permission to share library records with parents/guardians. 

This condition is not invisible or automatic; it would need to be in the cardholder agreement signed by the student, or in a written school policy passed by the school board.  It must be clear, and in writing.

There is much vigorous debate about what level of parent/guardian access it is appropriate to condition library privileges on.[1]  But since such conditioning is allowed by the law, setting the appropriate balance between privacy and access is the job of the library and its leadership.

The bottom line on this factor? If a school library has an express, written policy allowing it,[2] and if that policy also complies with the school’s obligation’s under FERPA (see below), a list of titles checked out may be disclosed  to parents in conformity with CPLR 4509.

FACTOR #2 

Does the school regard library records as “education records” under FERPA?

The member’s questions warrant three considerations vis-à-vis FERPA (“Family Education Rights Privacy Act”), a country-wide law which applies to any educational institution receiving federal aid.

First FERPA consideration: Are the school’s library records accessible as “education records” under FERPA?

Because it is famous for protecting privacy, people generally think of FERPA as a bar—not a means—to information.  But FERPA expressly allows parents and guardians of students under 18 (unless the minors are attending a higher ed institution) to “inspect” “education records,” and, under the right circumstances, allows disclosure of education records to school administrators. 

A list of titles borrowed from a library, if maintained in a way that meets FERPA’s definition of “education records” could be subject to such inspection and disclosure. 

So let’s look at that definition:

[Information]

(1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.[3]

That’s a broad definition!  But several categories of information are exempted from it, including:

 (i)  records of instructional, supervisory, and administrative personnel and educational personnel ancillary thereto which are in the sole possession of the maker thereof and which are not accessible or revealed to any other person except a substitute;[4]

Under this exception, school library records, if kept in a certain way (with only the librarian, or “substitute,” having access to the records, and the information not linked to or accessible to others, including the student), are arguably exempt from FERPA. 

What’s the take-away, here?  It is possible—but not a uniform rule—that school library records are “education records” under FERPA.  Determining if they are should be part of a school’s annual FERPA notice and policy work, and should be a consideration when a school library considers automation options. 

Second FERPA Consideration: If a school determines their library records DO qualify as “education records,” does a school administrator, safety officer, or SRO[5] have a right to access them under FERPA?

Even if the library records at a specific school qualify as “education records,” when it comes to school administrators, there are only two instances where disclosure is allowed.

The first instance is created by FERPA regulation §99.3.  It allows “… disclosure … to other school officials…[if the disclosure is in the student’s] legitimate educational interests.” 

With regard to a request for a list of borrowed library books, this means there must be a direct, pedagogical reason to disclose that particular list to that particular administrator, safety officer, or (if their contract has the right provisions) external personnel.  To determine if those individuals’ access is in the students “legitimate educational interests,” consideration of the unique circumstances is required, but it comes down to: how does this serve the student?  

The second instance is created by FERPA regulation §99.36.  This regulation allows an educational agency or institution to “disclose personally identifiable information from an education record to appropriate parties… in connection with an emergency if knowledge of the information is necessary to protect the health or safety of the student or other individuals.

Under extraordinary circumstances, this exception could be cited to justify disclosure of education records to an administrator, safety officer or SRO addressing a concern about immediate health or safety. 

But the circumstances warranting the disclosure would need to be—as I say—extraordinary.  Congress and the U.S. Department of Education want this to be a very narrow exception tied to imminent threats:

The Department has consistently interpreted this provision narrowly by limiting its application to a specific situation that presents imminent danger to students or other members of the community, or that requires an immediate need for information in order to avert or diffuse serious threats to the safety or health of a student or other individuals. [6]

Such a “health/safety” analysis—especially if used to justify disclosure of library records—will be highly fact-specific.  Whenever possible, it should be done in consultation with the school’s attorney, with careful consideration of the precise circumstances and any relevant policies (by the way, this is the kind of “now or never/critical” question school attorneys cancel meetings to research and answer promptly).

Third FERPA consideration: if a school determines their library records are “education records,” CPRL 4509 may still bar parent access under FERPA.

And finally, there is also a possibility that even if a school’s library records are “education records,” under FERPA, library records in New York schools are barred from being shared (without consent) with parents/guardians by CPLR 4509. 

