Attorney General's Opinion 1989 #017
ADMINISTRATION OF GOVERNMENT GENERALLY: VIRGINIA FREEDOM OF INFORMATION ACT: EDUCATIONAL INSTITUTIONS: CHRISTOPHER NEWPORT COLLEGE.
Official records of college library subject to inspection unless statutory exception to Act applies and is exercised by records custodian. Exceptions to mandatory disclosure requirements of Act.
July 14, 1989
The Honorable Alan A. Diamonstein
Member, House of Delegates
89 17
You ask whether certain library records are confidential, or whether they must be disclosed when a request is made by a citizen.
I. Facts
You state that the Librarian of Christopher Newport College (the "College") has questioned whether, in response to a request by newspaper reporters, local police, representatives of other governmental agencies or a citizen, he is required to disclose such library records as those showing the titles of books borrowed by a library patron, questions a library patron has asked at the reference desk, bibliographies prepared by reference desk librarians in response to specific requests for library patron assistance, and the titles of books ordered through the College library by faculty members.1
II. Applicable Statutes
The disclosure of records is governed by The Virginia Freedom of Information Act, §§2.1-340 through 2.1-346.1 of the Code of Virginia (the "Act"). Section 2.1-342(A) provides, in part, that "[e]xcept as otherwise specifically provided by law, all official records shall be open to inspection and copying by any citizens of this Commonwealth during the regular office hours of the custodian of such records." The term "official records" is broadly defined in §2.1-341 as
all written or printed books, papers, letters, documents, maps and tapes, photographs, films, sound recordings, reports or other material, regardless of physical form or characteristics, prepared, owned, or in the possession of a public body or any employee or officer of a public body in the transaction of public business.
Section 2.1-342(A)(4) also provides that "[p]ublic bodies shall not be required to create or prepare a particular requested record if it does not already exist." Certain statutory exceptions to the mandatory disclosure requirement of §2.1-342(A) are enumerated in §2.1-342(B), which provides, in part:
The following records are excluded from the provisions of this chapter [Chapter 21 of Title 2.1] but may be disclosed by the custodian in his discretion, except where such disclosure is prohibited by law:* * *
8. Library records which can be used to identify both (i) any library patron who has borrowed material from a library and (ii) the material such patron borrowed.
* * *
17. Data, records or information of a proprietary nature produced or collected by or for faculty or staff of state institutions of higher learning, other than the institutions' financial or administrative records, in the conduct of or as a result of study or research on medical, scientific, technical or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or a private concern, where such data, records or information have not been publicly released, published, copyrighted or patented.
Section 2.1-340.1 requires that "[a]ny exception or exemption from applicability shall be narrowly construed in order that no thing which should be public may be hidden from any person."
The College is established pursuant to Chapter 5.3 of Title 23, §§23-49.23 through 23-49.33. A portion of the operating expense of the College is funded by the General Assembly. See Ch. 800, 1988 Va. Acts 1280, 1396-97.
III. Official Records Subject to Inspection Unless Statutory Exception Applies and Is Exercised by Records Custodian
The College is a "public body" and, as a result, is subject to the provisions of the Act, since it is an agency of the Commonwealth "supported . . . principally by public funds." Section 2.1-341.
The official records of the College library, including circulation records, reference desk records, bibliographies prepared by library employees and book orders, therefore, are subject to inspection and copying by any citizen unless one or more of the exceptions to mandatory disclosure in §2.1-342(B) applies to the information requested and the custodian of the records elects to exercise a statutory exception. The Act does not require that any official records be withheld from public disclosure. See id.
IV. Books Borrowed from Library and Bibliographies or Reference Questions Excepted from Mandatory Disclosure
Library records showing the titles of books borrowed by a library patron, research questions and information provided to library patrons by library staff, bibliographies prepared by reference desk librarians in response to specific requests for library patron assistance, and the titles of books ordered through the College library by faculty members 1 all constitute records which are excepted from the mandatory requirements of the Act pursuant to §2.1-342(B)(8). Each of these records can be used to identify the material borrowed from a library by a library patron. The bibliographies you describe also may be excepted from mandatory disclosure pursuant to§ 2.1-342(B)(17), depending on the nature of the project for which the bibliography was requested and for whom the information was collected. It is my opinion, therefore, that the College librarian is not required by the Act to disclose (1) library records showing the title of books borrowed by a library patron, (2) library records detailing research questions and information provided to library patrons by library staff, (3) bibliographies prepared by reference desk librarians in response to specific requests for library patron assistance, or (4) the titles of books ordered through the College library by faculty members.
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Footnotes:
1. For purposes of this Opinion, I assume that the books ordered through the College library by faculty members remain the property of the library.
