Oregon State weakens library privacy policy – will ALA approve?

5/11/2015 update:

The new policy, apparently rushed through in response to the UO archives release, is here:

Unless required by law, patron information is not to be given to non-library individuals, including parents, friends, professors, university administrators, police, FBI, university security staff, or the CIA.

The old policy said:

Patron information is not to be given to non-library individuals, including parents, friends, professors, university administrators, police, FBI, university security staff, or the CIA. Only a court order can require the disclosure of patron records.

The question is who decides what is required by law. The American Library Association’s recommended policy is very clear – nothing should be disclosed until a court requires it:

The Council of the American Library Association strongly recommends that the responsible officers of each library, cooperative system, and consortium in the United States:

1. Formally adopt a policy that specifically recognizes its circulation records and other records identifying the names of library users to be confidential. (See also ALA Code of Ethics, Article III, “We protect each library user’s right to privacy and confidentiality with respect to information sought or received, and resources consulted, borrowed, acquired or transmitted” and Privacy: An Interpretation of the Library Bill of Rights.)

2. Advise all librarians and library employees that such records shall not be made available to any agency of state, federal, or local government except pursuant to such process, order 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 investigative power.

3. Resist the issuance of enforcement of any such process, order, or subpoena until such time as a proper showing of good cause has been made in a court of competent jurisdiction. 1

1 Note: Point 3, above, means that upon receipt of such process, order, or subpoena, the library’s officers will consult with their legal counsel to determine if such process, order, or subpoena is in proper form and if there is a showing of good cause for its issuance; if the process, order, or subpoena is not in proper form or if good cause has not been shown, they will insist that such defects be cured.

At UO, Library Dean Adriene Lim released the records because the university’s interim general counsel Doug Park asked her to. It appears that Oregon State is now ready to do the same. Will the ALA quietly go along with this?

5/6/2015: Proposed UO Library privacy policy lets admins snoop through circulation records, Coltrane won’t release Walkup report, Library Dean Adriene Lim won’t let ALA release her emails or letter on archives

This has some interesting parallels to the debate over the Counseling Center’s privacy policy.

Oregon State University’s Library Privacy Policy was pretty strong, at http://osulibrary.oregonstate.edu/borrowing/confidentiality (emphasis added):

Confidentiality of Records

Policy on Disclosure of Patron Records

The Oregon State University Libraries follow Oregon state law, which exempts libraries from public disclosure of “the records of a library, including circulation records, showing use of specific library material by a named person or consisting of the name of a library patron together with the address or telephone number, or both, of the patron.” (ORS 192.502, 22)

Application

Patron information is strictly confidential. It is for the use of library staff only; it can, of course, be divulged to the patron. Patron information is not to be given to non-library individuals, including parents, friends, professors, university administrators, police, FBI, university security staff, or the CIA. Only a court order can require the disclosure of patron records. The university librarian is responsible for compliance with such orders.

The UO Library Committee is working on a new Privacy Policy. The current draft opens the barn door for curious administrators, and gives Dean Lim cover for her decision to give my archives circulation records to Doug Park, on the basis of a thin allegation of an “unlawful release” of a memo from his predecessor recommending that the UO administration dissolve the UO Senate:

From: Adriene Lim <alim@uoregon.edu>
Date: May 6, 2015 at 8:41:41 AM PDT
Subject: Revised Privacy Policy draft, after final ULC edits

Dear ULC members:

Attached is the revised Privacy Policy draft, dated 5/6/15, which incorporates the following edits that we discussed at our meeting yesterday:

10. Violations of Policies and Laws Prohibited and Not Protected

Users must comply with established institutional policies and with the law while using the Libraries’ resources and services. Nothing in this statement prevents the Libraries from performing its duties in relation to: enforcement of established University or library rules or policies; compliance with legal obligations; protection of the Libraries’ facilities, network and equipment from harm; or prevention of the use of the Libraries’ facilities and equipment for illegal purposes. When a violation of law or established university or library policy is suspected by the Libraries, the Libraries reserves the right to electronically monitor its public computers and network, and/or reveal a user’s identity to institutional authorities and/or law enforcement. Staff members are authorized to take immediate action to protect the security of library users, staff, collections, data, facilities, computers, and the network.

Please let me know if there are any questions or concerns about the edits. Thank you for your assistance and support with this draft.

