RAQs: Recently Asked Questions

Topic: Contract Employees and FOIL - 09/27/2022
Does a contractor have to comply with FOIL request if they are contracted to a county go...
Posted: Tuesday, September 27, 2022 Permalink

MEMBER QUESTION

Does a contractor have to comply with FOIL request if they are contracted to a county government?

We have a [person] requesting information about a Security Guard who is a Contract Employee (employed by another government entity). All I know is the Guard's 1st name- which is on no paperwork we have. I have already told the requestor that the Guard is employed by an outside company. We are [REDACTED] County government and contract through [REDACTED Other Public Agency] - What do we have to do legally?

WNYLRC ATTORNEY'S RESPONSE

New York's Freedom of Information Law, or “FOIL”, applies to government agencies (including public libraries) but cannot be used to compel private companies (or individuals) to allow inspection or copying or records.

So, in the scenario described by the member, the private company employing the guard is not subject to FOIL, but the library is, as is the county, so information about the security company can be accessed.

Of course, that doesn't mean a person gets everything they might want, but it does mean that information about private companies working for public entities can be accessed.

We'll talk about this in more detail, but to illustrate my point, here is a short, one-act play:

CITIZEN (to security guard at public library): Who are you?!?! The Power of FOIL compels you!

SECURITY GUARD: Well, as you can see on my ID, my name is Phil. But I am not subject to FOIL.  Ask my boss.

CITIZEN (to Phil's private employer, whose company name and logo are on the ID): Who is that guy "Phil"?!? What's his last name and his qualifications?!? What does he get paid a year?!? The Power of FOIL compels you!

PRIVATE SECURITY COMPANY:  We're so glad you like Phil! We do, too. Unfortunately, we are not subject to FOIL, and we don't provide information about private employee to third parties.

CITIZEN (to the library): Your private security company is hiding information! Tell me everything about Phil! EVERYTHING!!! The Power of FOIL compels you!

LIBRARY (answering within 5 days): Your request is a bit broad, but we do have records relating to how we arranged the services of a security company through the County. Would you like to inspect those records, or be provided with copies?

CITIZEN (to the county): I don't just want to know "the arrangement," I want to know about Phil, the actual guy providing security at the Library!  Give me all the information you have on him!!! The Power of FOIL compels you!

COUNTY (replying within 5 days, and helping to narrow down the request): We are not quite sure what you're asking for, but we can definitely provide information about the security company. Do you want just the contract, or the complete procurement process, including their proposal?

[End Scene]

Of course, in this (hopefully fictional) scenario, the citizen asking for the information might not be able to get (such as what "Phil" is making per hour, or Phil's address, or Phil's resume). But if the information the person is really hoping to access falls into the accessible materials held by an entity subject to FOIL (like a county or a public library), they will hopefully get what they need.

Unfortunately, we live in a world where many times requests under FOIL can be perceived as aggressive. And sometimes the FOIL request is clearly being made by a person with an axe to grind.[1]

That's one of the many prices, to be cheerfully paid, of living in a democracy. Good government thrives on transparency, and prompt disclosures show respect for the public, as well as competence.

In my experience, the best way for an entity subject to FOIL to de-escalate any hostility accompanying a FOIL request is to:

  • Always require that employees be treated with respect;
  • Have a clearly articulated and easily located FOIL policy;
  • Have clarity within the organization as to who is responsible for requests and appeals under FOIL[2];
  • Maintain records in such a way that FOIL requests are easy and economical to fulfill;
  • Allocate time and budget to train the person responsible for responding to FOIL request, so they know what to do (and when to consult a lawyer).

All of the above-listed bullets can be achieved through a policy that sets out the proper timelines and procedures for following the law.

The great thing about a FOIL request being submitted to a library is that if there is one thing librarians know how to do, it's how to help people find information. So, unlike other "agencies" subject to FOIL, where records management and disclosure can be perceived as a hassle, in some ways, fulfilling a FOIL request is just business as usual: enable access.

The below "Template Public Library FOIL Policy" is based on the model policy supplied by the New York State Committee on Open Government (the COOG), found at https://opengovernment.ny.gov/freedom-information-law.  Since it is right from the COOG (with a few added bells and whistles from me), it checks all the boxes on mandatory reply times, providing copies, and how to reply to a request.

Having a policy, and a posting a summary setting out how to request a library record under FOIL, is a good way to diffuse any tension underlying a FOIL request.

As with any template, before a public library's board passes a version based on this one, it is best to have it reviewed by your library's lawyer.

 

NAME Public Library FOIL Compliance Policy

 

Date adopted: INSERT

To be posted at: INSERT

Position primarily responsible for coordinating compliance: INSERT

 

Records Access Officer: INSERT

 

FOIL Appeal Officer: INSERT

 

Position Responsible for annual check of Subject Matter list: INSERT

 

Review annual at the MONTH meeting by the Trustees to ensure familiarity, compliance, and budget support.

Appendix: Model FOIL Notice for posting

 

Related policies: Record Retention Policy

 

Section 1: Purpose and scope of this FOIL Compliance Policy:

The NAME Library (the "Library") believes in the right of the People to know the process of decision-making and to have access to the documents and information underlying the operations of the Library.  

In addition, a part of the mission of the Library is to enable access to information the public is entitled to.

To that end, the Library shall furnish to the public the information and records required by the Freedom of Information Law, using this policy to enable, effect, and document such compliance.


Section 2: Designation of Library Records Access Officer:

  1. The Library designates the following person(s) as "Records Access Officer(s)":

Job title or name:  _____________________________________________

Business address: _____________________________________________

Email address: ________________________________________________

  1. The Records Access Officer is responsible for ensuring appropriate library response to public requests for access to records, and shall ensure that the Library:
    1. Maintains an up-to-date subject matter list of type of Library records, based on the categories of documents in the LGS-1[3].
    2. Assist persons seeking public library records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records.
    3. Contact persons seeking records when a request is voluminous or when locating the records involves substantial effort, so that personnel may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of records requested.
    4. Upon locating the records, take one of the following actions:
      1. Make records available for inspection; OR,
      2. Deny access to the records in whole or in part and explain in writing the reasons therefor.
    5. Upon request for copies of records:
    6. Make a copy available upon payment or offer to pay established fees, if any, in accordance with Section 8 of this Policy; OR,
    7. Permit the requester to copy those records under appropriate supervision to ensure the records' physical integrity.
    8. Upon request, certify that a record is a true copy; and
    9. The NAME Library is not the custodian for such records; OR,
    10. The records of which NAME Library is a custodian cannot be found after diligent search.
    11. Upon failure to locate records, certify that;


Section 3: Location

Records shall be available for public inspection and copying at:

(Location)____________________________________

(Address)____________________________________

____________________________________________

____________________________________________

____________________________________________


Section 4: Hours for public inspection:

Requests for public access to records shall be accepted and records produced during all hours the Library is regularly open for business, however, timing of fulfillment will be impacted by staff capacity.


Section 5: Requests for public access to records

  1. A written request may be required, but oral requests may be accepted when records are readily available.
  2. If records are maintained on the internet, the requester shall be informed that the records are accessible via the internet and in printed form either on paper or other information storage medium.
  3. A response shall be given within five business days of receipt of a request by:
    1. informing a person requesting records that the request or portion of the request does not reasonably describe the records sought, including direction, to the extent possible, that would enable that person to request records reasonably described; OR,
    2. granting or denying access to records in whole or in part; OR,
    3. acknowledging the receipt of a request in writing, including an approximate date when the request will be granted or denied in whole or in part, which shall be reasonable under the circumstances of the request and shall not be more than twenty business days after the date of the acknowledgment, or if it is known that circumstances prevent disclosure within twenty business days from the date of such acknowledgment, providing a statement in writing indicating the reason for inability to grant the request within that time and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part; OR,
    4. if the receipt of request was acknowledged in writing and included an approximate date when the request would be granted in whole or in part within twenty business days of such acknowledgment, but circumstances prevent disclosure within that time, providing a statement in writing within twenty business days of such acknowledgment specifying the reason for the inability to do so and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part.
  4. In determining a reasonable time for granting or denying a request under the circumstances of a request, the Library shall consider the volume of a request, the ease or difficulty in locating, retrieving or generating records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed, the number of requests received by the agency, and similar factors that bear on the ability to grant access to records promptly and within a reasonable time.
  5. A failure to comply with the time limitations described herein shall constitute a denial of a request that may be appealed. Such failure shall include situations in which the Records Access Officer (or other employee):
  6. fails to grant access to the records sought, deny access in writing or acknowledge the receipt of a request within five business days of the receipt of a request; OR,
  7. acknowledges the receipt of a request within five business days but fails to furnish an approximate date when the request will be granted or denied in whole or in part; OR,
  8. furnishes an acknowledgment of the receipt of a request within five business days with an approximate date for granting or denying access in whole or in part that is unreasonable under the circumstances of the request; OR,
  9. fails to respond to a request within a reasonable time after the approximate date given or within twenty business days after the date of the acknowledgment of the receipt of a request; OR,
  10. determines to grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request, but fails to do so, unless the agency provides the reason for its inability to do so in writing and a date certain within which the request will be granted in whole or in part; OR,
  11. does not grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request and fails to provide the reason in writing explaining the inability to do so and a date certain by which the request will be granted in whole or in part; OR,
  12. responds to a request, stating that more than twenty business days is needed to grant or deny the request in whole or in part and provides a date certain within which that will be accomplished, but such date is unreasonable under the circumstances of the request.


