Legislature(2003 - 2004)
02/18/2004 01:34 PM Senate CRA
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SB 269-PARENT ACCESS TO CHILD'S LIBRARY RECORDS
CHAIR BERT STEDMAN reconvened the meeting and announced SB 269
to be up for consideration. The bill was previously heard and
relates to parental access to children's library records. He
noted there was a committee substitute (CS) and asked for a
motion to adopt it as the working document.
SENATOR THOMAN WAGONER made a motion to adopt the CS for SB 269,
\I version, as the working document.
SENATOR GEORGIANNA LINCOLN objected for discussion purposes.
CHAIR STEDMAN asked the sponsor to explain the changes.
SENATOR LYDA GREEN, sponsor of SB 269, said Jacqueline Tupou had
done most of the research on the bill and she could better
explain the changes.
JACQUELINE TUPOU, staff to Senator Green, referenced the
discussion at the last meeting regarding age limit for parental
access and said she found out more about FERPA, the Family
Educational Rights and Privacy Act. She read from the U.S.
Department of Education web site:
FERPA gives parents certain rights with respect to
their children's education record. These rights
transfer to the student when he or she reaches the age
of 18 or attends a school beyond the high school
level.
In addition to that, there is a provision in statute that says:
No funds under any applicable program shall be made
available to any state agency that has a policy of
denying, or effectively prevents, the parents of
students the right to inspect and review the education
records maintained by the state agency on their
children who have been attendants in any school or
educational agency or institution that is subject to
the provision of this section.
Federal law clearly says that parents have the right of access
until the child reaches 18, and also denies federal funding for
education programs and institutions such as libraries for
noncompliance.
MS. TUPOU said they drew up a CS relating to age limit after
learning about those two points. Page 1, line 13 identifies a
child under 18 years of age.
CHAIR STEDMAN asked Senator Lincoln if the explanation was
sufficient.
SENATOR LINCOLN withdrew her objection to adopting the CS as the
working document, but advised that she had questions on the
bill.
SENATOR ELTON wanted clarification before the CS was adopted. He
noted that the quote from FERPA referred to state educational
agencies and asked whether that would mean a school district or
the Department of Education.
MS. TUPOU replied she discussed that point with legislative
legal and "they have decided that this would apply to the
legislation that you currently have before you and that's why
we've made this change accordingly."
SENATOR ELTON wasn't sure he understood her answer and asked if
a school district is a state education agency that the FERPA
language would apply to or would it apply only to a state
education agency such as the Department of Education.
MS. TUPOU said her understanding is that it does apply to school
districts and "those people that are receiving federal monies
for their education program."
SENATOR ELTON followed up by asking if this applies to the state
library as well since it is a part of the Department of
Education.
MS. TUPOU reread the statutory provision, "any school or
educational agency or institution" and said she understands that
to mean that the term "institution" would apply to the state
library.
SENATOR GARY STEVENS interpreted the language as reference to
educational records and not library books and asked if he was
missing the point. He asked her to comment on whether
educational records would include checking out library books.
MS. TUPOU said SB 269 speaks to the statute that talks about
public records. In addition to the special provisions that say
that libraries will be private, there is also a special
provision that says where parental access is allowed for those
private records. "That's what we're talking about currently here
today is the records themselves," she said.
SENATOR GARY STEVENS asked whether libraries actually keep
records of who checks out a particular book.
MS. TUPOU replied that point isn't addressed in the legislation.
The state archivist could answer the question about the schedule
for retention of records.
SENATOR GARY STEVENS said he was asking whether those records
are kept at all.
MS. TUPOU said she understands that records are kept for three
years at the state library and there is a suggested schedule for
local governments. Also, certain municipalities have their own
schedule for record retention so it varies. She maintained the
bill doesn't address that so she hadn't researched it further.
SENATOR LINCOLN said she needed to ask the same question in
another way because the bill talks about library records and the
quote refers to educational records. She questioned how
educational records relate to library records.
MS. TUPOU said, "Our legislation specifically makes provisions
for including public libraries as well as public school
libraries." She made the point that legislative legal holds that
it could be construed to mean all libraries and even if it is
applicable to just public school libraries, SB 269 levels the
playing field and makes it clear that all libraries are
included.