I base this on §99.4 of the FERPA regulations, which states:

An educational agency or institution shall give full rights under the Act to either parent, unless the agency or institution has been provided with evidence that there is a court order, State statute, or legally binding document relating to such matters as divorce, separation, or custody that specifically revokes these rights.[7]

In New York, we have just such a “State statute:” CPLR 4509.  When it was adopted, its role was described as follows:

The New York State Legislature has a strong interest in protecting the right to read and think of the people of this State. The library, as the unique sanctuary of the widest possible spectrum of ideas, must protect the confidentiality of its records in order to insure its readers' right to read anything they wish, free from the fear that someone might see what they read and use this as a way to intimidate them. Records must be protected from the self-appointed guardians of public and private morality and from officials who might overreach their constitutional prerogatives. Without such protection, there would be a chilling effect on our library users as inquiring minds turn away from exploring varied avenues of thought because they fear the potentiality of others knowing their reading history.[8]

Those are some stirring words about privacy.  They show what the Assembly’s intent was when CPLR 4509 was passed. 

That said, this potential conflict between CPLR 4509 and FERPA has not been tested in a court of law.[9]  This position is not something a school should  adopt or rely on without consultation with their own attorney, as part of their annual FERPA notice and policy work.

But it is definitely something to consider.

Final FERPA Consideration: how to resolve a FERPA question when state and federal law conflict.

The good news in all this 4509/FERPA complexity is that FERPA itself anticipates this type of conflict and resulting concerns.  FERPA Regulation §99.61 states:

If an educational agency or institution determines that it cannot comply with the Act or this part due to a conflict with State or local law, it shall notify the Office within 45 days, giving the text and citation of the conflicting law.

In other words, the U.S. Department of Education knows schools will be wrestling with these issues!  A school that makes a good-faith determination of non-disclosure under FERPA (always with the advice of their attorney) can follow this policy for reporting a conflict.  The USDOE will write you back, even if your concern is policy-driven or hypothetical.

Conclusion

Since school libraries—which are legally distinct from libraries at colleges and universities—are specifically named in CPLR 4509, there is no doubt that 4509’s strong bar on disclosure applies to schools where minors are in attendance, while the law is silent about access of guardians/parents to their children’s library records.

The best way for a school library and its leadership to handle these questions is in advance, by having a policy that respects student/family rights, and the operations of the library. 

A good school library “Confidentiality of Library Records” policy will protect student privacy, educate students about their right to privacy, coordinate with the school’s position under FERPA, consider student and employee well-being, and position the library to operate properly. 

Creating such a policy is an exercise in staff teamwork and aboard responsibility.  Considering the complexity of the different factors at pay, I urge school librarians and their leaders to review these considerations with their own attorneys, and to work with their boards to adopt policies that reflect the legal position and the educational priorities of their institutions.

Thank you for these important questions.

 


[1] I am not going to provide a citation for this; the arguments are easy to find, and extensive.  For the record, I’ll say: I am not a fan of any third-party access other than what is needed to ensure remuneration for lost items. 

[2] Because school is a place where young people should be learning to value and protect their rights to privacy, I don’t suggest this lightly, but it is feasible.

[3] Authority: 20 U.S.C. 1232g(a)(4)

[4] 20 USCS § 1232g (a)(4)(2)(b) [NOTE:  The cited law and its companion regulation vary; the regulation adds language that the records is a ‘personal memory aid.” But the law does not have this “personal memory aid” language, and laws trump regulations, so this interpretation is feasible.

[5] For those of you reading this who are not in primary or secondary education, in New York, an SRO’s are “commissioned law enforcement officers who are specially trained to work within the school community to help implement school safety initiatives as part of the school safety leadership team.”  Source: New York State Education Department at http://www.p12.nysed.gov/sss/documents/FrameworkforSafeandSuccessfulSchoolEnvironments_FINAL.pdf

[7] If there is ever a case based on this line of argument, it may come down to a missing Oxford comma, since I imagine there would be a contention that the “state statute” also needs to related to “divorce, separation, or custody,” but given that there is no comma after “binding document,” that is not how it reads. Grammar, like privacy, is important.

[8] Mem. of Assemblyman Sanders, 1982 NY Legis Ann., at 25.

[9] But there is some commentary by the New York Committee on Open Government that supports this reading of the Regulation 99.4 (opinion FOIL AO 11872).

 

Tags: Privacy, FERPA

Topic: Does FERPA regulate student publications and exclude them from being digitized? - 4/2/2019
We received two grant applications for projects involving the digitization of high school student ...
Posted: Tuesday, April 2, 2019 Permalink

MEMBER QUESTION

We received two grant applications for projects involving the digitization of high school student newspapers/magazines. The schools have given permission for these materials to be made available on a historic resource-focused, free database.

