Can a public library charge fees for things like computer searches, video rentals, or overdue books?

Plain-English summary

In 1987, counsel for a legislative oversight committee asked the Attorney General whether Maryland's public libraries could charge user fees for services, and if so, which services could be charged for, prompted by a proposed State Board of Education regulation defining "free library services."

The Attorney General concluded that public libraries generally must provide access to their information resources, regardless of format, without charge. Drawing an analogy to the well-established rule that Maryland's constitutionally guaranteed "free" public schools cannot charge for anything that is an integral part of the educational curriculum, the opinion reasoned that since the General Assembly had declared public libraries to be essential components of the educational system, the same free-access principle should apply: a library could no more charge for a videocassette, sound recording, or computer database search that serves an informational purpose than a school could charge tuition for a course. However, the opinion found that libraries could still charge for genuinely ancillary conveniences, like photocopiers, typewriters, and computer time for managing personal data, since those services are not themselves part of the library's core informational mission. Libraries could likewise impose fees, such as overdue fines, as a way of enforcing reasonable limits on how much material a patron could borrow and for how long, since those limits would be meaningless without some means of enforcement.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Note that a 1988 amendment, referenced in the opinion's own editor's note, later added ED §23-305(b)(2), specifically allowing library boards in Baltimore and Prince George's Counties to charge fees for videocassette rentals.

Common questions

Could a Maryland public library charge for a patron to check out a videocassette or use a computer database in 1987?
No, according to this opinion. The Attorney General concluded that the format of the information, whether a printed book, a videocassette, a sound recording, or a computer database, did not matter; if the library was providing access to information as part of its core mission, the service had to be free.

Could a library still charge for using a photocopier or typewriter?
Yes. The opinion concluded that ancillary conveniences like copiers, typewriters, and computer time used for managing a patron's own personal data (rather than searching library information resources) fell outside the library's core informational mission and could be charged for.

Could a library charge overdue fines or other fees to enforce borrowing limits?
Yes. The opinion concluded that reasonable restrictions on how much material a patron could borrow, and for how long, would be meaningless without some means of enforcement, so fees like overdue fines were permissible even though the underlying library service itself remained free.

Background and statutory framework

The General Assembly declared in ED §23-101(a)(1) that public library resources and services are essential components of Maryland's educational system, and ED §23-305(b)(1) required each county library board to operate its library to provide free service to residents. The opinion traced this free-access principle to a Maryland tradition going back to colonial library legislation in 1696 and to an 1898 statute declaring that libraries "shall be forever free to the use of the inhabitants."

Because the term "free" can mean either open to the public or provided without charge, the opinion first confirmed, citing Johnson v. Mayor and City Council of Baltimore and by analogy to Maryland's constitutional guarantee of free public schools under Article VIII, §1, that the statute used "free" in the second sense: no charge. The opinion then surveyed the badly split case law on whether "free" public schools may charge fees for supplemental activities, some courts distinguishing "core" curricular activities (which must be free) from merely supplemental ones (which may be charged for), and other courts, including Maryland's own prior opinions on driver education fees, rejecting that distinction for anything that is an integral part of the school's educational offerings.

Applying the schools analogy to libraries, the opinion concluded that all of a library's informational resources, regardless of their technological format, are integral to its educational mission and must remain free, consistent with a proposed State Board of Education regulation defining "free library services" to include printed materials, films, recordings, videocassettes, computer software, online databases, and other electronic information formats. At the same time, the opinion recognized that not every library offering is part of that core mission: charges for using a photocopier or typewriter, or fees tied to enforcing reasonable borrowing limits like overdue fines, do not conflict with the free-access requirement, since those charges are not for the library's underlying informational service itself.

Citations

Statutes:

• ED §23-101(a)(1) (public libraries as essential components of the educational system)
• ED §23-101(b)(2) (State policy of widest possible access to library resources)
• ED §23-101(b)(2)(i) (State policy of providing widest possible access to library and information resources)
• ED §23-104(b)(1) (State Board of Education rulemaking authority for Title 23)
• ED §§23-104 and 23-305 (State Board oversight of local library boards of trustees)
• ED §23-301 (county governing body authority to establish a public library system)
• ED §23-305(b)(1) (requirement that county libraries provide free service to residents)
• ED §23-305(b)(2) (1988 amendment permitting videocassette rental fees in Baltimore and Prince George's Counties)
• ED §1-201 (general system of free public schools)
• Article VIII, §1 of the Maryland Constitution (free public schools guarantee)
• Chapter 377, Laws of Maryland 1872 (comprehensive revision of public education laws, district libraries)
• Chapter 515, Laws of Maryland 1898 (origin of the free public library requirement)
• Chapter 773 (Senate Bill 782), Laws of Maryland 1988 (added ED §23-305(b)(2))
• COMAR 13A.04.03.05A(1) (fee for driver education programs outside the school day or year)
• COMAR 13A.05.04.06A(2) (proposed regulation on excess computer search charges)
• COMAR 13A.05.04.06A(3) (proposed regulation on charges for library conveniences)
• COMAR 13A.05.04.06C (proposed regulation defining "free library services")