Section 6: Subject matter list

  1. The Library shall maintain a reasonably detailed current list by subject matter of all records in its possession, based on the categories of records set forth in the LGS-1, whether or not records are available pursuant to subdivision two of Section eighty-seven of the Public Officers Law.
  2. The "Subject Matter List shall be sufficiently detailed to permit identification of the category of the record sought; the LGS-1 breakdown and description of record categories is the default system the Library shall use.  Whenever possible, this Subject Matter List shall accord with the categories in the Library's [Document Retention and Destruction Policy OR equivalent].
  3. The Subject Matter List shall be updated annually by POSITION. The most recent update shall appear on the first page of the subject matter list.


Section 7: Denial of access to records

  1. Denial of access to records shall be in writing stating the reason therefor and advising the requester of the right to appeal to the individual or body established to determine appeals, [who or which] shall be identified by name, title, business address and business phone number.
  2. If requested records are not provided promptly, as required in Section 5 of this policy, such failure shall also be deemed a denial of access.
  3. The following "FOIL Appeal Officer" shall determine appeals regarding denial of access to records under the Freedom of Information Law:
    Name: ___________________________________________________


Title or position: ____________________________________________

Address for FOIL purposes:___________________________________

_________________________________________________________

Phone number:____________________________________________
 

  1. Any person denied access to records may appeal within thirty days of a denial.
  2. The time for deciding an appeal by the individual or body designated to determine appeals shall commence upon receipt of a written appeal identifying:
    1. the date and location of requests for records;
    2. a description, to the extent possible, of the records that were denied; and
    3. the name and return address of the person denied access.
  3. A failure to determine an appeal within ten business days of its receipt by granting access to the records sought or fully explaining the reasons for further denial in writing shall constitute a denial of the appeal.
  4. The person or body designated to determine appeals shall transmit to the Committee on Open Government copies of all appeals upon receipt of appeals. Such copies shall be addressed to:

    Committee on Open Government
    Department of State
    One Commerce Plaza
    99 Washington Avenue, Suite 650
    Albany, NY 12231
     
  5. The person or body designated to determine appeals shall inform the appellant and the Committee on Open Government of its determination in writing within ten business days of receipt of an appeal. The determination shall be transmitted to the Committee on Open Government in the same manner as set forth subdivision (f) of this section.


Section 8: Fees

  1. There shall be no fee charged for:
    1. inspection of records;
    2. search for records; or
    3. any certification pursuant to this part.
  2. Copies may be provided without charging a fee.
  3. Fees for copies may be charged, provided that:
  4. the fee for copying records shall not exceed 25 cents per page for photocopies not exceeding 9 by 14 inches. This section shall not be construed to mandate the raising of fees where agencies or municipalities in the past have charged less that 25 cents for such copies;
  5. the fee for photocopies of records in excess of 9 x 14 inches shall not exceed the actual cost of reproduction; or
  6. an agency has the authority to redact portions of a paper record and does so prior to disclosure of the record by making a photocopy from which the proper redactions are made.
  7. an amount equal to the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record, but only when more than two hours of the employee’s time is necessary to do so; and
  8. the actual cost of the storage devices or media provided to the person making the request in complying with such request; or
  9. the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency’s information technology equipment is inadequate to prepare a copy, and if such service is used to prepare the copy.
  10. The fee an agency may charge for a copy of any other record is based on the actual cost of reproduction and may include only the following:
  11. When the Library has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, or when doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the Library shall retrieve or extract such record or data electronically. In such case, the Library may charge a fee in accordance with Section 8.3 above.
  12. The Library shall inform a person requesting a record of the estimated cost of preparing a copy of the record if more than two hours of an agency employee’s time is needed, or if it is necessary to retain an outside professional service to prepare a copy of the record.
  13. The Library may require that the fee for copying or reproducing a record be paid in advance of the preparation of such copy.


Section 9: Public notice

A notice containing:

  • the title or name and business address of the Library Records Access Officer
  • the title or name and business address of the Library's FOIL Appeal Officer
  • the location where records can be seen or copied

shall be posted in a conspicuous location in the Library, and on the Library website at ADDRESS.


Section 10: Severability

If any provision of these regulations or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of these regulations or the application thereof to other persons and circumstances.

 

NAME Public Library FOIL Compliance Public Notice

 

Date adopted: INSERT

To be posted at: INSERT

Position primarily responsible for coordinating compliance: INSERT

 

Records Access Officer: INSERT

 

FOIL Appeal Officer: INSERT

 

Position Responsible for annual check of Subject Matter list: INSERT

 

Review annual at the MONTH meeting by the Trustees to ensure familiarity, compliance, and budget support.

Appendix: Model FOIL Notice for posting

 

Related policies: Record Retention Policy

 

YOU HAVE A RIGHT TO SEE YOUR LIBRARY'S PUBLIC RECORDS

The amended Freedom of Information Law ("FOIL"), which took effect on January 1, 1978, gives you the right of access to many public records, including many of those related to the operation of your public library.

Records related to the Library, if not considered exempt from FOIL, can be seen and copied at:

(Location)____________________________________

(Address)____________________________________

____________________________________________

____________________________________________

____________________________________________

 

The following Library employee(s) will help you to exercise your right to access:

Library Records Access Officer(s)

(name)_____________________________________________

(job title)____________________________________________

(business address)_____________________________________

____________________________________________________

(phone #)____________________________________________

 

If you are denied access to a record, you may appeal to the following person(s) or body:

(name)_____________________________________________

(job title)____________________________________________

(business address)_____________________________________

____________________________________________________

(phone #)____________________________________________

 



[1] I personally have ground down at least three metaphorical axes, making FOIL requests over the years.

[2] These will be different people/groups.

[3] LGS-1 is the NYS Archives Retention and Disposition Schedule for New York Local Government Records and can be found at: http://www.archives.nysed.gov/records/local-government-record-schedule/lgs-1-title-page

 

Tags: FOIA/FOIL, Policy, Public Libraries, Record Retention, Records Management, Templates

Topic: Libraries and NYS Concealed Firearms Law - 09/26/2022
The NYS law requiring people to demonstrate a reason to conceal carry a weapon has been ...
Posted: Monday, September 26, 2022 Permalink

MEMBER QUESTION

The NYS law requiring people to demonstrate a reason to conceal carry a weapon has been overturned by the Supreme Court. What this means for libraries. Is there anything we can do to prevent guns in the library?

 

WNYLRC ATTORNEY'S RESPONSE

When New York’s "proper-cause requirement" for obtaining an unrestricted license to carry a concealed firearm was struck down by the United States Supreme Court on June 23, 2022[1], the New York State Legislature--in a state still reeling from fatal gun violence in Buffalo just weeks before--swiftly passed laws to replace it.[2]

The law they passed on July 1, 2022 was a different approach than "proper cause". Rather than require someone to prove they had a reason to carry a concealed weapon; it removed that SCOTUS-invalidated section from the Penal law, and added Section 265.01-e of the New York State Penal Law: "Criminal possession of a firearm, rifle or shotgun in a sensitive location".

255.01-e goes into effect on September 1, 2022.   It provides:

1. A person is guilty of criminal possession of a firearm, rifle or shotgun in a sensitive location when such person possesses a firearm, rifle or shotgun in or upon a sensitive location, and such person knows or reasonably should know such location is a sensitive location.

