REESE LIBRARY CONFIDENTIALITY POLICY and
PROCEDURES FOR LAW ENFORCEMENT VISITS AND COURT ORDERS*
Adapted by Reese Library, Augusta State University in January 2005 using the following two policies:
"Policy on Confidentiality of Library Records and Procedures for Law Enforcement Visits and Receipt of Court Orders" Reviewed by University of Georgia Legal Affairs February 2004; available at http://www.libs.uga.edu/staff/confidentialrecordspolicy.html
"Procedures for Law Enforcement Visits and Court Orders" Approved by Georgia State University Office of Legal Affairs 08/01/03; available at: Law Enforcement Procedures
Augusta State University's Reese Library policy on confidentiality directly reflects Georgia Code 24-9-46 which states:"(a) Circulation and similar records of a library which identify the user of library materials shall not be public records but shall be confidential and may not be disclosed except:
To members of the library staff in the ordinary course of business
2.Upon written consent of the user of the library materials or the user's parents or guardian if the user is a minor or ward; or
Upon appropriate court order or subpoena.
(b) Any disclosure authorized by subsection (a) of this Code section or any unauthorized disclosure of materials made confidential by that subsection (a) shall not in any way destroy the confidential nature of that material, except for the purpose for which an authorized disclosure is made. A person disclosing material as authorized by subsection (a) of this Code section shall not be liable therefore."
NOTICE REGARDING THE U.S.A.PATRIOT ACT
The "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act" of 2001 USA Patriot Act") was passed by Congress in October 2001. Although confidential library records have always been subject to disclosure pursuant to lawful process, the USA PATRIOT Act expands the authority of local, state and federal law enforcement to gain access to educational and library records, including stored electronic data and communications. Therefore, this law may override state library confidentiality laws protecting library records. This law may also apply to university and other records in the custody of the Library's archives.
Augusta State University recognizes that Reese Library's circulation records and other records identifying the names of library users with specific materials and/or internet use are confidential in nature. No such confidential information shall be made available to any individual or office of the university, agency of state, federal or local government, or to any individual not specifically authorized by the Library Director (or in his absence, the Associate Director) for legitimate business purposes, except where the person whose confidential information is to be released consents or pursuant to such process, order, warrant or subpoena as may be authorized under the authority of, and pursuant to, federal, state, or local law relating to civil, criminal or administrative discovery procedures or legislative investigating power.
An exception to this policy provided for by the USA PATRIOT Act allows voluntary disclosure for emergency situations, which are likely to be rare in the library. Should a staff member, in the course of business reasonably believe he has accessed information about an emergency involving immediate danger of death or serious physical injury, s/he should contact Public Safety immediately; then contact the Library Administrative Office, or (if after regular business hours) any member of the Library Administrative Staff and the supervisor in the unit.
PROCEDURES FOR LAW ENFORCEMENT VISITS AND COURT ORDERS
1. Procedures if approached by law enforcement unaccompanied by an Augusta State University Public Safety Officer, but with identification and a court order in the form of a SEARCH WARRANT:
- Staff should immediately ask for identification and a court order if they are approached by an agent or officer. If the agent or officer has no identification or court order with them or is not accompanied by an Augusta State University Public Safety Officer, follow the steps outlined in #4 below.
- A search warrant is executable immediately, unlike a subpoena. The agent or officer may begin a search of library records as soon as a library employee is served with the court order.
- Before the search begins, the employee should ask if s/he can call his/her department head, who will contact the Library Administrative Office, who will then contact Public Safety in order to allow Public Safety an opportunity to examine the search warrant and to assure that the search conforms to the terms of the search warrant. The officer may or may not agree to the request because, legally, the search may begin immediately.
- If the visit occurs outside regular business hours, the employee should contact his/her supervisor at home and Public Safety. If the supervisor is not available, the employee should contact the department head at home. If the department head is not available, the employee should contact the Library Director, or in his absence, the Associate Director. If nobody is at home, the employee should contact the Vice-President for Business and Student Services, who is the ASU Responsible Cybersecurity Official (RCO) at home.
- The employee should cooperate with the search to ensure that only the records identified in the warrant are produced and that no other users' records are viewed or scanned.
2. Procedures if the court order is a SEARCH WARRANT issued under the Foreign Intelligence Surveillance Act (FISA) ( USA Patriot Act Amendment):
- The employee should follow the procedures for a regular search warrant listed above. However, a search warrant issued by a FISA court also contains a "gag order." That means that no person or institution served with the warrant can disclose (outside the chain of command elaborated above) that the warrant has been served or that records have been produced pursuant to the warrant. However, the employee should still contact his/her supervisor, department head, or Library Director when served with the court order.
- The library and its staff must comply with this order. No information can be disclosed to any other party, including the patron whose records are the subject of the search warrant.
- The gag order does not change a library's right to legal representation during the search. The library can still seek legal advice concerning the warrant and request that Public Safety and the RCO be present during the actual search and execution of the warrant. The officer may or may not agree to the request because, legally, the search may begin immediately.
3. Procedures if approached by law enforcement with identification and a court order in the form of a SUBPOENA:
- The employee should give the subpoena to the department head, who will deliver it to the Library Administrative Office. The Library Administrative Office will be responsible for contacting Public Safety.
- If the visit occurs outside regular business hours, the employee should give the subpoena to the supervisor as soon as possible during the next regular business day. The supervisor should give it to the department head who will deliver it immediately to the Library Administrative Office. The Library Administrative Office will be responsible for contacting Public Safety.
4. Procedures if approached by law enforcement WITHOUT IDENTIFICATION OR A COURT ORDER or is unaccompanied by an Augusta State University Public Safety Officer:
- If the agent or officer does not have a court order compelling the production of records, the staff member should inform the agent or officer that library users' records are not available except when a proper court order in good form has been presented to the library.
- Without a court order, neither the FBI nor local law enforcement has authority to compel cooperation with an investigation or require answers to questions, other than the name and address of the person speaking to the agent or officer.
- If the agent or officer persists, or makes an appeal to patriotism, the staff member should explain that, as good citizens, the library staff will not respond to informal requests for confidential information, in conformity with professional ethics, First Amendment freedoms, and state law.
- The staff member should inform his/her supervisor about the visit. The supervisor should inform the Library Administrative Office, ASU Public Safety and the Office of the Vice-President for Business and Student Services that such a visit took place.
*Definitions of Terminology
Court order: an order by a legally recognized court of law that requires a party to do or to abstain from doing a specific act. Both a search warrant and a subpoena are court orders.
Search warrant: a written order issued by a judge that directs a law enforcement officer to search a specific area for a particular piece of evidence.
Subpoena: a document issued by the court to compel a witness to appear and give testimony or to procure documentary evidence in a proceeding.
Reviewed by Augusta State University's Vice-President for Business and Student Services, the Chief of Public Safety and the Library Director in January 2005.