When our board was reviewing these grant applications, it was brought up that sharing student publications may not be possible under FERPA regulations. The board was concerned that these student publications might be considered educational records, which under FERPA would be subject to restricted access. If FERPA applies to these materials, they could not be uploaded and made accessible via an online database, and consequently would not be eligible for grant funding.

Does FERPA regulate student publications? Are there any other legal reasons student could not be made available freely in an online repository?

Thank you!

WNYLRC ATTORNEY'S RESPONSE

It took me 4 cups of coffee to figure out how to reply to this question!  And it’s not because I didn’t know the answer. 

FERPA is the “Family Rights Privacy Act.”  It bars disclosure of students’ “education records.”

“Education records” (like grades, disciplinary reports, attendance) are defined by FERPA as records:

               (1) Directly related to a student; and

(2) Maintained by an educational agency or institution or by a party acting for the agency or institution.

That is the entirety of the definition, from which many things—like names, team participation, dates of birth—are then excluded.[1]

The punishment for a FERPA violation is loss of ability to qualify for federal funds…a scary prospect for any school.  A FERPA violation also comes with a heavy dose of self-correction and shame, as an institution must fix whatever caused the problem, and often, send out letters of correction/apology.

With ten years as an in-house attorney at a university under my belt (and thus, a ten years’ worth of “FERPA Fear” in my brain), the minute I read this submission, I thought: Pshaw, no student newspaper or magazine is an education record under FERPA!  These grants are fine.

That was at cup #1.  But as I started cup #2, I thought: But why are these grants fine?  Why is no student newspaper or magazine an education record under FERPA?  Technically, they could meet the definition.

And those cocky ten years in higher ed were giving me no reason for my answer. 

For a lawyer, an answer without reasoning is no answer at all.  So I kept sipping (and researching). 

As I settled into cup #3, I reviewed some FERPA case law.   But although this were fun to revisit, by the time I was brewing cup #4, I realized: This is not telling me why a student newspaper or magazine doesn’t meet the definition of “education record” under FERPA.

It was only when I re-read FERPA’s definition for “disclosure” that I could back up my instinctive answer with actual legal reasoning. 

Remember, FERPA bars “disclosure” of student education records.  As it says in 20 U.S.C. 1232g(b)(1) and (b)(2)):

"Disclosure" means to permit access to or the release, transfer, or other communication of personally identifiable information contained in education records by any means, including oral, written, or electronic means, to any party except the party identified as the party that provided or created the record.  [emphasis added]

As I sipped gratefully at cup #4, there was the answer: if any student newspaper or magazine has content in violation of FERPA, the violation happened the minute it rolled off the presses…not when the content was published to a larger audience. 

It’s a bit metaphysical (or perhaps ontological) but bear with me: Re-publication in the way the member’s question describes—while arguably making an original violation bigger—cannot create a violation where there was none before. In other words, if FERPA-protected educational records were already “disclosed” via a student newspaper or magazine, allowing other people (students, parents, advertisers) unauthorized access to education records, there was already was a violation, back when the content was first published.  And if protected records aren’t already disclosed, the re-publication won’t be a forbidden disclosure, now.

To illustrate this, here is a hypothetical.  Let’s say that in 1991, the New Hartford High School newspaper (the Tattler!) printed all of my grades (without my permission).  That would have been a FERPA violation, about which I could have complained to the U.S. Department of Education.

Fast-forward to 2019.  Let’s say the Tattler ends up on New York Heritage, where everyone could then see that during the first Iraq war, I was a very strong scholar in English and History, but things were…a tad lacking in Math. 

While that would be a continuation of the old FERPA violation, it would not be a new violation (even if I was just seeing it for the first time).  And while I could still conceivably make a complaint to the USDOE, asking them to ask the school to work with New York Heritage to take it down, my options to do so would be limited, since there is no private cause of action or right to sue under FERPA. 

So, while I cannot “clear” unseen content for FERPA violations (remember my Tattler scenario), I can say that a new FERPA violation will not be caused by posting already-published material on New York Heritage.

In that same spirit, I will now address the other question the member asks:  Are there any other legal reasons student [publications] could not be made available freely in an online repository?

I wish I could just say “No,” and everyone could not worry about this at all.  But we must never underestimate the creativity of lawyers and plaintiffs in finding new ways to threaten legal action!  If the content of a particular student newspaper or magazine is scandalous or allegedly harmful enough, an attorney could try to frame a claim around some type of defamation or personal injury action.  And of course, when publishing content, there is always a potential claim based on copyright or trademark….even if that claim turns out to be bogus.