SENATOR GARY STEVENS confessed he needed more specific
clarification on what they were trying to correct. He asked
whether they were trying to make it possible for parents to pick
up library books for their children as someone testified or were
they trying to correct another issue.
SENATOR GREEN reviewed the discussion from the previous hearing.
She introduced the legislation because two friends of hers were
unable to get information on their child's library records. One
issue related to an overdue book and the other was about a book
on hold. In the second instance, the librarian wouldn't tell the
parent the title of the book their child had on hold. She
asserted it is an outrageous that a parent isn't able to access
their child's library records when the parent is ultimately
responsible for the books their child checks out or the fines
they incur. She assured members she was not delving in the areas
of confidentiality rights or censorship. She simply wants
parents to have access to their child's public library records
just as they already have to their child's public school library
records.
CHAIR STEDMAN noted for the record that the \I version CS was
the working document before the committee.
SENATOR ELTON asked if the parent in the second instance was
able to pick up the book.
SENATOR GREEN replied the parent had to take the child with
them.
SENATOR ELTON smiled and said he was reluctant to ask the
conservative question, but this appeared to be a large paradigm
shift. Why would we want to do this, he questioned. This would
be a state mandate to community and nonprofit libraries telling
them how they must operate. Why shouldn't communities make their
own decisions and rules on this type of issue, he asked.
SENATOR GREEN laughed and replied she assumes that many people
believe that the original statutory language included all
libraries.
MS. TUPOU opined the conservative question is the reverse. Why
does state law dictate to public libraries that they can't let
parents access their children's records?
SENATOR ELTON admitted he was puzzled. Clearly, he said, AS
40.25.140(b) applies to public elementary and secondary schools,
but right now a local assembly or council may craft rules to
apply to their municipal libraries. This would take away that
ability so he couldn't understand the claim that SB 269 would
give municipal libraries more latitude.
MS. TUPOU said section 1 (a) talks about library records being
confidential. She continued, "Unless we make an exemption in
statute, those aren't confidential records so we had to dictate
to the library what their policy will be."
SENATOR LINCOLN told Senator Green that after she left the
hearing last week, someone from the Alaska Library Association
testified that the issue of child abuse is a reason for not
giving a parent access to a child's records. She asked the
sponsor to respond to the claim that an abused child might be
subjected to further harm if an abusing parent learned that the
child was seeking information and help.
SENATOR GREEN replied, " The issue of confidentiality of records
of children is far broader than library information and
different agencies handle it differently.... This seems to be so
confined an issue I do not see that as being germane to what
we're talking about."
SENATOR GARY STEVENS said he thought he understood what the
sponsor was trying to accomplish, but he was still concerned
about the age issue. He reflected that as a retired college
professor, he had a number of 18-year-old high school students
who took his classes and this legislation could include them. He
opined they might be overreaching when they include 18-year-
olds.
SENATOR GREEN replied she didn't establish an age initially; it
is FERPA that set the age of 18 and under. She said, "It really
wouldn't matter whether or not we pass this. Their requirement
is a federal law."
SENATOR ELTON followed up on Senator Gary Steven's question and
said FERPA applies only to school libraries and he didn't
believe it was necessarily appropriate to apply FERPA provisions
to public libraries when FERPA only applies to libraries of
educational institutions.
SENATOR GREEN told him that was his judgment and their decision
was to use under 18 years of age.
SENATOR ELTON asked if there is any provision in state law that
prohibits a child from waiving confidentiality to their library
records.
SENATOR GREEN thought that was mentioned in FERPA.
MS. TUPOU explained that FERPA says that parents have access to
their child's records.
SENATOR ELTON said he understands how FERPA applies and whom it
applies to. FERPA doesn't apply to a public library he stated
emphatically. Again, he asked whether any provision of law
prohibits a child from waiving their confidentiality rights at a
public library.
MS. TUPOU replied that is a technical legal question and they
would have to consult legislative legal for the answer.
SENATOR ELTON asked whether someone from the library association
would provide testimony.
CHAIR STEDMAN said he was planning on that.
MS. TUPOU added that when they gave legislative legal some
anecdotal stories about policies around the state, they were
told that libraries that have chosen to give out children's
records are noncompliant with state law.
