Judge: State law protects privacy of those who ask for library books to be banned or reclassified

By Jeffrey A. Roberts
CFOIC Executive Director

People who ask Gunnison County librarians to remove or reclassify books they find objectionable or controversial can remain anonymous, a judge decided.

In a civil case brought against Mark Reaman, editor of the Crested Butte News, Gunnison County District Court Judge J. Steven Patrick ruled last week that “Request to Reconsider Materials” forms submitted to the Gunnison County Library District must be disclosed but with requester names and other identifying information redacted.

library books
Credit: iStock, jovan_epn

The judge cited a state statute that protects the confidentiality of library “user records.” He also relied on the Colorado Supreme Court’s 2002 ruling in Tattered Cover v. City of Thornton, which recognized a First Amendment and state constitutional right to purchase books anonymously.

“The Court concludes that user in the statute under this analysis is not limited to someone who reads material in the library, or, checks out material, but inclusive of any person ‘using’ library services,” Patrick wrote.

Reaman argued that someone asking for a change in library policy is not a library “user” whose identity is protected by the statute. The Gunnison County Library District should release unredacted forms under the Colorado Open Records Act (CORA), he contended in a court filing, because the community is entitled to know if a person seeking to ban or reclassify books “is a member of the community and not, for example, some politically motivated interloper that may have never set foot in the Gunnison County Library or even Gunnison County.”

“Anonymity goes against the very idea of transparency in public settings and would provide a dark power to any individual seeking community change without the expectation of accountability,” Reaman wrote. “An individual is certainly entitled to make any request of the library to adjust its policies, but it should be done in public, it should be done with notice, and it should be done with the expectation that the reasoning may be questioned and debated by the community and public in general.”

Reaman’s CORA requests for all “Request to Reconsider Materials” forms received by the library district since Jan. 1 ended up in court under a CORA provision that lets government records custodians seek a judicial clarification if they cannot, in good faith, figure out whether the disclosure of certain records is prohibited.

Earlier this year, library district executive director Andrew Brookhart provided the Crested Butte News and the Gunnison Country Times with unredacted copies of a Nov. 19, 2021, form asking for the removal or reclassification of Gender Queer: A Memoir by Maia Kobabe. The person who submitted the form, Crested Butte resident Rebecca White, described the book as “pornographic,” according to the Crested Butte News, and she later sought criminal charges against Brookhart for allegedly violating the library user law.

But the library board did not move the book from the young adult section — following a well-attended meeting on Feb. 17 — and the Seventh Judicial District Attorney’s office did not file charges against Brookhart after determining the library statute does not protect the confidentiality of request for reconsideration forms.

“At the end of the day, the People cannot prove beyond a reasonable doubt that the Defendant’s action constituted a crime,” the DA’s office concluded.

Brookhart also did not consider White’s request form to be a library user record as defined by the law, according to a court filing. In providing the Nov. 19, 2021, form to the newspapers, his lawyer wrote, Brookhart decided the voluntary nature of submitting the form “obviates any expectation of privacy” and he noted White had made statements about her “Gender Queer” request during public meetings.

But Brookhart asked for the judicial clarification after receiving a “flurry” of additional requests for reconsideration, the negative reaction to the disclosure of White’s request “and the somewhat ambiguous language” of the library user statute.

The statute, C.R.S. § 24-90-119, prohibits 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.” CORA also protects “library records disclosing the identity of a user as prohibited” by the library user statute.

The judge in his ruling noted that the statute doesn’t define “user.” He wrote that he considered “the public interest in a free press, including public records of issues such as in what section certain books are located” but also weighed a person’s “legitimate expectation of privacy” against the public interest in disclosure and “the least restrictive alternative.”

Redacting the name and any other identifying information from a request form is “the least drastic alternative,” Patrick decided, and it preserves the anonymity discussed in the Colorado Supreme Court’s Tattered Cover ruling.

In that case, the Tattered Cover bookstore in Denver successfully challenged a police search warrant for information about books purchased by a customer.

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