But these cautionary words are based on highly speculative scenarios.  There is no outright bar on sharing student publication content the way there is for disclosing grades, health information, and attendance-related records.  And because the digitization of student publications creates a useful array of otherwise ephemeral material, and can be a valuable snapshot of a culture at a particular place in time, there are  strong legal defenses for the digitization and publication of them by not-for-profit entities.[2]

To position a student publication digitization project to stand up to legal threats, a solid understanding and articulation of why the project has academic, social, and/or historic value, and a clear ability to show there is no “for-profit” motive, are fundamental.  By thinking through a digitization project, establishing its social value, and documenting its adherence to professional and scholarly ethics, it is easier to defend making the material freely available—and searchable. 

The good thing about grant funding is that the application and reporting process often builds these analyses right into the project. 

Thanks for this stimulating question!

 


[1] The whole list of exclusions is in the regulations found here: https://www2.ed.gov/policy/gen/guid/fpco/pdf/ferparegs.pdf. It does not specifically exclude publications.

[2] I could write a book, or at least a very long, heavily footnoted legal brief on these defenses, but for purposes of this response, you can trust they are there.

Tags: Privacy, FERPA

Topic: FERPA and NYS Privacy Laws - 1/9/2018
We have a question that relates to the intersection of New York state level library privacy laws (...
Posted: Wednesday, January 9, 2019 Permalink

MEMBER QUESTION

We have a question that relates to the intersection of New York state level library privacy laws (https://www.nysenate.gov/legislation/laws/CVP/4509) and FERPA. Our campus has a newish system that is attempting to correlate student actions and activities with academic success and retention. As such, it could be helpful to include things like visits to the writing center, appointments with academic advisors, and also library activities, such as whether a class came in for a library information literacy session or whether a student made an appointment for a library one-on-one consultation. FERPA lets institutions share academically related information within certain bounds.

We are wondering what the privacy balance is here given that the information would stay in-institution, but not in-library. Here's what we are considering doing:

1) Noting in the system which classes had a library session(s). Within the system, that would identify individual students within those classes.
2) putting an opt-in statement on our one-on-one research appointment form and if the student consents, then providing to system the student name, appointment date/time, and course that the help was for (but not anything about the specific content of the appointment).

Have we crossed any lines here? Do we even need the opt-in statement? Is this something clear or fuzzy/grey? What should we be considering that we haven't thought of? Thanks.

WNYLRC ATTORNEY'S RESPONSE

Depression.  Burn-out. Dissatisfaction. Lack of connection.  Lack of money. Lack of parking.

These are just some of the reasons students give when they choose to leave—or are forced to leave—their college or university before graduating. 

Many times, these reasons snuck up on them, although in hindsight, they could be seen: a pattern of missing classes, a downward trend in grades, maybe even dropping out of clubs and other campus activities.  And almost always, after a student leaves (often in tears) faculty and staff, coaches and friends, are left wondering: could they have done more[1]?

No matter what events led up to it, for each such incident of student “attrition,” the stakes are high: student loans, a sense of failure, the end of a career dream, and perhaps even a medical condition that went untreated while the student struggled on their own.

But what if the clues could be seen earlier?  What if the downward spiral could be stopped?

Fueled by increasing technological capabilities, many institutions of higher education are developing cross-campus, inter-sector systems to do just that: hoping to correlate the warning signs and fight student attrition through early intervention.  Using a variety of commercially available and home-programmed tech, they are tracking everything from dining hall meals, to class attendance, to visits to the gym.  These factors, as well as comments from concerned faculty or staff, are then routinely assessed and cross-checked for red flags. 

Because libraries are increasingly hosting classes and providing adjunct space for group work, it makes sense that such a system would consider tracking library usage.  After all, it can be a good sign that a student is just getting out of their dorm room!

But there is a tension within this well-meaning system.  College is where young adults journey to find their independence and privacy; promoting this maturation is part of a college or university’s purpose. Further, a net of privacy laws constrains the easy sharing of certain types of information.  But knowing the painful consequences of unchecked student struggles, many institutions work hard to find the right blend of metrics and policies to be able to intervene. 

Part of this hard work is finding the right path through that net of privacy laws.  As the member writes, the biggest privacy law of all, FERPA,[2] does allow such inter-departmental sharing,[3] and even parental notification about safety concerns, when the time is right.  It does this through both application of the law, and “FERPA waivers.”

But in New York, FERPA is not the only privacy rule to apply[4] to these information-sharing systems.  As the member states, New York’s Civil Practice Laws and Rules (the “CPLR”) §4509 (“4509”) also governs a student’s records—at least, their library records.  And it sets the bar high.