Cases:

• Johnson v. Mayor and City Council of Baltimore, 158 Md. 93, 103-04 (1930)
• Dugan v. Mayor and City Council of Baltimore, 5 G&J 357, 375 (1833)
• Webber Hospital Association v. McKenzie, 71 A. 1032 (Me. 1908)
• Bernstein v. City of Pittsburgh, 77 A.2d 452 (Pa. 1951)
• Clark v. Maryland Institute, 87 Md. 643, 661 (1898)
• Aurora East Public School Dist. No. 131 v. Cronin, 442 N.E.2d 511 (Ill. 1982)
• Bond v. Public Schools of Ann Arbor School Dist., 178 N.W.2d 484 (Mich. 1970)
• Concerned Parents v. Caruthersville School Dist. 18, 548 S.W.2d 554 (Mo. 1977)
• Sneed v. Greensboro City Board of Educ., 264 S.E.2d 106 (N.C. 1980)
• Board of Educ. v. Sinclair, 222 N.W.2d 143 (Wis. 1974)
• Lander v. Village of South Orange, 279 A.2d 633 (N.J. 1971)
• Kiddie Korner Day Schools, Inc. v. Charlotte-Mecklenburg Bd. of Educ., 285 S.E.2d 110, 114 (N.C. App. 1981)
• Ambroiggio v. Board of Educ., 427 N.E.2d 1027 (Ill. App. 1981)
• Hamer v. Board of Educ., 292 N.E.2d 569 (Ill. App. 1973)
• Hartzell v. Connell, 679 P.2d 35, 43 (Cal. 1984)
• Granger v. Cascade County School Dist., 499 P.2d 780, 786 (Mont. 1972)
• Paulson v. Minidoka County School Dist. No. 331, 463 P.2d 935, 938 (Ida. 1970)
• Clauss v. Board of Educ., 181 Md. 513, 522-23 (1943)
• Cardiff v. Bismarck Public School Dist., 263 N.W.2d 105, 113 (N.D. 1978)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1987/Volume72_1987.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

PUBLIC LIBRARIES

Fees—Public Libraries Must Provide Access To Information Resources Without Charge But May Impose Fees For Ancillary Conveniences.

December 9, 1987

Stuart Yael Gordon, Esquire
Committee Counsel
Joint Committee on Administrative, Executive, and Legislative Review

On behalf of the Committee, you have requested our opinion on the imposition of fees by public libraries. Specifically, you have asked (i) whether State law permits county public libraries to charge user fees for services; and (ii) if it does, what services are subject to charge.

For the reasons stated below, we conclude that the public libraries of this State generally must provide access to their information resources without charge, regardless of the format in which the information is presented.1 However, public libraries may charge fees for the use of ancillary conveniences like copiers, typewriters, and computers for management of personal data. They may also charge fees when a patron exceeds reasonable limitations on the use of library resources. A proposed regulation of the State Board of Education on library services, now before the Committee, is consistent with this construction of the statute.

I
Introduction

Public libraries have their historical antecedents in the public education system. In the early 1800's, school district libraries were established by statute in New York State. The school district library "did much to establish certain principles which formed the basis of our present public system. For one thing, it provided for taxation for free library service and also for state aid to libraries, both important milestones in library history. Even more significant, perhaps, it recognized the library as an educational agency, an extension of the system of public education beyond the formal instruction offered by the schools." C. Joeckel, The Government of the American Public Library 12 (1935). By the mid-nineteenth century, public libraries as we know them today were essentially developed and defined.

In Maryland, the General Assembly has declared expressly that "public library resources and services are essential components of the educational system." ED §23-101(a)(1).2 This legislative finding reflects a long-accepted understanding of the educational role of public libraries: "[These] institutions form an integral part of a system of free public education and are among its most efficient and valuable adjuncts," the Court of Appeals wrote more than a half-century ago. A government has "no more important duty or higher purpose," the Court of Appeals continued, "than to provide free public libraries for the benefit of its inhabitants." Johnson v. Mayor and City Council of Baltimore, 158 Md. 93, 103-04 (1930).