2. For the purposes of this section, a sensitive location shall mean:

(a) any place owned or under the control of federal, state or local government, for the purpose of government administration, including courts;

(b) any location providing health, behavioral health, or chemical dependance care or services;

(c) any place of worship or religious observation;

(d) libraries, public playgrounds, public parks, and zoos; ...

Criminal possession of a firearm, rifle or shotgun in a "sensitive location" is a class E felony.  [emphases added; rest of law is below answer]

So, the very plain answer to the member's question is: libraries that inform visitors that the area is a "sensitive location" per Penal Law 255.01-e can bar firearms, rifles, and shotguns on library property.

There are a few practical considerations for this:

1.  Because enforcement of the law requires people to be aware of it, libraries should maintain a map of their property and use it to develop signage that informs those licensed to carry firearms of the applications of the law.

2.  Libraries should work with their local law enforcement and/or private security to be sure their plan for 255.01-e enforcement is well-thought out, is in a written policy passed by the Board, and is practiced plan for enforcement.

3.  Libraries should not rely solely on 255.01-e for assurance of safety, but rather, should consider it another tool in the box (other tools are: a workplace violence prevention policy, an all-hazards response plan, and customized safety measures).

4.  Libraries with shared spaces should meet with their neighbors to assess the application of the law in common areas (note: many of the entities libraries tend to share spaces with--historical societies, community centers, town buildings, etc.--are "sensitive locations" too; see the rest of the list below).

5.  Libraries in areas where local law already restricts firearms in certain areas should explore how this new "sensitive location" law interacts with the laws in their municipality (a job for the library's lawyer).

6.  Libraries in areas immediately adjacent to places where people go hunting should pay particular attention to the 255.01-e's modifications for hunters, and be ready to enforce the law with suitable refinements.[3]\

7.  Since enforcement of 255.01-e depends on a person being clearly informed of the area being a "sensitive location", signage should be developed carefully, and reviewed by an attorney before posting.

And now, let's talk about the hard part: diplomacy.

The U.S. Supreme Court's decision to strike down the "proper cause" requirement brought dismay to some, and satisfaction to others.  The reaction to New York's swift response in creating new gun control measures will likely be similarly schismatic. Since a good implementation of 255.01-e will require thorough discussion of it, I think it might be helpful to provide some additional information for perspective.

But before we do that, I will share a small story.

In 2021, I attended a pistol permit class.  A colleague of mind had obtained her permit and invited me to target practice, and since I am a relentless seeker of skills, I wanted to give it a try, and getting a permit was the only way onto the range.

While at my pistol permit class, I learned (or re-learned) several things, the most repeated one being: never point a gun at something you don't want to shoot.[4]

As it turned out, I finished the class, but I didn't apply for a pistol permit. Rather than become a casual weekend target shooter, I opted to learn welding[5], instead.  But I do remember something from the class that is relevant to this answer; when the instructor coached us on how to fill in the application for a pistol permit, he explained how if you wanted to conceal-carry, we would need a special reason (a "proper-cause" as discussed by the Supreme Court)...and then assured the females in the room that for us, it was probably enough of a safety risk that we were women--but the men should be ready with a bit more justification.

If you ever meet me out when I am feeling chatty, we can unpack the implications of this assurance.[6] For now, I'll say, when presented with this, my first thought was: this does not seem consistent with the U.S. Constitution.

It's not every day I find myself aligned with Justice Thomas (who wrote the majority opinion scuttling "proper cause") but for this one, I actually get it.

Which brings me to a cool thing about law, and the reason that despite its ups and downs, I cherish my profession.

In ruling that NY's "proper cause" requirement violated the Second and Fourteenth Amendments, Judge Thomas wrote:

After holding that the Second Amendment protected an individual right to armed self-defense, we also relied on the historical understanding of the Amendment to demark the limits on the exercise of that right. We noted that, “[l]ike most rights, the right secured by the Second Amendment is not unlimited.” Id., at 626. “From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

...

For example, courts can use analogies to “longstanding” “laws forbidding the carrying of firearms in sensitive places such as schools and government buildings” to determine whether modern regulations are constitutionally permissible. Id., at 626. That said, respondents’ attempt to characterize New York’s proper-cause requirement as a “sensitive-place” law lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a “sensitive place” simply because it is crowded and protected generally by the New York City Police Department. Pp. 17–22.

So, the Supreme Court trashed New York's law as unconstitutional, but while doing it, reinforced other elements of Second Amendment jurisprudence related to "sensitive spaces." 

The NY Legislature, taking Hon. Thomas at his word, has now created a lengthy list of "sensitive spaces"...and while it doesn't quite cover the entire "Isle of Manhattan", it is a very comprehensive list.

          In addition to the "sensitive locations" listed above, it includes:

(e) [licensed child care providers];

(f) nursery schools, preschools, and summer camps;

(g) [programs] for people with developmental disabilities;

(h) the location of any program licensed, regulated, certified, operated, or funded by office of addiction services and supports;

(i) the location of any program licensed, regulated, certified, operated, or funded by the office of mental health;

(j) the location of certain disability assistance programs;

(k) homeless shelters, runaway homeless youth shelters, family shelters, shelters for adults, domestic violence shelters, and emergency shelters, and residential programs for victims of domestic violence;

(l) residential settings licensed, certified, regulated, funded, or operated by the department of health;

(m)  educational institutions;

(n) public transportation...airports, train stations, subway and rail stations, and bus terminals;

(o) [any place where you can consume alcohol or cannibis];

(p)  theaters, stadiums, racetracks, museums, amusement parks, performance venues, concerts, exhibits, conference centers, banquet halls, and gaming facilities and video lottery terminal facilities as licensed by the gaming commission;

(q) any location being used as a polling place;

(r) any public sidewalk or other public area restricted from general public access for a limited time or special event that has been issued a permit for such time or event by a governmental entity, or subject to specific, heightened law enforcement protection, or has otherwise had such access restricted by a governmental entity, provided such location is identified as such by clear and conspicuous signage;

(s) any gathering of individuals to collectively express their constitutional rights to protest or assemble;[7]

(t) the area commonly known as Times Square.[8]

Will this list survive a challenge to the law, with people claiming they have a right to bear arms in some of these locations?  Here is the plain-language personal right that the list is up against;

It is undisputed that petitioners Koch and Nash[9]—two ordinary, law-abiding, adult citizens—are part of “the people” whom the Second Amendment protects. See Heller, 554 U. S., at 580. And no party disputes that handguns are weapons “in common use” today for self-defense. See id., at 627. The Court has little difficulty concluding also that the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct—carrying handguns publicly for self-defense. Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry. Moreover, the Second Amendment guarantees an “individual right to possess and carry weapons in case of confrontation,” id., at 592, and confrontation can surely take place outside the home. Pp. 23–24

Why do I bring this up?  I am from Central NY (raised in a pro-gun rights area) and my adopted hometown is Buffalo.  I know and respect people on both sides of the gun debate.  This issue isn't going away soon...and libraries that want to implement this law will need to discuss it.

So, when your library decides to adopt a 255.01-e policy and put up some signage, it is worth thinking deeply about the local character of your community, and how they will best absorb and honor this message. The law does not prescribe any particular way to designate how an area is posted as a "sensitive location;" your signage can sound as helpful and friendly--or as formal and stern--as you like. It can quote the law, or, so long as the final text is reviewed by an attorney, it can paraphrase it. The choice is yours, and can reflect the character and needs of your particular community.

Just as critical will be discussing with local law enforcement (or contract security) how this law will be enforced in your libraries.  Training staff to understand and speak knowledgeably about the policy will be critical, too.

Writing this from Buffalo, I wish we lived in the world where we didn't have to address this type of question for something so beautiful as a local library. But we do, and I am grateful for the person who submitted the question, and I wish you well as your libraries work with the new legislation.

 



[1] The case name is New York State Rifle & Pistol Association Inc. v. Bruen, and it can be found here: https://www.scotusblog.com/case-files/cases/new-york-state-rifle-pistol-association-inc-v-bruen/

[2] Called "AN ACT to amend the penal law, the general business law, the executive law, the civil practice law and rules and the state finance law, in relation to licensing and other provisions relating to firearms", it can be found here.