4509 is a short law where every word matters, so it is worth quoting in full here: 

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. [emphasis added]

As you can see, “college and university libraries,” even though they are part of larger institutions, are clearly covered by this law.

So how does 4509 impact the member’s question?

First, every library (academic or not) should have a clear sense of what it regards as “library records.”  As can be seen in the statute, the term is not precisely defined (“including but not limited to” leaves a lot of room for argument!).  Some of the obvious ones are listed in the law (circulation records, database searches, copy requests) but unnamed others could be just as vital to privacy (use of a 3-D printer, security footage covering the circulation desk, and in the member’s example, the use of research appointments).   And still others activities that use the library may or may not apply (classes conducted in the library, but not part of library programming, are arguably excludable).

To protect the records as required by law, a library must know precisely what records it must protect.  This is why, just like a public or association library, a college or university library should have a “Privacy of Library Records” policy clearly showing where it draws the line. Such a policy should also have a “subpoena response protocol,” so the library can train staff on how to receive internal and external third-party demands for information. 

And in a perfect world, this college or university “Privacy of Library Records Policy” should be known and supported by the institutional officer who oversees the library (a Provost or Academic VP).  This officer’s authority, from time to time, may be needed to ensure the policy is respected by campus safety officers, student disciplinary administration, and any other department that might want library records in service of another institutional purpose.  Librarians should not hold the 4509 lines alone!

Now, back to the member’s scenario.  Once a library knows precisely where it “draws the line” on library records, the member’s instinct is right: any access to information that falls within the institution’s definition of “library records” should be either denied, or allowed only as the law requires: via a signed consent from the user/student.

I know, just what every student wants—to fill out another form!  But these 4509 consents, just like a “FERPA Waiver,” are not only mechanisms to ensure legal compliance, they are a chance to educate students about their right to privacy. 

For instance, the consent form (I imagine it would be a digital click-through on a password-protected student account, but it could be a paper form) could say:

“The privacy of library records is protected by the law in New York State (CPLR 4509).  Your enrollment in the [SYSTEM NAME] will ask the library to disclose certain library records that are protected by this law.  As a library user at an library in New York, you have the right to keep your library records private.  A list of what [LIBRARY NAME] considers to be library records is here [link to policy].  If you would like to consent to the [NAME OF LIBRARY] sharing your library records with only [SYSTEM], please check the below consent:

[ ] I am at least 18 years of age, and consent to the limited sharing of my library records for purposes of sharing the information with the [SCHOOL NAME] [SYSTEM].  This consent does not allow sharing my library records, even within the school, for any other purpose.  No consent to share the records with external entities is give. 

I understand I will need to renew this consent every fall semester, and that I may revoke this consent at any time.

Of course, there is no legal requirement for annual renewal, but it is worth considering.  A year is a long time in the life of the typical undergraduate student, who may enter college with one set of civil rights values, and leave with another. With an annual renewal, the library not only complies with the law, but educates the student about their privacy rights on an annual basis.

So, to address the member’s final questions:

Have we crossed any lines here?

No.  By thinking about this issue during the planning phase of the system, you are making sure the lines are bright and well-defined.

Do we even need the opt-in statement?

You could call it that, but I recommend calling it a “4509 Consent.”  That would build awareness of this important law in our future leaders (and librarians).  Of course, as a lawyer, I may be biased as to how important that is (but it’s really important!).

Is this something clear or fuzzy/grey?

Not so long as your library has a clear and routinely evaluated policy defining what it regards as “library records.”  This can be tough at an integrated institution, where so much information technology crosses through different sectors.  But it should be done.

What should we be considering that we haven't thought of?  

I think you should consider buying yourself a nice cup of coffee or tea for doing your part to support a commitment to personal privacy in the United States of America and State of New York.  Unlike in the European Union, our privacy currently risks death by a thousand cuts.  Every bit of armor counts. 

Thanks.

And thank you.



[1] I was a general counsel at a university for ten years…even as the in-house lawyer, I had a few of these moments.

[2]  The “Family Education Rights Privacy Act,” a federal law often blamed for institutions not telling families about students’ struggles sooner. 

[3] If this answer were to address those bases, it would be about ten pages longer, so we’ll just assume the system in this scenario complies with all the regulations and guidance listed here: https://studentprivacy.ed.gov/audience/school-officials-post-secondary.

[4] Neither is CPLR 4509.  These systems have to navigate HIPAA, state health and mental health laws, and depending on what they do, even PCI and defamation/libel concerns.

Tags: Laws, Policy, Privacy, FERPA

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