Under ED §23-301, a county governing body may establish a public library system, governed by a board of trustees or equivalent agency. The local board of library trustees is responsible for the daily operation of the county libraries, subject to the oversight power of the State Board of Education. ED §§23-104 and 23-305. The State Board is empowered to adopt "rules and regulations necessary to administer" Title 23 of the Education Article ED §23-104(b)(1).

The State's policy is to "[p]rovide the widest possible access to the library and information resources of the State." ED §23-101(b)(2)(i). To that end, each county board is required "to establish and operate the library to provide free service to residents of the county in which it is located." ED §23-305(b)(1).3 Presently, most public libraries provide services to local residents without charge. However, some county libraries charge for services or materials that libraries describe as "enhanced", for example, computer searches and videocassette rentals.

The State Board of Education recently proposed a regulation, after receiving and considering the recommendations of the Advisory Council on Libraries, that defines "free library services" as follows:

"the use of all library material and services available for reference/information and for circulation to library users regardless of format, including:

(1) Printed materials;
(2) Films;
(3) Recordings;
(4) Videocassettes;
(5) Computer software;
(6) Online databases; or
(7) Other forms of electronic storage of information." Proposed COMAR 13A.05.04.06C, published at 14:20 Md. Reg. 2160-61 (Sep. 25, 1986).

The Committee's question, in essence, is whether this regulation reflects a restriction on fees commanded by ED §23-305(b)(1) or whether the statute affords county public libraries wider opportunity to charge for their services.

The word "free," used in connection with provision of a service, can mean either open to the public or offered without charge. See generally 17A Words and Phrases 216-18 (1958). In the first sense, a service is "free" if it is open to the public, even if a charge is imposed, "free for the public use, but not free from the collection of tolls." Dugan v. Mayor and City Council of Baltimore, 5 G&J 357, 375 (1833) (collecting wharfage fees along the Baltimore City waterfront). Accord, Webber Hospital Association v. McKenzie, 71 A. 1032 (Me. 1908) (free hospital is one open to the public, not free of charges for services rendered); Bernstein v. City of Pittsburgh, 77 A.2d 452 (Pa. 1951) (city may charge admission fees to special events in "free" public park).

ED §23-305(b)(1) unquestionably uses the term "free" in the second sense of the term, that a service is to be rendered without charge, just as the term is consistently used about the public schools. See Clark v. Maryland Institute, 87 Md. 643, 661 (1898). See also, e.g., Aurora East Public School Dist. No. 131 v. Cronin, 442 N.E.2d 511 (Ill. 1982); Bond v. Public Schools of Ann Arbor School Dist., 178 N.W.2d 484 (Mich. 1970); Concerned Parents v. Caruthersville School Dist. 18, 548 S.W.2d 554 (Mo. 1977); Sneed v. Greensboro City Board of Educ., 264 S.E.2d 106 (N.C. 1980); Board of Educ. v. Sinclair, 222 N.W.2d 143 (Wis. 1974). Cf. Lander v. Village of South Orange, 279 A.2d 633 (N.J. 1971) ("free public playground" means open to the public and free of charge).

The question of whether "free" public schools nevertheless may charge fees of various kinds has been litigated frequently. In Part II below, we examine the principles that govern the imposition of fees by public schools. Then, in Part III, we apply these principles to the analogous problem of "free service" by public libraries.

II
Free Schools

A. Background

Beyond affirming the simple proposition that a "free" school means one that does not charge tuition, the case law is badly split over whether schools may charge fees for ancillary services. See generally Annotation, Validity of Exaction of Fees from Children Attending Elementary or Secondary Public Schools, 41 A.L.R.3d 752 (1972, 1987 Supp.). For example, one court approved a school board's charging of fees for an after-hours program of supervised activities, because the program was merely "a supplemental educational experience." Kiddie Korner Day Schools, Inc. v. Charlotte-Mecklenburg Bd. of Educ., 285 S.E.2d 110, 114 (N.C. App. 1981) (emphasis in original). See also, e.g., Ambroiggio v. Board of Educ., 427 N.E.2d 1027 (Ill. App. 1981); Hamer v. Board of Educ., 292 N.E.2d 569 (Ill. App. 1973); Sneed v. Greensboro City Board of Educ., 264 S.E.2d at 112-13.

Other courts reject efforts to parse the educational offerings of a school into those that are central and those that are merely supplemental. Under a broad reading of a "free schools" guarantee, "all educational activities, curricular or 'extracurricular', offered to students by school districts" are to be free of charge. Hartzell v. Connell, 679 P.2d 35, 43 (Cal. 1984). See also, e.g., Granger v. Cascade County School Dist., 499 P.2d 780, 786 (Mont. 1972) (fee invalid if "a given course or activity [is] reasonably related to a recognized academic and educational goal").