[3] Other exceptions or limits to the law pertain to: law enforcement; police officers as defined in subdivision thirty-four of section 1.20 of the criminal procedure law; peace officers; retired police officers; security guards as defined by and registered under article seven-A of the general business law, who have been granted a special armed registration card, while at the location of their employment and during their work hours as such a security guard; active-duty military personnel; a government employee under the express written consent of such employee’s supervising government entity for the purposes of natural resource protection and management; persons lawfully engaged in hunting activity, including hunter education training; persons operating a program in a sensitive location out of their residence, as defined by this section, which is licensed, certified, authorized, or funded by the state or a municipality, so long as such possession is in compliance with any rules or regulations applicable to the operation of such program and use or storage of firearms. THIS LIST IS A SUMMARY; check the law when generating policy.

[4] Or as was recited in one of my favorite "Rumpole of the Bailey" stories:  "Never, never let your gun, pointed be at any one; that it might not loaded be, matters not the least to me."

[5] I now have my D1 pre-certification, which means I spent a lot of time welding in 2021 and 2022.

[6] Words like systemic, and sexism, and stereotyping, and violence, and culture will be bandied about.

[7] Prediction: this one will be the one that gets struck down by the Supreme Court in 2026 or so.  It's a First Amendment/Second Amendment bump-set-spike combo. As of this writing, cases are already being brought to challenge the new law.

[8] Don't use this list for research, I tried to pare it down by removing citations and qualifiers.

[9] The men who brought the case up through to the Supreme Court.

 

Tags: Policy, Public Libraries, Safety, Firearms

Topic: First Amendment Audits on Youtube -09/26/2022
There are reports of first amendment audits happening in rural towns and villages. Public librarie...
Posted: Monday, September 26, 2022 Permalink

MEMBER QUESTION

There are reports of first amendment audits happening in rural towns and villages. Public libraries are limited public forums - how can we stop the filming, as quietly as possible without causing a social media frenzy.

 

WNYLRC ATTORNEY'S RESPONSE

For a person who hasn't run into this concept yet, a so-called "First Amendment audit" is an increasingly popular trend where people visit government buildings and demand access to information--along with the privilege to film on site--all in the name of the law, democracy and transparency.

As a lawyer and U.S. citizen, I am all for the law, democracy, and transparency.

The concern raised by the member is that so-called "First Amendment auditors" don't just pop by their local town hall to live out a civics lesson.  Most of these folks are "monetized", meaning they post their recordings on YouTube...for money.  And since nothing draws in viewers like controversy, in the quest to get tens of thousands of hits, "First Amendment auditors" often[1] swap law, democracy, and transparency for rhetoric, bullying...and borderline harassment.

How do these YouTubers[2] create this concern?  As can be seen in their videos, they often come out swinging: filming or streaming while walking around as if "casing" a civic building, knowing that for some workers, this will cause concern.  Further, if/when confronted about what they are doing (usually some version of "Can I help you?") the best YouTubers are masters at using standoffish nonchalance, or passive-aggressive behavior, to trigger suspicion and fear.

Sadly, however, it is sometimes the fearful or angry reaction of those being filmed (town clerks, other employees) that tips things into a legal quagmire...and creates "click-worthy" material.

While mainly focused on municipal buildings (town halls, village halls, etc.) a growing sub-set of "First Amendment auditors" are visiting public libraries. I'd put a link in to some of the more egregious examples that have been created in New York in the last year or two, but I don't want to make money for these folks (they are doing just fine without me).  Let's just say that when the YouTuber is able to hit all the right pressure points, they can really tick off a civil servant--including a librarian.

The frustrating thing is that this doesn't have to happen.

Libraries--even those wholly housed within a municipally-owned structure--are, as the member says, "limited public forums" meaning that the library gets to set policy and rules imposing reasonable, operationally-related parameters on speech ("speech" in First Amendment jurisprudence, includes the right to film and access information).

Among other things, this means that libraries can totally bar or limit filming to certain areas of the library.

Of course, such a bar or limit can't be arbitrary--it must be "rationally related" to the operational needs of the library.  But so long as there is a "rational relationship" between the policy and the needs of the library, such a bar can be enforced.[3]

This means that through policy, a library can decide that patron confidentiality, information access, and the library's overall service to the public require limiting recording and/or streaming on site--a rule that can be enforced just like rules to be quiet in certain rooms, to not eat in certain areas, and to not deface any of the books.[4]

This means that the confident swagger many YouTubers bring to their "audit" game can be met, in the field, with a series of rules restricting their behavior--something (from what I've seen) that many YouTubers are not emotionally nor intellectually ready to honor in the moment.  In other words, just because your policy is legal, doesn't mean a YouTuber will magically turn their camera off!

So enforcing such policy requires forethought...especially since most YouTubers know that if they can get in an argument with a librarian, they will double (or triple) their number of hits.

So, as the member asks: "[H]ow can we stop the filming, as quietly as possible without causing a social media frenzy?"

Here are 10 different tactics[5]:

Have a Policy

Have a policy regarding filming in the library, and make sure that any decision to bar filming is rationally related to library priorities such as protecting patron confidentiality, respect for employees, and smooth operations.[6]

Use Good Signage

However your library decides to exercise its rights as a limited public forum, once it is confirmed in a policy, use prominent and effective signage to inform the public about the rules.

Transparency through FOIL

Since claiming the right to film anywhere in a public library is only part of the YouTuber package, make sure your library has a clear policy and process for requesting library records through the New York State Freedom of Information Law (or "FOIL").[7]

Designated Non-Public Areas

All staff rooms, break rooms, and other areas not accessible to the public should be designated as "No Public Access", with appropriate means of securing the area.  Give your employees a place of refuge (and a place for private information to securely reside).

Select Your Library's Response and Non-Escalation Method

As we've discussed, if you argue with a YouTuber, you might as well just hand them money.

So, while there is no one "right" way to resist escalating a situation, each library should pick its own particular brand of how to keep interactions with YouTubers civil, non-confrontational, and above all very, very, very boring.

For those libraries that do allow filming (whether without restriction,[8] or with some limits), but want to be part of the narrative, I like the idea of chatty engagement about the library's mission, services, and budget (and fundraising).  After all, the YouTuber is there to get information...why not provide it?  Think of the YouTuber's visit as a chance to inform the public of the history of the library, to showcase its services, and alert the public as to how they can donate money to support special initiatives (this is a good reason to have a copy of the library's annual report on hand). If YouTube is helping to draw attention to your library, you might as well put your best foot forward!

For those libraries that don't allow filming, or restrict it to certain times/areas, ensuring that a person who is attempting to film in the library is aware of the duly authorized and posted policy is essential.  After that, if a person persists in violating the policy, a response is down to what enforcement method is selected and practiced, which can include a combination of:

  • Policy enforcement in the moment (using practiced security procedures);
  • Policy enforcement after the moment (the recording happens without confrontation, but there is a subsequent action for trespass, or other action under Code of Conduct);
  • Deliberate non-engagement with the YouTuber using pre-determined language ("It is against our policy for you to film in this location"; and/or "You do not have my consent to film me, I consider it harassing; please stop." said once, calmly.[9]);
  • Use of pre-determined, quiet withdrawal of most employees into employee-only areas.

Do not argue. Do not debate. 

And finally, it is important to acknowledge: for some library employees, the visit of a YouTuber can feel threatening (remember, many of these entertainers are trying to get a rise out of people). So as with any other interaction with the public, the clear message to employees must be: Safety First.  If employees are feeling threatened, they should withdraw using the same protocol in place for other safety concerns.[10]

Practice, Practice, Practice

Once there is a policy and clear, engaging signage, set aside time to train employees in the policy, and give them time to practice addressing YouTubers in a non-confrontational manner.  Use role-playing techniques (done right, this can be a fun exercise, even though the actual event might not be so fun).

Coordinate with Security

Not all libraries have private security, but for those that do, make sure they understand what is at stake when dealing with a YouTuber; include security personnel in the practice sessions (if time and budget allow). At the bare minimum, confer with the local police department to know what the response will be if the situation warrants intervention by law enforcement.[11]

Remember: YouTubers are Human, Too

I know it can be hard to recall when someone is pointing a camera in your face and wandering about your library looking like they are creating a map of its security vulnerabilities, but one thing I've learned from working with libraries who have lived through a "First Amendment audit"[12] is that very often the visitor is a member of the community.

In fact, some libraries have received calls from national groups in advance alerting them that a longstanding member of the community will be visiting to film!  (I suspect the "advance warning" was to create an adrenalin rush, but the library was able to use its long-standing relationship with the person to make it a positive interaction.)

So long as a library employee dealing with a YouTuber feels confident about their safety, thinking about the YouTuber as a person who is genuinely curious about your library, and treating them as just another patron on a quest for information, can help cut down on click-bait drama--and serve the mission of the library to provide access to information.

