BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   SB 445|
          |Office of Senate Floor Analyses   |                         |
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                                 THIRD READING


          Bill No:  SB 445
          Author:   Simitian (D)
          Amended:  03/21/11
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  3-0, 3/29/11
          AYES:  Evans, Blakeslee, Leno
          NO VOTE RECORDED:  Harman, Corbett


           SUBJECT  :    California Public Records Act:  library records

           SOURCE  :     Author


           DIGEST  :    This bill clarifies that written and electronic 
          patron library records, as specified, are confidential and 
          exempt from public disclosure, with certain exceptions.  
          This bill defines patron use records to include any written 
          or electronic records used to identify the patron in 
          connection with the use of public library resources and 
          materials.  This bill also prohibits third parties 
          maintaining library records from disclosing patron library 
          information.

           ANALYSIS  :    Existing law, the California Public Records 
          Act (CPRA), governs the disclosure of information collected 
          and maintained by public agencies.  (Government Code 
          Section 6250 et seq.)  Generally, all public records are 
          accessible to the public upon request, unless the record 
          requested is exempt from public disclosure.  (Government 
          Code Section 6254.)  However, library circulation records 
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          kept for the purpose of identifying the borrower of library 
          materials are exempt from disclosure under the CPRA.  
          (Government Code Section 6254(j).)  This exemption does not 
          apply to records of fines imposed on the borrowers.  (Id.)

          Existing law states that registration and circulation 
          records of any public library shall remain confidential and 
          shall not be disclosed to any person, local agency, or 
          state agency except to a person acting within the scope of 
          his/her duties within library administration, to a person 
          with written authorization by the individual to whom the 
          records pertain, or by appropriate court order.  
          (Government Code Section 6267.)

          Existing federal law, the Patriot Act, authorizes 
          disclosure of patron library records created using a 
          library's electronic communication service, as defined, in 
          special circumstances when authorities have reason to 
          suspect a library patron of terrorist activity and upon 
          judicial review.  (18 U.S.C.S. Section 2709.)

          This bill clarifies that electronic or written patron use 
          information and borrowing records are restricted from 
          disclosure by public libraries and third parties that store 
          or maintain such records on behalf of public libraries, 
          with the same Government Code exceptions described above.

          This bill provides that written and electronic information 
          provided by the library patron for the purpose of borrowing 
          or using library materials and used to identify the library 
          patron, including but not limited to, the patron's name, 
          address, telephone number, or email address, is 
          confidential. 

          This bill defines patron use borrowing information or use 
          of library resources to include database search records, 
          borrowing records, class records, and any other personally 
          identifiable uses of library resources information requests 
          or inquiries.

           Background
           
          The CPRA, enacted in 1968, requires public disclosure of 
          public agency documents.  The Legislature, mindful of the 

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          right of personal privacy, carved out exemptions from 
          disclosure for various public agency documents.  In 
          response to reports that names and addresses of police 
          personnel were being gathered through library records, SB 
          604 (Roberti), Chapter 519, Statutes 1980, was enacted to 
          provide an exemption to disclosure under the CPRA for 
          library circulation records.  In 1986, the Legislature 
          enacted AB 4280 (O'Connell), Chapter 164, Statutes 1986, in 
          which registration and circulation records of public 
          libraries were recognized as private information in need of 
          exemption from public disclosure. 

          In 2001, after the September 11, 2001 attacks, Congress 
          enacted the USA Patriot Act to provide for disclosure of 
          information relevant to terrorist activities.  The Patriot 
          Act was amended in 2005 and recently extended to July 2011. 
           Under the Patriot Act, library records are subject to 
          disclosure to federal agencies upon a showing of suspicion 
          of terroristic activities and issuance of appropriate court 
          order.  This exception to confidentiality exists under 
          California law; library records are subject to disclosure 
          pursuant to court order.  

          A recent study of online access at public libraries 
          reported that nearly one in three Americans age 14 or older 
          (roughly 77 million people) used a public library computer 
          or wireless network to access the Internet in 2009.  (See 
          Gates/IMLS/Univ of Washington Study:  Opportunity for All:  
          How the American Public Benefits from Internet Access at 
          U.S. Libraries (March 2010) 
          http://tascha.washington.edu/usimpact/ 
          documents/OPP4ALL_FinalReport.pdf, p. 32.)  Electronic 
          library resources are increasingly used for education, 
          employment searches, health information, government and 
          legal resources, community engagement, financial 
          management, and social connections.  

          Due to the public's increased use of electronic library 
          resources, libraries are increasingly utilizing third 
          parties to store and maintain electronic library records.  
          This bill clarifies that written or electronic patron use 
          records, as defined, stored or maintained by public 
          libraries or third parties on behalf of public libraries 
          should not be publicly disclosed, with certain exceptions.

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           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No   
          Local:  No

           SUPPORT  :   (Verified  4/4/11)

          American Civil Liberties Union
          California Association of Library Trustees and 
          Commissioners
          California Library Association

           ARGUMENTS IN SUPPORT  :    According to the author's office 
          states that this bill updates the outdated law by changing 
          the term "registration and circulation records" to "patron 
          use records" in aims of including all online resources used 
          by patrons at libraries.  The term "registration and 
          circulation" was written in the 1980's before the use of 
          the ÝI]nternet (email, e-books, instant messaging, web 
          searches etc.)   ÝA]s a result the terminology is dated and 
          only encompasses hard copy library books.
          In her professional work as a library law consultant, the 
          constituent who submitted this idea has learned that online 
          marketers asked Florida libraries for registration 
          information, specifically to gather email addresses.  In 
          response the Oregon Legislature revised its laws to ensure 
          that email addresses were protected.


          RJG:do  4/4/11   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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