CHAIR STEDMAN called Lynn Shepherd to testify.
LYNN SHEPHERD, government relations chair for the Alaska Library
Association (AkLA), read from her prepared testimony:
It appears that the proposed amendment to AS 40.25.140
is intended to solve two problems:
· Parents needing to pay fines for materials
checked out by their children but not being aware
of the items on loan
· Parents wanting to pick up library materials for
their children who cannot be present at the time
of checkout
Last week, AkLA presented reasons for opposing
the proposed wording of the amendment.
We have examined the statutes of 49 states with
regard to the confidentiality of library records.
Only 8 states allow parental inspection of both
school and public library records of their minor
children: AL LA UT GA WV OH WY SD
Just 1 state, in addition to AK, allows parental
inspection of school library records of minor
children. NM
40 states protect the confidentiality of library
records for all users except:
23 states specify that a library patron
may give permission for the release of
his/her records
6 states specify that a library may
make public the information pertaining
to overdue materials and 10 others
specify such records may be disclosed
"for the orderly management of the
library" - probably referring to the
status of overdue, lost, and damaged
materials
In only 2 states, do the statutes specifically
include academic and state libraries with
parental rights.
In summary, approximately 85 percent of states
provide for the confidentiality of the library
records of minors. And some of these (e.g. SC,
AR) even specify that school library records are
included among those records that are protected.
AkLA leadership has discussed the various issues
involved - parental rights, children's rights,
library staff rights, and public property
protection.
MS. SHEPHERD said the association has several suggestions
to clarify the issue while still protecting the rights of
children. They believe that library records related to
overdue, lost, and damaged library materials should be
available to parents provided that the child's personal
identifying information is not released. She observed that
is how educational records and Department of Transportation
records are handled in Alaska Statutes.
Also, reserved library material for children under 16 years
of age should be released to a parent or guardian provided
that the child gives signed written consent at the time the
materials are released.
She said the association believes that this solves several
problems. It would permit parents to keep track of and pick up
material their child checks out; it would protect minors who are
responsible borrowers and who want or need privacy regarding
library material they use; it would protect personal identifying
information that can be in a library record; it would protect
library staff who would have written proof of authorization to
release information to a parent.
The association also recommends eliminating mention of the state
and the University of Alaska libraries in section 2 (c). She
said she has an interpretation of FERPA that says, "the
permission or consent required of and the right supported to the
parents of the student shall, thereafter only be required of and
accorded to the student attending that institution of
postsecondary education. Their reading of FERPA is that although
there are some exceptions, the student must always give their
written consent.
SENATOR LINCOLN asked who belongs to the Alaska Library
Association.
MS. SHEPHERD replied the membership consists of professional
librarians, library administrators, library staff and library
trustees for all types of libraries.
SENATOR LINCOLN asked why they suggest eliminating reference to
state and university libraries.
MS. SHEPHERD said it is the conflict with FERPA and she isn't
sure that the records of a university student would be
accessible in any case without written consent.
SENATOR LINCOLN asked if the association worked with the sponsor
to craft a proposed amendment.
MS. SHEPHERD spoke of tight schedules.
SENATOR WAGONER commented that the problem he has with dropping
reference to the university library is that in the Kenai area
there is a multiple use arrangement between the school
libraries, the municipal library and the university library to
make better use of limited resources.
SENATOR ELTON observed that they heard testimony that alleged
that under FERPA you are denied federal funds if you don't
provide access to educational records.
MS. SHEPHERD said she didn't have a copy of their interpretation
of FERPA in front of her, but it is just the reverse of that
statement. She advised the association's reading is that, "A
parent does not have access and if that is violated, then the
institution doesn't get funding."
SENATOR ELTON referred to FERPA, section 1232g (B) and read,
No funds under any applicable program shall be made
available to and state educational agency (whether or
not that agency is an educational agency or
institution under this section) that has a policy of
denying, or effectively prevents, the parents of
students the right to inspect and review the education
records...
He then compared that section of FERPA with the library
association handout that says 40 states protect the
confidentiality of library records for all users. He commented
that the data is confusing, but it seems as though 40 states are
not compliant with FERPA.