Maintaining that type of perspective is easier if the employee is:

          a) confident that they know the library's policy about filming in the library;

          b) confident that the policy is clearly posted;

          c) confident that the library is on solid legal ground;

          d) confident of how the library as a whole responds to Code of Conduct violations;

          e) confident that the library abides by the law governing access to information; and;

          f) confident about if/how to engage, because they have practiced techniques for positive interactions and non-escalation, and they know leadership will have their back.

And that is how a library can turn YouTube drama into a non-dramatic civics lesson. It is not fool-proof, because if a person is determined to enter a library and create a scene, they will create a scene. But with good policy and practice, a library and its employees won't contribute to it.

Thank you for a great question!

 



[1] I say "often" because there are some people out there who get this right--and if we are now getting our civics lessons on YouTube, I want to give credit when it is due.

[2] I will not call them "auditors". In my world, an "auditor" reviews your financials, and looks for holes in your fiscal controls.  I call them "YouTubers" or "person recording in the library" because that is a more accurate appellation.

[3] For more on that, see the training video and related materials from the Empire State Library Network's presentation, “Libraries and First Amendment Audits,” which are available through the links found here. This resource also spends a lot more time on the legal underpinnings of what I am summarizing in this "Ask the Lawyer"...so if you want more info on this topic, that's the place to go!

[4] In New York, it is also a crime to deface library books...but it can still also just be a violation of policy!

[5] I urge any library considering any of these to view the ESLN materials, and to discuss their selected tactics with their lawyer.

[6] A model policy is included in the ESLN materials.

[7] For more on that, see the Ask the Lawyer response found here.

[8] At the bare minimum, a policy barring filming of: other patrons without written consent, computer screens, the reference desk, and the circulation area(s) is wise.

[9] This can come in handy later, during efforts to remove a video or to pursue other consequences as a result of the behavior.

[10] If the library currently doesn't have protocols for this, a visit with local law enforcement, private security, or a consultant to develop them is a very high priority. This can go hand-and-and with an OSHA-style "Workplace Violence Prevention Policy."

[11] Only your library can determine what the trigger for calling law enforcement is.  This is something to be discussed and (yes) practiced.

[12] To hear from these libraries, check out the ESLN training materials I keep mentioning!

 

Tags: First Amendment, Policy, Privacy, Public Libraries, Safety

Topic: Yearbook Copyright Status - 09/20/2022
We at [redacted higher ed institution] are considering digitizing our past yearbooks and storing t...
Posted: Tuesday, September 20, 2022 Permalink

MEMBER QUESTION

We at [redacted higher ed institution] are considering digitizing our past yearbooks and storing them in an institutional repository which has the option of materials being password protected or available publicly. We are also considering using these photos in future advertising materials. I was wondering what is the best practice for determining the copyright status of the photographs in these yearbooks? Should we attempt to contact the subjects of the yearbooks to inform them that their yearbook photos will be published in our institutional repository or used in school advertising?

 

WNYLRC ATTORNEY'S RESPONSE

We have had a lot of questions about yearbooks over the years of Ask the Lawyer.[1]  We'll answer this submission with the understanding that for those who want further and deeper information, there's more to read in the "ATL" vault.

Regarding the yearbooks: Unless an institution hired an outside agency to compose the yearbook, the copyright to the complete book is owned by the school, which is most likely free to digitize or otherwise make copies of the books as a whole.[2]  However...

Regarding individual images/photos: If any images were generated by an outside[3] professional, they are likely still owned by that professional (or their heirs), which as the question alludes to, could complicate creating and using them.  In addition....

Regarding the images of former students: In New York, the use of a person's image for commercial purposes requires written permission.[4]  The law also requires permission to use the images of deceased people if they qualify as a "personality" (basically, a famous graduate).  So...

That means that for the uses described in the question, limiting liability is a 2-step process:

1.  Assess if the photos are still protected by copyright, and if they are, secure appropriate permission.  This can be tough, since the individual images will likely not be credited, and finding the original contract or documentation will be hard.  Further discussion of this step is below.

2.  Ask the former students for permission to use their image (an "image release").

This can be done in a way that is fun, simple, and reinforces the students' connection to the institution.  Here is a sample way to ask for a release:

Dear NAME:

[insert customized nice things from your institution as a greeting.]

We are reaching out to you in the hope that you will grant your permission to [SCHOOL NAME] to use this image for student recruitment and to promote awareness of [SCHOOL NAME]'s mission.  This means your name, and the picture we're including, would be in advertisements for [SCHOOL NAME].

If you agree, please sign below.

NAME, we appreciate you considering this request.  In addition, if you believe any of your classmates would be excited to help us out this way, please let us know!  [SCHOOL NAME] is always seeking ways to reinforce our connections to our alumni, while we also reach out to the alumni of the future.

 

[insert customized nice things in closing]

[signature]

LIMITED PERMISSION TO USE NAME AND IMAGE

This form can be signed and returned in the self-addressed, stamped envelope provided, OR a photo of the signed document may be taken and the image sent to INSERT EMAIL, whichever is easier for you.  If you send the document via email, please send your preferred telephone number for confirmation. 

Thank you for granting [SCHOOL NAME] this permission.

 

On this _____ day of _____________, ______, I, [PRE-INSERT NAME], agree that [SCHOOL NAME] may use my name and the above likeness for purposes of student recruitment and to promote awareness of [SCHOOL NAME]'s mission in any print medium, on the school's website, and in electronic advertising.

I appreciate that I can withdraw this permission and upon so doing, the school will immediately remove my name and image from the school's website, and from any advertising (print or electronic) as soon as the duration of the advertising contract expires.

 

SIGNATURE: ____________________________

 

Okay, that's the "image use" concerns.  Now, back to the copyright.

For professional photographers, the copyright to their images is part of their livelihood, so I very much appreciate that the member is thinking about that factor.  For amateur photographers who may have supplied their work, they are owners too, but ownership of the photo may have even fewer clues.

There are a few approaches to determining copyright ownership of "old"[5] yearbook photos.

To determine copyright ownership of "old" yearbook photos, you have to play detective.  Places where you may find "clues" about ownership include:

  • The credits of the yearbook
  • Old files from the yearbook committee
  • Procurement/purchasing records from the school's business department[6]

The best documentation related to professional portrait photos is usually an old contract or invoice, since the ownership and permission to use the photos--if ever confirmed in writing--would likely be there.

If you are lucky enough to determine the photographer, but not the terms under which they worked, if they are still alive (or the business is still in operation) you can reach out to them for permission (bear in mind, they could say no, and you may need to negotiate for a reasonable fee).

If your institution can't locate ANY information on the photographer, it has a choice: don't use any of the images; OR use the images knowing there is a risk of infringement, and limit that risk by engaging in "risk management."

"Risk management" includes:

  • Using images taken before 1927, since those are most certainly not protected by copyright;
  • Using the oldest images that can suit your institution's purpose, since the older the image, the less likely it is that there is a person or estate monitoring use of the photos and waiting to claim you need permission to use them;
  • Avoid using images of "famous" alumni, since photographers who know they once photographed a famous person during their freshman year, often recall that fact, and know they are sitting on a goldmine;
  • Documenting your search for records related to ownership, so you can show the institution made a good-faith effort to locate the owner.

With all that said, the quick answers to the member's questions are:

Question 1) There is no one way or "best practice" to determine post-1927 copyright status, but there are many ways to look for clues, and many of them can be used to reduce or eliminate potential liability for copyright infringement;

and

Question 2) Yes, if an academic institution is going to use photos of former students for advertising, it MUST get written permission from the person depicted.

Thank you for sending in these thoughtful questions!

 



[1] See “Ask the Lawyer” yearbook-related questions on FERPA; Request to remove scanned pages; Photo Copyright and Copying

[2] The exception to this is if permission to use the photos was limited to one print edition.  Contracts for yearbooks post 1995 (or so) may limit this, but "old" yearbook contracts likely will not contain a restriction on the method of the yearbook's duplication.

[3] "Outside" meaning not an employee of the school.

[4] For more on this, see "Ask the Lawyer" here and here.

[5] What age is an "old" yearbook photo these days?  I feel like the moment you open a yearbook and say: "Look at those clothes/hair!" the photos are "old."  So, maybe, pre-2010?

[6] This may seem far-fetched, but some places hoard this stuff.  I love going through those type of records because they showcase the history of printing and document duplication.

