RAQs: Recently Asked Questions

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: 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

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