State Attorney in Florida complies with library request to get a court order for circulation records

Mary,

Just thought I'd let you know about another subpoena we received for patron circulation records. If you recall, the last time I received a subpoena and challenged it, I was surprised to learn that this one of the first times in Florida a motion to quash a subpoena for library records had been filed.

In this case, we asked the State Attorney (in a different judicial circuit) to rescind the subpoena and provide a court order. The State Attorney had no problem with the request and within 3 weeks we had a court order directing us to turn over information.

This was different than our previous situation where we had to file a motion to quash and then have a judge direct me to release records.

It seems, despite the reluctance from our own city and county attorneys to challenge subpoenas, State Attorneys are willing to follow a process to ensure the protected information they request is obtained without the possibility of appeal.

Best wishes,

Sol

Sol M. Hirsch, Director
Alachua County Library District

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From: Mary Minow
Sent: Friday, April 11, 2008 12:56 PM
To: Sol Hirsch
Subject: RE: Another Subpoena for Records

This is a great story.  Was it really circ records or was it internet use records? Just curious, but do you know what the case was (esp was it trying to establish a time/place for a suspect, or was it centered on the content of the items circulated)?

I'd love to post this on my blog. May I? As is?

Best,
Mary

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Mary,

The request was for circulation records only seeking titles and dates checked out and returned. We couldn't comply with the request for the entire time period (one year) because we purge satisfied circulation transactions quarterly. We had about 5 months worth of circulation records available.

Too bad we may lose the person as a patron. He checked out a lot of materials and returned them all on time!

No problem with placing it on the blog.

Best wishes,

Sol

Sol M. Hirsch, Director
Alachua County Library District

Comments

[Alan]

As far as I can tell from the discussion, the "9/11 terroist" incident is not on point. According to news stories, the librarian recognized one of the terrorists as a library patron and informed police. This does not seem to be a violation of a law that requires a "proper judicial order" for the release of circulation records.

Presumably when the authorities showed up at the library to investigate, they would have to have such an order. There is nothing in the news about the event that would indicate that they did not.

A law that requires law enforcement to get a "proper judical order" before conducting a search is obviously a proper check on police power, respecting the need to enforce the law and our citizens' first amendment rights and right to privacy.

[Dan Kleinman]

This is related. It's from Vermont:
http://www.rutlandherald.com/apps/pbcs.dll/article?AID=2008236626235

[Dan Kleinman]

Well. I can say that I really do admire you for even being aware of these thorny legal issues in the first place, then for applying them in the manner you have. You show respect for everyone by making sure everyone's following existing procedure. Bravo.

With regard to terrorism cases, I would obey the law as well. I just question how and why a law could be written that would protect the activities of terrorists in the first place. If I were to find that American Library Association agenda was in any way involved and that it did not match the interests of the people of Florida, I would consider amending the law to protect Floridians (Americans) and not terrorists.

[Sol M. Hirsch]

These are great discussion points.

Let me start by saying, I will, in all legal matters consult with our attorney and follow the law. The clearer the statute, the faster and easier it is to comply and for law enforcement to proceed with their investigations. As I have reminded police officers who have asked for confidential library records as part of their investigation (no court order or subpoena), if I release the records contrary to the manner prescribed in the Florida Statutes, any evidentiary value might be lost because a legal process to obtain the information was not followed.

In Florida the process by which I can release confidential library registration and circulation records is not clear. The only guidance in defining a "proper judicial order" comes from an opinion of the Attorney General, not the legislature or the courts. There has been no court action to test the opinion. It is my understanding that the requirement to release confidential records varies by state, some require a court order, some a subpoena.

The Florida state legislature, which created the statute could have simply defined the requirement to be a subpoena, a term used in other parts of the Florida Statutes. If that were the case, I would have readily complied with the subpoena. One has to consider the intent of the legislature, which deliberately chose not to use the term subpoena. I am sorry I do not know the history of the legislative act.

Another question raised was what do our patrons expect in terms of confidentiality. As librarians, we are trained to provide information and service in an impartial manner. I think that extends to library records. That's one reason our services are invaluable. In the judicial system, the judges provide impartiality when determining the merits of a legal action, not the prosecutors or the defenders. So, with a less than clearly defined definition of a "proper judicial order" in the statutes, I prefer an impartial court to rule on exempting confidential records rather than a State Attorney in the role of prosecutor.

