FOI Advisory Council Opinion AO-26-03

December 8, 2003

Mr. Roderick R. Ingram
Associate City Attorney
Virginia Beach, Virginia

The staff of the Freedom of Information Advisory Council is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your e-mail of October 24, 2003.

Dear Mr. Ingram:

You have asked a question concerning access to library records under the Virginia Freedom of Information Act (FOIA). Specifically, you indicate that the City of Virginia Beach plans to implement a system whereby library patrons would be required to swipe their library cards through a card reader in order to access the computer terminals available at the library. This would create a record of the Internet sites visited by the particular library patron. You ask if this record would be exempt from public disclosure under FOIA.

Subsection A of § 2.2-3704 of the Code of Virginia states that [e]xcept as otherwise specifically provided by law, all public records shall be open to inspection and copying. The policy of FOIA found at subsection B of § 2.2-3700 requires that the provisions of [FOIA] shall be liberally construed to promote an increased awareness by all persons of governmental activity...[a]ny exemption from public access to records or meetings hall be narrowly construed. Subdivision A 10 of § 2.2-3705 exempts [l]ibrary records that can be used to identify both (i) any library patron who has borrowed material from a library and (ii) the material such patron borrowed. The Office of the Attorney General of Virginia has interpreted this exemption to include more than just a list of books borrowed by a particular patron. The Attorney General opined that the exemption at subdivision A 10 of § 2.2-3705 would also allow a library to withhold records indicating questions that a patron has asked at a reference desk and bibliographies prepared by reference librarians in response to patron requests for assistance.1

Generally, a library is a repository of resources representing all points of view on a variety of subjects. Because of the nature of materials available, library patrons have a privacy interest in the resources they choose to examine. Maintaining this privacy ensures academic and intellectual freedom and recognizes that there is not necessarily a relationship between what an individual reads and what that individual believes or how that individual will act. In conducting research, a library patron may find it necessary to examine all sides of a topic, including unpopular viewpoints or ideas not accepted by mainstream society, to fully understand that issue. Making public a list of materials that the patron borrowed may lead to fear of retaliation or ridicule if some of those materials represent unpopular ideas. The opinion of the Attorney General mentioned above implicitly upholds the policies underlying the library exemption by giving a list of a patron's reference questions the same protection from disclosure as a list of books borrowed by that same patron.

It is also important to note that the exemption at subdivision A 10 of § 2.2-3705 was enacted in 1979, and the language of the amendment has not changed in 24 years.2 At the time of the enactment, library resources were primarily limited to books, magazines, and other items that could be physically borrowed and taken out of the library. Computers were not routinely used in the course of business, and the Internet was largely unknown. In addition to lending tangible reference items, libraries today also offer patrons access to computers to conduct research on the Internet. The information found on the Internet is not a tangible medium that can be borrowed and returned, but for an individual who does not own a computer, libraries offer access to this research tool. This is analogous to a library offering access to a book to which a patron does not otherwise have access. The policy interests in protecting what a patron researches remain the same whether the patron borrows a book, asks the reference librarian for assistance, or uses the Internet on a library computer. The first two instances are protected by the library exemption. Advances in technology should not force exemptions to be construed so as to result in an inconsistent application of the intent of the law. Therefore, the exemption at subdivision A 10 of § 2.2-3705 should be interpreted to allow a library to withhold records identifying any patron who has used the library's computer terminals and the Internet sites visited by that patron.

Thank you for contacting this office. I hope that I have been of assistance.

Sincerely,

Maria J.K. Everett
Executive Director

11989 Op. Atty. Gen. Va. 17. The exemption was initially found at subdivision B 7 of § 2.1-342.
21979 Virginia Acts of Assembly ch. 682.