Sincerely,

Adriene Lim, Ph.D., MLIS
Dean of Libraries
Philip H. Knight Chair

And President Coltrane’s public record’s office told me yesterday that they would not release the Walkup report on”The Incident”, claiming attorney-client privilege:

05/05/2015

Dear Mr. Harbaugh-

The records you requested are Attorney-Client Privileged, and as such are exempt under ORS 192.502 (9). The office considers this to be fully responsive to your request, and will now close your matter. Thank you for contacting the office with your request.

Sincerely,

Lisa Thornton
Office of Public Records
University of Oregon
Office of the President

They will sell me the HLGR and Hershner Hunter invoices though:

05/01/2015

Dear Mr. Harbaugh: 

The University of Oregon has received your public records request for “a) all billing invoices from the HLGR and Hershner Hunter law firms to the UO, dated from 1/1/2015 to the present, and b) any communications between UO President’s office or General Counsel employees and outside attorneys or consultants relevant to the preparation of the attached “Records Incident Report”. The office has at least some documents responsive to your request.  By this email, the office is providing you with an estimate to respond to your requests. 

The office estimates the actual cost of responding to your request to be $ 94.58. …

Under Gottfredson the PRO would waiver fees for requests less than $100. Meanwhile, as explained below, Lim will not let the ALA release her emails to them explaining that release.

5/5/2015: Library Dean Adriene Lim won’t let ALA release her emails or letter on archives

The background is in the Library Journal report, Faculty Rallies to Support University of Oregon Archivist by Lisa Peet, and the comments, here:

My email to Barbara Jones, Director of the American Library Association’s Office of Intellectual Freedom:

Sent: Friday, April 17, 2015 11:36 PM
To: Barbara Jones
Subject: UO presidential archives data release

Dear Ms Jones:

I am the UO professor who obtained the UO digital presidential archives, as described in the LJ story here: http://lj.libraryjournal.com/2015/04/industry-news/faculty-rallies-to-support-university-of-oregon-archivist/

I am writing to request a copy of the letter from you to the UO administration regarding this document release which is mentioned in the story. I would also appreciate it if you would consider also sending any documents that you were given by UO employees and which you used in preparing this letter.

I have to say I was surprised to hear about this letter. My understanding is that the ALA does not do ethics investigations, or at least that is my takeaway from the page at http://www.ala.org/advocacy/proethics/explanatory/enforcementfaq

Additionally, I was surprised that this letter was sent without any attempt to contact me or learn my side of the events.

Yours,

Bill Harbaugh
UO Prof of Economics
http://harbaugh.org

The response from Ms Jones:

On Tuesday Apr 21, 2015, at 1:03 PM, Barbara Jones <bjones@ala.org> wrote:

Dear Professor Harbaugh:

My apologies for the delay in responding to your email. I was out of the office until today.

The Office for Intellectual Freedom at the American Library Association has, for almost 50 years, been a resource for those who wish information on ethical and intellectual freedom issues in libraries. Our staff offers assistance to over 700 persons and institutions each year on a variety of issues, including censorship of library materials and the privacy of user records.

Neither the ALA nor the Committee on Professional Ethics undertakes any action to enforce the Code of Ethics, nor do they conduct formal investigations of any kind.

The Office for Intellectual Freedom provides its assistance under a promise of confidentiality, and it is our policy not to disclose any information about contacts with our office without the permission of those who ask for assistance. Absent that permission, we must decline your request.

Sincerely,

Barbara Jones, Director, Office for Intellectual Freedom, American Library Association

My request to UO Library Dean Adriene Lim, asking her to give the OK for Jones to release these documents:

Date: April 21, 2015 at 1:22:40 PM PDT
To: Adriene Lim <alim@uoregon.edu>, bonamici@uoregon.edu
Cc: Barbara Jones <bjones@ala.org>

Dear Dean Lim and Associate Dean Bonamici –

Over the weekend I read your comments in the updated Library Journal story by Lisa Peet, on the UO archives. I then wrote Barbara Jones the email at the bottom of this chain, saying:

I am writing to request a copy of the letter from you to the UO administration regarding this document release which is mentioned in the story. I would also appreciate it if you would consider also sending any documents that you were given by UO employees and which you used in preparing this letter.

As you can see from her response below, ALA policy is to not disclose this information without your permission.

I am writing to ask you to provide Ms Jones with that permission, so that she can send me the requested materials.

Yours,

Bill Harbaugh
UO Prof of Economics
http://harbaugh.org

No response from Lim, who also still refuses to provide related documents, unless I pay $210.63.

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10 Responses to Oregon State weakens library privacy policy – will ALA approve?