However, even decisions that reflect so broad a view of "free schools" acknowledge that fees may be charged for activities that are merely recreational or social, that is, activities outside even an expansive definition of a school's educational mission. See, e.g., Paulson v. Minidoka County School Dist. No. 331, 463 P.2d 935, 938 (Ida. 1970). As the California Supreme Court put it: "Educational activities are to be distinguished from activities which are purely recreational in character. Examples of the latter might include attending weekend dances or athletic events." Hartzell v. Connell, 679 P.2d at 43 n. 14. Moreover, items that are customarily furnished by students for their own personal use are also viewed as outside the scope of a "free schools" requirement. See Board of Educ. v. Sinclair, 222 N.W.2d at 148.

B. Maryland Law

Article VIII, §1 of the Maryland Constitution provides that: "The General Assembly . . . shall by Law establish throughout the State an efficient System of Free Public Schools; and shall provide by taxation, or otherwise, for their maintenance." See also ED §1-201 ("There shall be throughout this State of Maryland a general system of free public schools . . . ."). The constitutional requirement "means that the schools must be open to all without expense." Clark v. Maryland Institute, 87 Md. at 661.

We are not aware of any reported case that identifies the range of activities embraced by the term "free" in Article VIII, §1. Hence, we cannot say whether Maryland courts would go as far as courts in some states in categorizing the activities that must be offered without charge. But, whatever the outer limits of Maryland's "free public schools" guarantee, we are safe in saying that anything directly related to a school's curriculum must be available to all without charge. To borrow the North Dakota Supreme Court's formulation, whatever is an "integral part of the educational system" must be free. Cardiff v. Bismarck Public School Dist., 263 N.W.2d 105, 113 (N.D. 1978).

Moreover, the "free schools" requirement is not limited to traditional curricular offerings.4 In 57 Opinions of the Attorney General 176 (1972), this office concluded that a county was prohibited from charging a fee of $25 per student to underwrite the cost of its driver education program, which was part of the school curriculum. "[T]he concept of charging fees to public school students . . . [for] courses in the public schools," the Attorney General wrote, "is contrary to constitutional and statutory principles regarding free public education." 57 Opinions of the Attorney General at 177.5

III
Free Libraries

Public libraries in Maryland "are essential components of the educational system." ED §23-101(a)(1). Accordingly, we believe that the core principle identified by the Court of Appeals and applied by this office to schools ought to apply to libraries as well: A fee may not be imposed for a service that is part of the institution's basic mission. As this office's driver education opinion suggests, when a school's curriculum expands to meet modern needs, even a nontraditional course must be offered without charge.

Applying this principle to the myriad of services offered by modern public libraries is not easy. Certainly, a library may not charge a patron who wishes to borrow a copy of Othello, any more than a public school may charge tuition for an English course. But may a library exact a fee when a patron borrows a film of the play on videocassette or a recording of the Verdi opera on compact disc, or searches a computer data base to locate references to Othello in recent works?

In our view, these differences in form, that is, in the technological embodiments of human knowledge and art, are immaterial. All are to be "free," because all are an integral part of a public library's contemporary role.

Quantum leaps in technology, unimaginable even 100 years ago, have made it possible to provide access to more timely information in far less space than printed material can provide. But new tools and new methods of providing a service do not change the basic task. When a librarian searches indexes and other sources of information to assist a patron, the librarian is carrying out a fundamental aspect of library service, regardless of whether the search involves books or computer data bases.

Similarly, the lending of videocassettes, filmstrips, recordings, and other entertainment media is a library service that must be provided without charge, even though their format is not the printed word and their purpose is entertainment. Public libraries long ago yielded to the reality that the artifacts of modern culture do not arrange themselves into nice categories.6

In our view, the purpose of the "free service" requirement of ED §23-305(b)(1) is to assure that patrons are not charged for access to a library's information resources, no matter what form of technology conveys the information.7 The State Board's proposed regulation applies this concept in detail and therefore properly implements the statute.

Our conclusion that all informational resources of a public library must be provided without charge does not mean that every library service must be free. Some activities or services that are offered in a library, like some activities or services in a school, might not be an integral part of its educational mission. For example, although lending books and other materials is at the core of a library's function, providing a patron with a permanent personal copy of material is not; therefore, a library may charge for copying service.