SIDE B
2:22 pm
SENATOR ELTON continued to say that he was uncomfortable with
what the committee was told about the application of FERPA if,
in fact, 40 states are out of compliance.
CHAIR STEDMAN called on June Pinnell-Stephens to give testimony.
JUNE PINNELL-STEPHENS, Alaska Civil Liberties Union (ACLU) past
president and current board member, testified via teleconference
from Fairbanks. She told the committee, "I do not support this
amendment to confidentiality of library records."
She made the point that parents are responsible for their
children's use and abuse of library materials whether or not
they agree with them or even know about them. Also, once a
library card is issued, anyone who has the card can use it and
it's not uncommon for parents to do so. She asserted that the
library records could be released under the proposed amendment
and information might be divulged to a divorced spouse that may
or may not have custody of the child.
MS. PINNELL-STEPHENS said that most libraries send notices to
alert users that they have overdue material and those notices
provide parents sufficient information to track down their
children's material.
She stated that there are two possible reasons for the bill.
First is to help parents avoid minor inconvenience associated
with handling their children's library transactions. Twenty-
three other states provide a solution to that issue by allowing
any user to authorize release of their records and the ACLU
would support such an amendment.
The second reason for the bill is to help parents control the
books their children read. The right to privacy is guaranteed
under the state constitution and is the basis for the
confidentiality statute, she asserted. That right is not
restricted by age. Furthermore, without the guarantee of privacy
and confidentiality, there can be no freedom of inquiry.
She encouraged parents to guide their own children in the use of
the library, but made the point that children should be able to
use the library without fear of punishment. In conclusion, she
urged the committee to support the constitutional right to
privacy as represented in the original law.
CHAIR STEDMAN thanked Ms. Pinnell-Stephens for her testimony
then called Andrea McLeod to testify.
ANDREA McLEOD testified via teleconference from Anchorage. She
reported that she is the parent of a 21 year old and she fully
supports SB 269. She stated that she was appalled to learn about
the two instances that precipitated the bill and charged that it
is acrimonious public policy that is adversarial to parents with
children under 18 years of age. "Parents are legally and
absolutely responsible for their children until they reach 18 -
the age of majority. At the very least, parents do not need any
publicly funded librarian encroaching on their inherent and
absolute parental rights," she said.
CHAIR STEDMAN thanked Ms. McLeod and brought the discussion back
before the committee.
SENATOR ELTON asked whether the state library director would
answer a few questions.
GEORGE SMITH, acting director or the Division of Libraries,
Archives & Museums, sat down and said he would entertain
questions.
SENATOR ELTON asked whether he had read the FERPA material.
MR. SMITH said FERPA isn't relevant in his work and he didn't
consider himself to be an expert on that federal legislation. He
added that he too was perplexed because the information
presented leads to the conclusion that either 40 states are out
of compliance or FERPA doesn't apply to a library. "It's got to
be one or the other," he said.
SENATOR ELTON remarked that he might be inferring too much, but
he assumes that the provisions of FERPA have never been applied
to state libraries.
MR. SMITH said that is correct and added, "I think it's strictly
within the educational environment and in this case, the state
library would not be included even though we are in a department
of education. Not all state libraries are in the Department of
Education [and Early Development]."
SENATOR LINCOLN asked if he had ever denied a parent access to
records.
MR. SMITH explained he has been in state libraries most of his
career. Twice he was director of a public library and once he
was director of an academic library and he said, "Personally I
am surprised that a public library director - and I'm assuming
these were public library directors in Alaska - denied a parent
access to the child's records when the child gave permission. "
He continued to say that he might have broken the law, but he
probably would have given the parent the information.
He said he finds it interesting that 23 states specifically
address authorizing the release of patron's library records in
their confidentiality law. "It's clear that half our states see
this as problematic if you don't address it directly in the
law," he argued.
The other issue is what happens when library materials are
overdue and a parent is unable to access the records. He noted
that, "either directly or indirectly a third of our states do
address that in their law in that they do release that
information to the parent." Also, he knew of several instances
in Alaska where a public library received legal advice that if a
child has overdue library material they have broken their
contract with the library and it's acceptable for the library to
release the information to the parent.
