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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.
________________
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.
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