 

Tags: Academic Libraries, Copyright, Digitization and Copyright, Image Rights, Yearbooks, Advertising

Topic: Soliciting Donations for Public Libraries - 08/17/2022
We are beginning our long-range planning process and are asking patrons to fill out a community su...
Posted: Wednesday, August 17, 2022 Permalink

MEMBER QUESTION

We are beginning our long-range planning process and are asking patrons to fill out a community survey to assess what the community wants to see in the library now and in the future. Thinking it was a good idea to raffle off gift cards to encourage participation, I gave my board trustees a letter requesting a donation of gift cards. Another director told me I'm not supposed to have the board ask for donations in any form. This is something our Friends group should do. Please advise. Thanks in advance!

 

WNYLRC ATTORNEY'S RESPONSE

Following our "do not reinvent the wheel" rule for "Ask the Lawyer," prior to diving into this, we checked the "Trustees Handbook" posted at https://www.nysl.nysed.gov/libdev/trustees/handbook/handbook.pdf.  On page 57, it provides an excellent summation of the concern at play in the issue of trustees and fund-raising:

"Public library boards generally take care to separate private fundraising efforts (such as direct personal solicitations, as opposed to seeking grants from foundations or government agencies) from normal library operations and board activities since there are restrictions on the appropriate use of public funds." [emphasis added]

The Handbook then points out that this concern is why many public libraries use "Friends" to personally solicit and raise funds.

To this concern about limits on the use of public funds, I would add that when it comes to raising money, it is very easy for the solicitation to run afoul of charitable regulations, required accounting, and limits on allowed fund-raising activities (such as games of chance).

But does this caution merit a complete bar on such solicitations?

To explore that, let's explore the risks.  And we're also going to talk about "raffles", so hang in there, association libraries...this one's for you, too.

Before a board solicits gifts, it should have a full suite of "fiscal controls" and accounting practices to govern how the solicitation is done.  A policy on soliciting/accepting donations, and policy on fund-raising events, a policy on procurement...if a board ensures that its actions in soliciting gifts are following a legally compliant policy, this mitigates the risk of no-compliance.

Let's take the member's specific situation as an example: Could trustee solicitations of gift cards for a raffle used as an inducement to participate in a survey on library use be done carefully enough to avoid a concern?

Here are the risks in such an endeavor: the library is planning to 1) have trustees ask for donations of gift cards; 2) use the cards as an inducement to fill out a survey; then 3)  "raffle" the donated cards; then 4) use the answers from the survey "to assess what the community wants to see in the library now and in the future."

Of the 4 things listed above, only #1--the solicitation of the cards--doesn't give me pause.  If the library has a good donation acceptance policy, and the cards are donated per that policy, and the library follows the conditions for the donation...then it is just another donation.

#2 poses a risk that is pretty easy to mitigate with a little caution.  In the world of not-for-profits in New York, a "raffle" is a "game of chance".  This means a "raffle" can be considered "charitable gaming" which can require registration and particular accounting (see General Municipal Law of New York (Section 186), and registration).

However, as defined by law, a "raffle" in New York requires the purchase of tickets for payment of money.[1] Since the draw described isn't technically a "raffle" (it's a drawing), to avoid any confusion, it might be good to avoid using that word.[2]

In addition, if you have time, it would be good to call your local County Clerk to make sure they don't regard the use of raffle tickets without payment of money to be a "raffle."[3]

Okay, the "raffle" concern is pretty easy to ameliorate. My concerns about #2 and #4 are a little more subtle and tricky.

As stated, the library is hoping the lisupare[4] will inspire people to fill out a survey to assess what the community wants to.

This means that the library hopes to use the results of the survey to make decisions about such things as programming, collection decisions, and the library facility.  From the sound of it, the input could even be used to develop plans for renovation or new construction funded by a bond or other municipal funding initiative in the future.

I imagine you see where I am going here.  By offering a reward with a defined financial value for participating in the survey, the board would risk the assertion of a direct link between financial compensation and a person filling out the survey a certain way.

I know.  This seems ridiculous.  But complaints have been made about far more innocuous things.

To avoid this, I suggest the library consider a different approach to incentivizing broad community participation in the survey. For instance, each person who completes one gets a leaf ornament or token to hang on a display, so the community can see how many people have taken time out of their day to give their feedback to the library.[5]  In this scenario, the trustees could request donations of the ornaments or display (which can then become part of the library's stock of display materials) can just follow the usual policy for accepting donations.

I am sorry to have to write this; I hate throwing cold water at good ideas.  Further, I am not saying the "raffle" (uh, that's "lisupare") is outright wrong.  But libraries function in large part because of the love and trust they foster in the public.  While the notion of a chance to be selected for a monetary gift for taking the time to complete a library survey is lovely, I think it can be interpreted wrongly--either in the moment, or down the road. 

Thank you for trusting me with this question.[6]

 



[1] Per GML 186 3-b, a "raffle", when conducted by a not-for-profit in NY, is a " game of chance in which a participant pays money in return for a ticket or other receipt and in which a prize is awarded on the basis of a winning number..." etc.

[2] You could go with a made-up word like "lisupare" ["Lie-soo-puh-ray; noun; definition: a randomly given library survey participation reward.]

[3] To address this, I called the NYS Gaming Commission.  Let's just say that unless you are reporting suspected gaming crimes, the Commission doesn't like to get in touch over the phone.  So, then I scoured their materials on "charitable gaming" at https:/www.gaming.ny.gov/charitablegaming/.  While it is clear the law requires "payment" which is defined as "legal tender, check, or credit card", I didn't find anything ruling out a situation like the one described (people "paying" for a raffle ticket by performing a task).  So, getting assurance from your county clerk, who keeps an eye on local charitable gambling, is a good idea.  Hopefully, they will laugh at the very idea that this could be seen as a "raffle."

[4] See footnote #2.

[5] I am a lawyer, not a professional display-maker, so I have no doubt a library employee with experience making displays can come up with a much, much, MUCH better version of this.

[6] Just so readers know, I spoke with the director who submitted this question, who was very cool about all my agita.

 

Tags: Board of Trustees, Donations, Fundraising, Public Libraries

Topic: Permissions for Photos from Defunct Publications - 08/09/2022
An academic librarian relayed this question from a researcher/author: "I am in the stage of...
Posted: Tuesday, August 9, 2022 Permalink

MEMBER QUESTION

An academic librarian relayed this question from a researcher/author:

"I am in the stage of tracking down photo permissions and have found images originally published by U.S. presses from the late 1800s and early 1900s (1887, 1893) that are now defunct--hence I cannot request photo permissions from them. The images are posted online by historical societies, but I'm not sure if they're in the public domain or not.   I plan to reach out to the society publishing the images on their digital archives, and credit them for using the images, but is there any other factor to consider?"

 

WNYLRC ATTORNEY'S RESPONSE

First, some validation: the faculty member is wise to be considering this issue, since publishing contracts[1] almost always put the responsibility and liability for photo clearances on the author.

In this case, there are several layers of copyright ownership to consider: the original copyright of the photographer, the copyright of the books, and the copyright to any re- publication by which they are being made available (for instance, a digital archive).

Because of the publication dates (1887, 1893), the original copyrights (for the photograph and the original book), are most certainly expired.[2] The only concern would be if the images were somehow used to create a work with a "new" copyright...for instance, if the picture of the long-dead person was enmeshed with a picture of Janelle Monae on a rocket ship to Mars...which isn't the case here.

So, while in the law game there is a rule of "never say never," based on the dates, the images in this question should be free from copyright.  That said, as contemplated by the question, it is almost always a good idea[3] to extend a "courtesy acknowledgement" to a historical society, library or other archival resource that stewarded the image so it could be used for research. 

Even more important when using a digital source, however, is first confirming, and documenting, that the image isn't being taken from a website or repository in violation of any of their "terms of use" conditions.  Written confirmations from the archive, or keeping a screenshot of the "terms of use," image information, and metadata, are all good ways to do this.

Other risks of using old photographs for commercial publications are: the possibility that the image is being used as a trademark, and the possibility that the re-publication could make commercial use of images of deceased "personalities."  These should both be ruled out before publication.

In addition, when using a photo--especially for publication--it is a good idea to confirm that there are no ethical or relational concerns with using certain images.[4]  For these reasons, writing to the historical societies to inquire about images kept in their collections (as the faculty member in this example is doing) is a good idea...just ask for information, not permission.   Checking in with a person who focuses on ethical issues in that particular area of scholarship is wise, too.