In addition, the State Board has the authority to decide that various other conveniences may be subject to charge. In its proposed regulation, the State Board directs that each county library board describe its "[c]harges for utilities or conveniences available to library users, such as copying machines, coin-operated typewriters or other equipment, and pay computers for experienced users." COMAR 13A.05.04.06A(3).

Fees may also be imposed as a means of enforcing restrictions on patron use of otherwise free material. Libraries have historically placed limitations on the numbers of items permitted to be borrowed as well as on the duration of borrowing. Limitations of this kind are obviously necessary if libraries are to "provide the widest possible access to library and information resources of this State" and to "[e]nsure more effective and economical services to all library users." ED §23-101(b)(2). These restrictions would become meaningless if libraries lacked the power to enforce them through charges. The "free library service" requirement in ED §23-305(b)(1) has never been understood to prohibit fees of this kind, and we do not construe it that way now.8

IV
Conclusion

In summary, it is our opinion that the public libraries of this State generally must provide access to their information resources without charge, regardless of the format in which the information is presented. However, public libraries may charge fees for the use of ancillary conveniences like copiers, typewriters, and computers for management of personal data. They may also charge fees when a patron exceeds reasonable limitations on the use of library resources. The proposed regulation of the State Board of Education on library services is consistent with this construction of the statute.

J. Joseph Curran, Jr., Attorney General
Christine Steiner, Assistant Attorney General

Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: Since the issuance of this opinion, the General Assembly added the following provision to ED §23-305: "In Baltimore and Prince George's Counties, the board of library trustees may permit a library to charge fees for the rental of video cassettes." ED §23-305(b)(2). See Chapter 773 (Senate Bill 782), Laws of Maryland 1988.

1 This conclusion confirms prior advice on the matter. Letter from Assistant Attorney General Richard E. Israel to Delegate Joan B. Pitkin (February 20, 1987).

2 Public libraries in the State of Maryland have a venerable history. In 1696, the Maryland Assembly passed one of the earliest pieces of colonial library legislation, providing that Rev. Thomas Bray's Annapolitan Library, consisting of 1,095 volumes, should be housed in a public office at the State House in Annapolis so that "any person desirous to study or read any of these said books may have recourse thereunto and the use thereof." E. Stone, American Library Development, 1600-1899, at 211 (1977) ("Library Development"). In 1704, the General Assembly passed an "act for securing the Parochial Libraries of this Province," which provided for a province-wide library system, called "parish libraries," under the general control of the church, with local commissioners appointed by the Governor. Library Development at 212. In Chapter 377 of the Laws of Maryland 1872, the General Assembly enacted a comprehensive revision of the laws on public education. One section of that law provided that, "[f]or the further encouragement of education, district libraries ought to be established in each school-house district . . ." out of funds appropriated for school purposes.

3 This requirement originated in Chapter 515 of the Laws of Maryland 1898, which declared that: "Every library and reading room established under this Act shall be forever free to the use of the inhabitants of the town or city where it is located, always subject to such reasonable rules and regulations as the library board may adopt, in order to render the use of said library and reading room of the greatest benefit to the greatest number of the people . . . ."

4 In a different context, the Court of Appeals has recognized that modern educational needs are more diverse than those of the nineteenth century, and the construction of the provisions of the Constitution dealing with the public schools ought likewise to be construed flexibly. Clauss v. Board of Educ., 181 Md. 513, 522-23 (1943).

5 The opinion implied that fees for instruction outside a school's courses would not necessarily be forbidden. In its regulations, the State Board of Education authorizes local boards to charge a fee "for any driver education program or portion of a program offered outside of the established school day or school year." COMAR 13A.04.03.05A(1).

6 Librarians once debated whether fiction should be included in public library collections. Library Journal, Sep.-Oct. 1879, at 367. The debate itself now seems quaint. As the first Director of the Enoch Pratt Free Library observed, perhaps with equal parts insight and resignation: "The public library is most connected with the civilization of the age, so closely that the two are becoming almost inseparable." Steiner, The Future of the Free Public Library, Library Journal, Dec. 1890, at 45.

7 The Attorney General of California has characterized the import of that state's "free library service" requirement similarly: "If the transaction involves the satisfaction, with library resources, of a patron's request for information (whether for education, recreation, or entertainment purposes), such transaction is a 'library service.'" 61 Op. Att'y Gen. 512 (Cal. 1978). See also Op. Att'y Gen. 26-84 (Wis. 1984).

8 The classic charge is a per-day fine for overdue books. Its contemporary analogue would be a charge for an "excess" computer search, i.e., beyond reasonable, generally applicable limits of cost or time. See proposed COMAR 13A.05.04.06A(2).