Court of Appeals considers whether library “users” include those who want books banned or reclassified

By Jeffrey A. Roberts Colorado Freedom of Information Coalition executive director

(reprinted with permission)

Librarians in Colorado need guidance from the Colorado Court of Appeals on whether the state’s library-user privacy statute protects the identities of people who want books banned or reclassified, a lawyer for the Gunnison County Library District director told a panel of appellate judges Wednesday, July 26. 

Gunnison Library District director Andrew Brookhart and Mark Reaman, editor of the Crested Butte News, have asked the Court of Appeals to overturn a district court judge’s ruling that requires Gunnison County public libraries to redact names and other identifying information from its “Request to Reconsider Materials” forms. Brookhart had asked the District Court for clarification on exactly what could be released given state statute protecting the identities of people using the library. While the District Court said the public and media was entitled to see the reasons for the request, the names and personal identifying information should be redacted. Reaman and the CB News appealed that decision and ultimately the Library District agreed with the CB News arguments but wanted further clarification from the Court of Appeals. 

Because Brookhart and Reaman basically agree on the law, the Court of Appeals judges ordered oral arguments from both parties to help them determine whether there is an issue to resolve.

“The controversy still exists because we don’t know, as the libraries, how to handle this statute anymore,” said Kim Seter, Brookhart’s attorney.

The library-user privacy law prohibits publicly supported libraries from disclosing “any record or other information that identifies a person as having requested or obtained specific materials or service or as otherwise having used the library.” A library official, employee or volunteer who violates the provision can be charged with a civil infraction and fined up to $300.

That potential liability for library workers is one reason the state’s second-highest court should clarify the statute as it pertains to identifying information on forms submitted by people who wish to have books removed from a library or moved to a different section of a library, Seter said. It’s also possible someone whose information is released by a library district could claim a federal civil rights violation, he added.

In his May 2022 ruling, Gunnison County District Court Judge J. Steven Patrick decided that library “user” in the statute “is not limited to someone who reads material in the library, or, checks out material, but inclusive of any person ‘using’ library services.”

His decision came after Brookhart provided the Crested Butte News with an unredacted copy of a November 19, 2021 form asking for the removal or reclassification of Gender Queer: A Memoir by Maia Kobabe. Citing “the somewhat ambiguous language” in the library user statute, Brookhart filed a lawsuit seeking a judicial clarification of the law after receiving several additional reconsideration forms, which Reaman requested under the Colorado Open Records Act.

Asked by the appellate judges whether the Gunnison County Library District’s “Request to Reconsider Materials” forms are considered a library service, Seter said the definition of library services can be found in the state law governing how public libraries function. The purpose of libraries, the law says, is to “ensure equal access to information.” Standards created by the state librarian further detail what public libraries are expected to do and provide.

Seter also pointed to the definition of “library” in the statute. “Use of the library appears to mean having otherwise used the organized collection… the printed and other resources, the paid staff available to the clientele for the programming, and searching the resources or the facilities necessary to support that collection and staff,” he said.

Under Judge Patrick’s order, “Mr. Reaman still has no access to the information,” Seter noted. “He should have access to that information.” 

Representing Reaman, lawyer Rachael Johnson argued that the courts should apply “the practical and common sense meaning of user.” Those who ask for library books to be banned or reclassified “are not using the library,” said Johnson, a Colorado-based attorney with the Reporters Committee for Freedom of the Press. “It’s not a service,” she added. “It’s simply requesting that the library change its policy.”

Last November, the Colorado Freedom of Information Coalition submitted a friend-of-the-court brief supporting Reaman’s position that Judge Patrick’s ruling should be reversed.

It is expected that a ruling will be issued in a couple of months.