 

 


[1] This is something "authorlaw.com" attorney Sallie Randolph and I often bicker about. I advise writers to resist such clauses (or demand better royalties for taking on the risk). Sallie, who has negotiated hundreds of author contracts, tells me this is not realistic advice, because for most major publishes, it's non-negotiable. But as I see it, everything in a contract is up for negotiation!

[2]  A good resource for double-checking the date when works are in the "public domain" (which can vary) is at https://guides.library.cornell.edu/copyright/publicdomain. Thank you, Cornell.

[3] I discussed this part with Sallie Randolph, too, and for once, we agreed! When contacting an organization about a public domain image, never ask for permission, but say something like "I am contacting to discuss using a public domain image from your [archive] to see how you would like the organization credited for having made the image available to researchers."

[4] For more on that, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/172.

 

Tags: Academic Libraries, Archives, Copyright, Liability, Photographs, Public Domain

Topic: Organizational Name Change - 07/28/2022
[NOTE: Since they authorized a public reply, we're keeping the name of the member organization...
Posted: Thursday, July 28, 2022 Permalink

MEMBER QUESTION

[NOTE: Since they authorized a public reply, we're keeping the name of the member organization submitting the question in this RAQ.  Usually, we genericize, but in this case, we trust you see why we kept the member's name in the question.]

QUESTION

Our organization has voted to change its name in an effort to re-brand to a more contemporary audience. Our original charter, granted in 1909, will not change, nor our legal name (Ticonderoga Historical Society).

What steps do we need to take to register our new name? Is this what is called a "DBA" and are there other steps we must take?

 

WNYLRC ATTORNEY'S RESPONSE

I am continually fascinated by the evolution and impact of names.

For instance, when I read the name of the member submitting the question, I immediately thought:

  • Fort
  • Pencil
  • Mountains
  • Not "Canestoga"

Given that the Ticonderoga Historical Society has a fairly recognizable name[1], it is interesting to see what their "next act", name-wise, will be.

To answer their question about re-branding without legally changing a name, we'll take it in order of recommended operations:

Step 1: Name Inventory

Before deciding to change a name--or officially adopt a nickname to operate under--an organization should take stock of all the areas where its name is "official." [2]

While this "inventory" will be different for each organization, there are some standard places this will appear:

Charter (or certificate of incorporation)

Bylaws

Policies

501(c)(3) registration

New York Charities Bureau Registration

Department of Education Annual Reports

Annual Reports to your community/membership

Real property documents (deeds, mortgages, leases)

Intellectual property documents (trademarks, copyrights, trade secrets, social media accounts)

Restricted assets (trusts, endowment, etc.)

Bank accounts (Important! --ask the bank/s what they need if you effect a name change, and what they need if checks are written to an assumed name)

Official posted signage

Branded physical items (stationary, business cards, membership cards, etc.)

Cultural guides published by 3rd parties (hard copy and online)

Charitable giving documents (such as being listed in a will)

Cooperation agreements

Contracts

Grant documents (which are often contracts, but in their own special category)

This should be a rolling list that is updated as needed as people come up with more and more places that feature the corporate name.

Why is this?  When your re-brand is complete, all of these will need to be updated.  Some of them, however, will require not only updating, but are also of legal consequence.

Step 2: Critical Review

Once the "name inventory" is done (although as I say, it will be updated...probably over the next few years, as instances of the "old" name come out of the woodwork), it is time for a critical review.

The "critical review" is based on just a few questions:

1.  What is the current name?

2.  What is the future name?

3.  What is/are the reason/s for the new name?

4.  Based on the "inventory", does the new name, and the organization's reason for adopting it, require a legal change, or can it operate "D/B/A"?

This is the stage the member is at.  What does the review--ideally conducted with an attorney, but also a good task for a thoughtful group used to non-profit strategic planning--look like?

Current name: Ticonderoga Historical Society

Future name: We don't know the new name, but let's say it's "Ticonderoga H2.0"[3]

Reason for new name: In this case, the Society has decided they would like a new name to help them reach out to a more contemporary audience.

Legal change or "DBA”? This is the part you want the lawyer or experienced group for.  It will be important to make sure the new name is available, to make sure it isn't prohibited by law, that the change isn't prohibited or complicated by considerations in the inventory, and that it won't cause trouble in accessing library assets. This final assessment should be in writing, since it will be used to inform the remaining steps.

Step 3: No matter what, check in with the Education Department

Once a library, museum or historical society decides to re-brand--whether with an actual name change, or as the member describes, using an assumed name (or "DBA”) --it is best to check in with the "Mother Ship" of each and every education corporation in New York: State Ed.

One of the great pleasures of my work with members of the 3R councils is that from time to time I get to check with the folks at the Archives, Library Development, and the State Museum--and their legal department--on issues like the one described by the member.

While, in my experience, the different reps at Ed will not tell an entity what to do (because that is not their job), they are very willing to provide options and cautions to help inform board decisions about assumed names, name changes, and charter revisions.

This includes pointing you to the right forms and giving a timeline for the process.

So call, and be ready to get information, not instructions, to plan the next steps for the re-brand.

Step 4: Make plan, THEN make a decision

Based on the above steps, an organization can develop a plan for a re-brand--whether it's going to be a full name change, or an assumed name/"DBA".

Once the plan is in hand (although it will surely continue to evolve throughout the process), a board can vote on what to do.

But wait, isn't that backwards?  Shouldn't a board make a decision, and then approve the plan?

No.

While there is not one right way to do this, I have found that developing the plan is the best way to reach a decision on a re-brand. It makes sure things that can cause frustrating expenses and roadblocks (like a selected name being denied, a legal issue blocking approval, or a new name being a trademark violation), are instead assessed as factors in decision-making.

Step 5: Get it Done

Once the plan is finalized and the decision is made, there are three paths:

          Path 1.  Stick with the old name.

Sometimes, a museum or historical society will do a thorough review (steps 1-4) and find out they really don't want to change, after all.

That's fine.  Sometimes doing nothing is actually the result of informed decision-making.

          Path 2.   Move ahead with a legal name change.

Very often, step 1 ("name inventory") will reveal factors that warrant not just a new brand, but an actual, official name change...which will require official amendment of your certificate of incorporation or charter.

What factors could that be?  It could be anything, but examples are:

  • The old name is out-of-step with the mission;
  • The entity is buying new property and wants everything in the new name going forward;
  • After review, the board found it would actually be simpler to spend 1 year changing everything, rather than worry about being "DBA".

In this "name change" option, the organization passes the proper resolution and files with State Ed to amend its founding documents, lines up the process to immediately update critical documents the minute the change is official, and makes sure someone is responsible for getting it all done.

The checklist for this includes (but is not limited to):

  • Bylaws revision
  • NY Charities registration update (if currently registered)
  • 501(c)(3) update
  • EIN update
  • Bank account update
  • Real property documents and records update
  • Tax-exempt registration update
  • Sales tax registration update
  • Change of owner in all social media accounts

...et cetera. 

NOTE: Many of the items on an institution's "update immediately!" list will be taken from the "name inventory", which is why it is so handy to start that inventory early.

CAUTION:  The above steps for re-naming are NOT the steps if your organization has "re-chartered" and dissolved the former entity!   Re-chartering means you have ended the old organization and created a NEW entity; when this is done, assets must be moved to the new entity, not just tagged with a new name (think of a name change as putting a new label on a box, but re-chartering requires moving things from one box to another).

          Path 3.  Stick with the old name officially, but register an assumed name to operate under.

This is handy when an organization has many assets, has restricted funds in the old name, and doesn't want to run the risk that could be caused by an official name change (like donor confusion), but knows it needs a new identity to remain relevant.

In this case, there are some filings that need to be performed, but the process is not as extensive as an official name change.

While the considerations on the "name inventory" will still be critical, the legal steps for an education corporation filing to use an assumed name are:

          a.  Contact State Ed to let them know you are sending in the form for an assumed name; the forms for that are here.[4]

          b.  Once State Ed grants permission, assess if you must also file with the NY Department of State (I'd err on the side of caution and assume this is a must); the forms for that are here.[5]

          c.  Review any critical considerations on the Name Inventory (like what your bank needs to accept payment in the assumed name) to make sure they can be timely addressed.

...and that's it.  With an assumed name, the "official" (old) name on all tax numbers, registrations, real property deeds, etc., will be unchanged.  Some filings, going forward, will have places to note assumed names, and you'll want to properly list them, but the change is much simpler.

I can't wait to see the re-brand!



