Colorado law does not permit libraries to disclose the identities of people who request the removal of certain books, the state’s second-highest court ruled last week.

A three-judge panel of the Court of Appeals did not weigh in on the broader movement to ban materials that touch on LGBTQ themes or race from library shelves. Instead, it examined whether those who seek to remove books and other media may do so confidentially, with names shielded from open records requests.

Although the panel decided 2-1 in the affirmative, there were several quirks unique to the case, which originated in Gunnison County. For example, all parties supported the disclosure of identities. Also, the library’s decision to make a form available for members of the public to seek the removal of materials placed the organization squarely under the non-disclosure guarantee in state law.

Andrew Brookhart, the executive director of the Gunnison County Library District, argued to the Court of Appeals that libraries should be allowed to share the identities of those seeking to influence the makeup of their collections. But the panel’s majority waved aside that concern, noting the request to ban materials itself is fully disclosable.

“We perceive no persuasive argument that the library’s objective assessment of the requests or the public good would be enhanced by revealing the identity of the requesters,” wrote Judge Lino S. Lipinsky de Orlov for himself and Judge Timothy J. Schutz.

Judge Daniel M. Taubman, citing the unusual circumstances of the case, indicated he would have dismissed the appeal. With both sides in agreement that disclosure of requesters’ names should happen, he believed no controversy existed. If the case was moot, Taubman reasoned, there was no need to go further, especially because no pressing issue needed addressing.

“While whether certain books should be banned or their circulation restricted in public libraries is being litigated and debated across the country,” he wrote, “that is not the issue presented here.”

Case: Brookhart v. Reaman

Decided: October 5, 2023

Jurisdiction: Gunnison County

Ruling: 2-1

Judges: Lino S. Lipinsky de Orlov (author)

Timothy J. Schutz

Daniel M. Taubman (dissent)

Background: Library district draws crowd over censorship

Mark Reaman, the editor of the Crested Butte News, filed a request in March 2022 under Colorado’s open records law. He sought all of the forms filed with the Gunnison County Library District since the beginning of 2022 to remove books and other materials.

The prior year, a woman requested the removal to the adult section of Gender Queer by Maia Kobabe, a graphic memoir that addresses sexuality. Although the woman identified herself publicly, she made a criminal complaint to the Seventh Judicial District Attorney’s Office over the library’s disclosure of her request.

The office declined to bring charges, looking to a Colorado law that generally prohibits disclosure of any information identifying a person who “requested or obtained specific materials or service” from the library, or who otherwise “used the library.” In response to Reaman’s request, Brookhart petitioned the district court seeking clarification on whether the book removal forms fell under the non-disclosure requirement.

Chief Judge J. Steven Patrick determined disclosure should occur for everything but the personal identifying information.

A library “user,” he wrote in May 2022, “is not limited to someone who reads material in the library, or, checks out material, but inclusive of any person ‘using’ library services.”

On appeal, Reaman cited reporting from the nonprofit advocacy group PEN America of 1,648 book titles banned between July 2021 and June 2022, occurring across 32 states. Most materials were fiction, and four in 10 addressed LGBTQ themes or characters.

“As this nationwide effort to ban books hits communities like Gunnison County, residents have a compelling interest in knowing who is responsible, and how to use the democratic process to secure their right to unimpeded access to information in their public library,” wrote attorney Rachael Johnson.

But during oral arguments, the panel repeatedly focused on the narrow question of whether the people who submitted forms obtained a “service” from the library, and were thus shielded from identification.

“The individuals in this case are not requesting services. They’re asking to remove information,” Johnson maintained.

“But doesn’t the library provide this form, which they completed, as a service?” Lipinsky pressed. “These individuals used a form the library created and put on its own website. Isn’t it a service?”

The majority agreed it could still decide the case, even though the parties were both arguing in favor of disclosure, because Brookhart did not know if he could legally release the names. The answer was no, given that the book removal forms constituted a “service.”

“The die was cast when the library district created and posted a form to allow any person to seek the removal or restriction of any item,” Lipinsky wrote in the Oct. 5 opinion.

Taubman, a retired judge who sat on the panel at the chief justice’s assignment, believed the correct move would have been to dismiss the case as moot and overturn the trial judge’s order.

“Brookhart has unequivocally declared that Reaman should be permitted to receive unredacted copies of the requesters’ forms. This is sufficient to moot the case,” he wrote.

Reaman and attorneys for Brookhart did not respond to emails seeking comment. Reaman disclosed to the Court of Appeals that the library provided the unredacted removal forms to his attorney. Although Reaman had not yet viewed them, there was no order blocking him from doing so.

The case is Brookhart v. Reaman.