SENATOR LINCOLN stated she wants to protect a child that has
been abused and who doesn't want a parent to have access to
their records, but she also wants to protect parental rights.
Having said that, she made the that point that an abused child
would probably sign any permission slip their parent told them
to sign whether they wanted that parent to have access or not.
MR. SMITH acknowledged that is an unfortunate but probably
accurate observation. Sadly, he didn't know of a way to legally
address that situation.
SENATOR WAGONER asked whether it isn't the parent who is
ultimately responsible for paying library fines.
MR. SMITH said his understanding is that the parent is
financially responsible until the child reaches majority and
that is age 18 in Alaska and he thought it would be very
appropriate to address that in law.
SENATOR WAGONER opined it is a stretch to think that an abused
child would turn to the library when looking for answers. Child
abuse is beyond what this legislation is trying to correct, he
said.
SENATOR GARY STEVENS noted that a child can use library material
without checking anything out and that is never a part of any
record. He remarked that having raised three children he has
paid a small fortune in overdue library books. However, his
library sends postcard notices advising patrons when they have
overdue materials so he knows exactly which books are overdue.
MR. SMITH said different libraries have different ways of
notifying patrons of overdue materials.
SENATOR ELTON read section 1 (a) of the bill and stated that it
seems to prohibit libraries from releasing information
identifying a patron, but it doesn't prohibit releasing
information about what that patron is reading. He asked whether
any other provision of law prohibits releasing information such
as the title of a book.
MR. SMITH said no, this is the only statute that addresses
library records. He thought that was an interesting way to read
the law, but didn't disagree with the interpretation. Having
read the confidentiality laws for all 50 states he explained
that most states include library material itself as being an
identifying part of the record.
SENATOR ELTON remarked that he believes it would be difficult to
construe that his checking out a book on Darwin would be
personally identifying information because lots of people check
out books on Darwin.
MR. SMITH agreed with that statement.
SENATOR ELTON stated that until the question regarding his
reading of section 1 (a) is answered, the bill might not be
necessary because there may be no prohibition against releasing
titles to parents.
MR. SMITH explained he arrived in Alaska shortly after the law
was passed in 1985 and he has been the one who interpreted the
law for school and public libraries over the years. He
maintained that it has always been assumed that library
materials are considered part of the record. He conceded that
the statute might not have been written properly, but the intent
is that books that patrons check are part of the record.
CHAIR STEDMAN closed public testimony and asked for a motion.
SENATOR WAGONER made a motion to move \I version, CSSB 269 (CRA)
from committee with individual recommendations and accompanying
fiscal note.
SENATOR ELTON objected and said:
Aside from the point that the bill may not be
necessary, I think that we're trying to take a very
broad approach to solve two relatively discrete
situations and I'm not clear in my mind whether we
need a change in law to do that or if in fact
libraries have the ability to ask of any patron that
they waive their confidentiality to the materials that
are being checked out of the library. I'm sympathetic
to the notion that people, especially families, ought
to have some control over the materials that young
people have access to. Having said that, I think there
are many situations that when we try to apply the
broad scope of law to ensure that that happens there
are many situations that are caught up and that create
real problems within a family. The Senator from
Rampart has mentioned some of those.
It also seems to me that what we may be doing is
trying to fix a problem that really doesn't get to the
root of it. Right now, young people can go on the
computer and get access to any kind of information
they want with no ability for a parent or a family
member to find out what kind of information they're
accessing.
I tend to think that when you have information that is
available through libraries that are run by
professional librarians, that we ought to give them
the latitude, under existing law, to make decisions
that best works for them, best works for the patrons
and best works for the communities in which they are
operating rather than having relatively broad
prohibitions that are established at the state level.
For all of those reasons, Mr. Chair, I'm going to vote
no.
CHAIR STEDMAN asked whether there were any other comments.
SENATOR GARY STEVENS asked where the bill would go after leaving
this committee.
CHAIR STEDMAN replied it would go to the Health Education and
Social Services Committee next.
CHAIR STEDMAN called for a roll call vote. The motion to move \I
version, CSSB 269 (CRA) from committee passed with Senators
Elton and Lincoln voting no and Senators Wagoner, Gary Stevens,
and Chair Stedman voting yes.
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