BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 445 (Simitian)
As Amended March 21, 2011
Hearing Date: March 29, 2011
Fiscal: No
Urgency: No
TW
SUBJECT
California Public Records Act: Library Records
DESCRIPTION
This bill would clarify that written and electronic patron
library records, as specified, are confidential and exempt from
public disclosure, with certain exceptions. This bill would
define 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 would also
prohibit third parties maintaining library records from
disclosing patron library information.
BACKGROUND
The California Public Records Act (CPRA), enacted in 1968,
requires public disclosure of public agency documents. The
Legislature, mindful of the 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, Stats. 1980, Ch. 519) was enacted to provide an
exemption to disclosure under the CPRA for library circulation
records. In 1986, the Legislature enacted AB 4280 (O'Connell,
Stats. 1986, Ch. 164), 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
(more)
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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. (Id.at p. 54.)
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 would
clarify 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.
CHANGES TO EXISTING LAW
Existing law , the California Public Records Act, governs the
disclosure of information collected and maintained by public
agencies. (Gov. Code Sec. 6250 et seq.) Generally, all public
records are accessible to the public upon request, unless the
record requested is exempt from public disclosure. (Gov. Code
Sec. 6254.) However, library circulation records kept for the
purpose of identifying the borrower of library materials are
exempt from disclosure under the CPRA. (Gov. Code Sec.
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
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by the individual to whom the records pertain, or by appropriate
court order. (Gov. Code Sec. 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. Sec. 2709.)
This bill would clarify 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 would provide 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 would define 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.
COMMENT
1. Stated need for the bill
The author writes:
Senator Simitian's SB 445 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 �I]nternet
(email, e-books, instant messaging, web searches etc.) �A]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
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response the Oregon Legislature revised its laws to ensure
that email addresses were protected.
2. Updating existing law to provide for electronic records
This bill would update existing privacy protections relating to
library records. Existing law provides protection for a library
patron's registration and circulation information. However, the
law has not been updated to effectively make electronic records
confidential. The author cites to a recent study of online
access at public libraries, which 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_FinalRepo
rt.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. (Id.at p. 54.) Further,
the California Library Association, a supporter of this bill,
reports that library patrons are utilizing electronic
communication with public librarians to electronically request
reference materials.
With the advent of the Internet and increased use of electronic
library resources, the author states that existing law fails to
adequately provide for privacy protection of electronic library
records. This bill would clarify that existing library record
privacy protections extend to electronic transactions made by a
library patron, including database searches and other electronic
library resources records.
Further, the author reports that public libraries are
increasingly utilizing third parties to maintain and store
library records. These records are typically stored and
maintained off site. Existing law provides protections against
the disclosure of registration and circulation information, but
existing law does not specifically apply patron use
confidentiality provisions to electronic library information
maintained or stored through a third party. This bill also
would clarify that third parties maintaining or storing patron
use information are subject to the confidentiality provisions.
3. Clarification of patron information subject to confidentiality
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This bill would clarify that written or electronic library
patron information provided by the patron for the purpose of
gaining access to library resources and information regarding
patron use of library resources shall not be disclosed by public
libraries or third parties that maintain or store patron
information on behalf of public libraries. Although existing
law prohibits disclosure of registration and circulation
records, the sponsor of this bill reports that online marketers
have approached Florida libraries for the purpose of gathering
library patron emails. This bill would specifically list the
information that shall not be disclosed, which would include the
patron's name, address, telephone number, and email address
provided by the patron. Although existing law presumably makes
this information confidential, it is beneficial to detail the
information that should not be disclosed.
Support : California Association of Library Trustees and
Commissioners; California Library Association
Opposition : None Known
HISTORY
Source : An individual
Related Pending Legislation : None Known
Prior Legislation : None Known
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