Originally appeared in the CAS Weekly Newsletter
Dear Legal Mailbag:
I am a library media specialist in a public school. My school has opted to cut the library para-educator position, so I have had to recruit community and student volunteers to do the work that was formerly done by an employee. The volunteers re-shelve books, create displays, and assist student and teacher patrons. They also check books in and out to students and staff.
A librarian group that I belong to recently discussed the idea that allowing volunteers access to patron circulation records (in the check-out process) is a violation of patron privacy. Is this true?
Concerned for Confidentiality
You raise a valid point. However, Legal Mailbag would rephrase the concern to say that having volunteers involved in the check-out process “implicates” (rather than “violates”) patron privacy interests. As a matter of public policy and the law, persons who utilize library services have a privacy interest in the circulation records related to the books they check out. Public access to circulation records could have a chilling effect on library use because mean-spirited people could seek to embarrass others by publicizing certain of their library book choices. Accordingly, persons with access to library circulation records must keep such information confidential.
The privacy interest in public library circulation records is codified in Connecticut law. Conn. Gen. Stat. § 11-25(b) provides that such records are confidential notwithstanding the general rule in the Freedom of Information Act that records maintained by public agencies are subject to public disclosure. That statute provides:
(b) (1) Notwithstanding [the FOIA statute giving the public access to public records], records maintained by libraries that can be used to identify any library user, or link any user to a library transaction, regardless of format, shall be kept confidential, except that the records may be disclosed to officers, employees and agents of the library, as necessary for operation of the library.
(2) Information contained in such records shall not be released to any third party, except (A) pursuant to a court order, or (B) with the written permission of the library user whose personal information is contained in the records.
(3) For purposes of this subsection, “library” includes any library regularly open to the public, whether public or private, maintained by any industrial, commercial or other group or association, or by any governmental agency, but does not include libraries maintained by schools and institutions of higher education. (Emphasis added).
Interestingly, the statute expressly excludes “libraries maintained by schools.” But as is often the case, there is more to the story.
The circulation records as to student library patrons are confidential under the Family Rights and Privacy Act (FERPA). “Educational records” subject to FERPA’s confidentiality requirements are defined as follows:
(a) The term means those records that are:
(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.
34 C.F.R. § 99.1. Clearly, circulation records showing what books a student has checked out are FERPA-protected records that would be both “directly related to a student” and “maintained” by your school district.
So far, so good, but Legal Mailbag understands that there is one more aspect to your question to answer – can volunteers access FERPA protected records? As is the case with most legal questions, the answer is “it depends.” However, here the facts underlying your question support the conclusion that indeed these volunteers may have access to circulation records protected by FERPA.
The FERPA regulations provide that volunteers may be considered “school officials” entitled to access FERPA-protected records without parent consent under certain circumstances:
(B) A contractor, consultant, volunteer, or other party to whom an agency or institution has outsourced institutional services or functions may be considered a school official under this paragraph provided that the outside party –
(1) Performs an institutional service or function for which the agency or institution would otherwise use employees;
(2) Is under the direct control of the agency or institution with respect to the use and maintenance of education records; and
(3) Is subject to the requirements of § 99.33(a) governing the use and redisclosure of personally identifiable information from education records.
34 C.F.R. § 99.31(a)(1)(i)(B). (Emphasis added).
Given that the volunteers are performing services on behalf of your school district (checking books in and out) under your direction, they may access the FERPA-protected circulation records. However, the key is that these volunteers must understand that it is a privileged disclosure for the purpose of assisting library operations, and that they may not disclose this information further. FERPA requires that schools inform persons to whom such disclosures are made of their obligation to use such information only for the designated purpose and not to disclose such information further. 34 C.F.R. § 99.33(d).
Given all that, Legal Mailbag suggests that you inform volunteers in writing of their duty to maintain the confidentiality of circulation records (and any other student records) to which they may have access as part of their volunteer duties. Indeed, you may sleep better if you put that caution in writing and have the volunteers sign off to acknowledge that they understand their obligation.