If you're asking for my personal opinion when it comes to protecting library records in terrorism related cases, I would follow the same principles. I would obey the law and be especially concerned with following it precisely so as not to jeopardize the use of any potential evidence.

By the way, the decision by the State Attorney of one judicial circuit to obtain a court order at our request does not set a standard or legal precedent throughout the state.

[Dan Kleinman]

Really very interesting. Both the facts of the case and our ability to discuss them here thanks to this excellent blog.

It seems, if I am reading this correctly, that the State Attorney voluntarily rescinded the subpoena at your request and obtained a court order. That does not mean from now on a court order is needed. The State Attorney cannot change the law, although it could continue to obtain a court order upon request.

Please explain why obtaining a court order is a higher standard than obtaining a subpoena (though I think everyone knows).

More importantly, please explain why patrons expect a library to demand a court order when the law requires only a subpoena. I ask this because you said, "the Library District protected its circulation and registration records to the highest standard which we feel our patrons expect." What makes you feel your patrons expect more than the law allows?

I ask this because in another famous Florida librarian case, a librarian turned in a 9/11 terrorist to the police and Judith Krug of the ALA's Office for Intellectual Freedom said she should not have done that, she should have followed the law of library confidentiality. [ "A Nation Challenged: Questions of Confidentiality; Competing Principles Leave Some Professionals Debating Responsibility to Government" by David E. Rosenbaum, The New York Times, 23 Nov 2001. ] Now in your case you requested and received the ability to essentially make the law even more stringent in favor of the rights of potential criminals.

So I see a trend here. First, follow the library confidentiality law even if a 9/11 terrorist is involved. Then, require more than the law allows, again to protect library confidentiality. People in Florida might have a legitimate concern that the next move by another library in Florida might be to refuse to comply at all with police requests for information.

Part of this trend is the assumption on the part of some librarians of how they think patrons might feel, and the assumption that acting on that assumption to protect patron confidentiality is paramount to the actual law currently on the books. One has to wonder what sets people on this trajectory.

I'd be interested in learning more about the library confidentiality law that should be followed, then should be made more stringent. I'd like to know how and why it is worded the way it is, who wrote it initially, were any library associations involved, why should it be used as a shield to protect terrorists, and why should it be made more stringent based on the feeling of what patrons might expect.

I know my questions sound like I am leading somewhere, but they are based on what appears here in this blog and should be open ended enough to allow for the answers to be leading somewhere as well. So here's an opportunity to explain some rather important issues that affect more states than just Florida.

[Sol M. Hirsch]

In response to the request to clarify this incident, here are the specifics. In Florida, public library registration and circulation records are confidential unless a request is made with a "proper judicial order." (FS 257.261 (3)(a)) However, there is no definition of a proper judicial order in the statutes. A number of years ago, a Florida Attorney General provided an opinion that a "proper judicial order" included a subpoena from a State Attorney. Based on that opinion, county and municipal attorneys have told public libraries served with a subpoena to comply.

About 2 years ago, the Alachua County Library District was served with a subpoena for records. At that time, I asked our attorney to file a motion to quash the subpoena. My sense was if the intent was a subpoena would suffice, then the statute would state that, as it does in other sections of the Florida Statutes. It seemed to me that the Attorney General's opinion lowered a standard implied by a "proper judicial order." The motion to quash was filed, and the judge hearing the case denied our motion and issued an order to turn over the records.

In this latest incident, the Library District was again served by a subpoena from a State Attorney. In this case, we asked the State Attorney to rescind the subpoena and obtain a court order. The State Attorney readily agreed and a court order was issued. The library complied with the records request.

It is my understanding we are the only Florida public library to insist on getting a court order for the release of protected records. In both instances, the court orders were easily obtained, the processes were not adversarial, the criminal investigation was not unduly delayed, and the Library District protected its circulation and registration records to the highest standard which we feel our patrons expect.

[Mary]

I added a link for the library's "last time" experience. The post here though is an email exchange, so no external links on the current story.

[Dan Kleinman]

I am unclear about the facts based on the above. Would someone clarify? Perhaps there are media reports or information gathering laws to link as well?