  1. Leporello says:

    Are you surprised? I expect Coltrane to do nothing until after Michael Schill arrives.

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  2. just different says:

    Invoking attorney-client privilege for the Walkup investigative report is worrisome, to put it mildly. When the state does such an investigation, the results are a matter of public record, as they should be. So now whenever UO looks into anything that they want to cover up, they’ll just hire their own lawyers to do it and claim privilege. Tell me again why dissolving OUS and forming an independent board was a good idea?

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    • Fishwrapper says:

      “Tell me again why…?” Well, from the JH perspective, you just did.

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  3. colin k says:

    Is anyone at the library or on UCL able to confirm that there is a good precedent somewhere for item 10?

    The line in 10 that seems problematic is this: “When a violation of law or established university or library policy is suspected by the Libraries, the Libraries reserves the right to electronically monitor its public computers and network, and/or reveal a user’s identity to institutional authorities and/or law enforcement. ”

    But isn’t this in clear tension with the following line in item 5 (which is lifted from the ALA Model Privacy Policy) that was the basis for this draft: “We will not make library records available to any agency of state, federal, or local government unless a subpoena, warrant, court order, or other investigatory document is issued by a court of competent jurisdiction and is in proper form.”

    Doesn’t the line from 5 say that no records will be furnished to law enforcement without proper court document? And doesn’t the line from 10 say that records (or at least “a user’s identity”) CAN be revealed to law enforcement without proper court document?

    If that is right then the policy is in conflict with itself. Either the clause from 5 needs to be weakened (bad idea but at least the policy doesn’t self-implode) or the clause from 10 needs to be adjusted (good idea), preferably removed in entirety (best idea).

    But I may be missing something. And at least it’s just a draft at this point.

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  4. New Year Cat says:

    I believe that line in 10 is a violation of the classified staff contract. The Libraries would do well to take a second look at that and the UO Academics contracts before putting that in their policy. It could open them up to legal action.

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  5. cdsinclair says:

    Chair of the ULC here.

    The intent of the first line in question is that no patron *records* will be released without being compelled legally etc.

    The intent of the second line in question is that if there is behavior which is suspected of being against the law or institutional policy that the libraries are allowed to investigate and inform the appropriate authorities. Notice that in the second instance it is the name and not patron records that could be released.

    Finally, when designing this draft the librarians and Dean Lim were aiming for total transparency. For instance, it is a fact of life that institutional policy trumps library policy. Thus saying in the library policy that under no circumstances will patron records be released to fill-in-the-blank would just not be true if there are institutional policies or laws that trump that statement. It was the feeling of the Library and the ULC that being explicit about this increased transparency perhaps at the expense of idealistic rhetoric which may not be enforceable in every situation.

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    • just different says:

      Thanks for the clarification. But wouldn’t releasing the name of a library patron suspected of violating the law or some policy to “appropriate authorities” necessarily involve releasing information about the patron’s record without a court order?

      Just as with the counseling center’s revised policy statement, I think that increasing transparency by making it clear just how little privacy you actually have is a very poor substitute for guaranteeing that privacy.

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      • Policy Trumping? says:

        If a library policy to prevent release of patron records becomes University Policy, there would not be any “trumping.” And clearly Library policy MUST become University Policy. The Library is part of the work of all of us — as researchers, as teachers, etc. Nothing could be more important as “university policy.” The Library is not some separate unit, off doing its own things.

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  6. cdsinclair says:

    I can’t speak to what information would be released to the appropriate authority in the event of a breach of law or policy. I would hope the minimum necessary to respond to the infraction; perhaps such a clarification would be useful to include in the policy.

    As to the balance between transparency and privacy. Ideally we would have both, but I’d rather have one than none. The real issue here is that there are institutional policies that demand certain responses to certain occurrences, and these policies are beyond the purview of the library and the ULC. I’m happy to have a discussion about these policies on the Senate floor (or the appropriate committee) but until those policies are addressed or amended, the current draft honestly alerts library patrons that under certain circumstances the library is obligated to notify or coordinate a response with the administration.

    The ULC has only advisory powers with regard to the draft, though the library and Dean Lim have been by-and-large responsive to our (and other faculty) suggestions.

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  7. SaveUofO says:

    The abuse of evoking attorney client privilege by Doug Park needs to stop. This hiring of law firms by what is still a state institution in order to skirt public records laws needs to be dealt with. Hopefully the investigation by the bar will also look into this matter. As far as I am concerned using client attorney privilege to hide matters of public interest is unethical and an absurd breach of the public trust.

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