[1] As I wrote this comment about the recognizability of the name, I realized that I am likely NOT part of the "contemporary audience" the re-brand is supposed to attract!  Ah, age...at least it comes with wisdom.

[2] An organization that has already decided to change its name has likely already done this

[3] I have tested this name with my kids, 17 and 8, and it's a hit.

[5] As of June 22, 2022, the form is posted at: https://dos.ny.gov/system/files/documents/2019/01/1338-f_0.pdf

 

Tags: Historical societies and museums, Trademarks and Branding

Topic: Interlibrary Loan Electronic Transmission Privacy - 07/26/2022
For an Interlibrary Loan Electronic Transmission (whether printed out and included with the item(s...
Posted: Tuesday, July 26, 2022 Permalink

MEMBER QUESTION

For an Interlibrary Loan Electronic Transmission (whether printed out and included with the item(s) or sent via electronic means) in a K-12 setting, can a student's name (the one ultimately borrowing the item) be used in the "receipt" or notification slip? Should a student's School ID number be used? Can both be used at the same time? Is it taboo to have a student's name in ANY electronic transmission?

 

WNYLRC ATTORNEY'S RESPONSE

This question comes at us from a school district public library and supporting Board of Cooperative Educational Services ("BOCES").

One thing I knew very little[1] about when I started doing "Ask the Lawyer" was school district public library systems.  These are systems coordinated through a regional BOCES, creating a network of library resources, governed by their own section of the New York Education Law (and regulations, and Regents rules).

Over the years, the existence and importance of school district public library systems has grown more and more obvious to me--to the point where now, if you are so unfortunate to be trapped in an elevator with me, I might tell you all about them from ground level to the 32nd floor.[2]

One thing I would mention, around floor 15 or so, is that school district public libraries (and systems) have to balance privacy and data security obligations from a wide array of different state and federal laws.  I have written on this before (see "Ask the Lawyer #67, #80, and #143), and won't re-hash that here, except to say: everything in those past answers impacts this question.

With those prior columns as background, the answers to the member's three questions are:

For an Interlibrary Loan Electronic Transmission (whether printed out and included with the item(s) or sent via electronic means) in a K-12 setting, can a student's name (the one ultimately borrowing the item) be used in the "receipt" or notification slip?

Yes, if the library's policy requires it for the "proper operation" of the library (CPLR 4509), AND if the school can assure that only those who need to see it (for the benefit of the student) will see it (FERPA) or the student has signed a FERPA waiver, AND if all the required measures for data privacy are in place (ED2-d).

Should a student's School ID number be used? Can both be used at the same time?

Yes, if the library's policy requires it for the "proper operation" of the library (CPLR 4509), AND if the school can assure that only those who need to see it (for the benefit of the student) will see it (FERPA) or the student has signed a FERPA waiver, AND if all the required measures for data privacy are in place (ED2-d).

Is it taboo to have a student's name in ANY electronic transmission?

No, but school district and BOCES systems creating and transmitting such records should always be confident that the use of the student's name is in a document generated and transmitted per applicable policy.

This is tougher than it sounds, since schools now have so many electronic systems facilitating record-making and communication--a situation compounded by online learning during the pandemic.  Further, the decision to use those systems might be driven by function and cost, with only secondary attention being paid to privacy, as addressed in "Ask the Lawyer" #67, #80, and #143.

Since this question is rooted in interlibrary loan, I'll end with an example.

Below is a partial screenshot from the demo screen of OPALS, a popular ILS used by school district libraries (and other types of libraries, too).

As you'll see, OPALS enables the "viewing of all the borrowers in an attending class...."

Screenshot from OPALS Demo Screen. Part of a drop down menu with options for SCORE, CD, Audio, and DVD. The number 10 and the date 2015-08-18 is listed for each option. Below the menu is text that reads Group Loan Transactions Option for lines of elementary borrowers. Circulation system has an option to pre-load student names and status for a selected homeroom/teacher, reducing transaction processing time by 50-75% - especially helpful, when district networks experience latency. Viewing all of the borrowers in an attending class makes lending more efficient, creating more time to spend with students to develop literacy and research skills.

There is nothing inherently wrong with this type of grouping of borrowers, so long as the district has addressed the various privacy obligations, and made sure the functionality and use of the system (in this example, OPALS) align with the school's approach and policies on privacy.

In other words, nothing should be left to chance.

So, with that, my ultimate answer--to all three questions-- is: any time a public school student's name is listed on a library record that leaves the bounds of the library (the "real" or virtual bounds), every unique way that happens (injury report, student discipline, interlibrary loan) should be covered by policy.

Now, let's consider how this issue looks "on the ground."  I poked around a bit, and while I found many interlibrary loan policies for school district library systems/BOCES in NY, I didn't find one that went so far into the weeds as setting terms for how/when to include borrower names on the routing slips (printed or electronic).

Chances are, that's usually more of a "standard operating procedure" thing, rather than something set by formal "policy."[3]

But with increasing interconnectivity between library other school systems, it might be worth formalizing in future interlibrary loan policies.  For instance, one sentence: "When effecting interlibrary loan, cooperating libraries shall mutually adhere to the other libraries' and systems' policies regarding borrower privacy"[4]  is a sample of how to add a quick reminder about this critical consideration.

Because as the member's questions indicate, we can never be too "in the weeds" on privacy.

Thank you for an important array of questions.



[1] Okay, actually, nothing.

[2] In this mythical trip up 32 floors, we are visiting Buffalo City Hall, which if you have never seen, is a must-visit location.

[3] New York is a big state!  I have no doubt there is a policy that does address this.  If your district has one, please send a link to info@losapllc.com and reference this RAQ.

[4] This is just sample language...no matter what you select, make sure your school district's attorney or BOCES system director reviews and approves any policy before it goes into effect!

 

Tags: CPLR 4509, Ed Law 2-d, FERPA, Loaning programs, Privacy, School Libraries

Topic: Historic Map with Private Properties - 07/26/2022
As part of a town bicentennial celebration, the committee wants to create a map of historic proper...
Posted: Tuesday, July 26, 2022 Permalink

MEMBER QUESTION

As part of a town bicentennial celebration, the committee wants to create a map of historic properties. There would be a description of the property noting its historic significance, the address, and ideally a photo. Many of the properties are privately owned. Do owners need to give permission for their property to be included? We would publish the address and describe the history of the property, but current owners' names would not be disclosed. We want to share history, but respect privacy. What legalities should we be aware of?

 

WNYLRC ATTORNEY'S RESPONSE

In addition to being something of a historic preservationist, I am also a design fan, and a booster for my adopted hometown of Buffalo NY.  This means I am on several social media groups that discuss:

  • Historic properties,
  • Design of both private and public buildings, and
  • Issues that impact the built environment (landscaping, planning, urban design).

On these groups, there is regularly a debate about the legalities, ethics, and diplomacy of taking pictures, providing information, and commenting in a public forum about privately owned property.

Issues that are frequently raised include:

  • Privacy
  • Safety
  • Harassment
  • Risk of a claim of defamation
  • Cultivating ill-will

The issue can also take on tension if a person lives in a home they prefer to not have considered "historic," which can place added pressure and actual legal restrictions on the owner of the home.

On the flip side, many who proudly own "historic" or otherwise noteworthy properties glory in their building's appearance and history.  These are people who not only want their structure listed in print and online resources, but carry a jump drive they can distribute easily to make sure the building is described properly.[1]

When it comes to the risks of listing historic properties in a printed or online resource, there are very few direct legal issues.  With the exception of certain high-security locations, it is not illegal in any way to publish information related to real property, its ownership, and its historic nature (or other significant factors).  In fact, although not everybody realizes it, such information is generally available to the public in the form of tax maps, real property deeds, and other information housed by a county clerk.

That said, and in answer to the member's question, legal concerns can arise if a resident or owner can attribute negative consequences directly to the listing. For instance, if a listing suggests that a property is open to the public, when in fact it is not open, a property owner could have legal recourse. Similarly, if a write-up is directly connected to resulting harassment or vandalism, there could be an allegation of legal responsibility[2]--although such allegations would not lead to liability unless a precise set of factors were present.[3]

The stakes can also be higher when the listing is the result of a formal publication by an actual entity, such as a local library, historical society, religious corporation, or not-for-profit corporation.  This is because such organizations typically have a larger platform to communicate from, and are also perceived as having "deep pockets,"[4] as well as insurance.  They are also more vulnerable to public criticism, since they depend on public good will.

How can an organization mitigate such risk?  Here are three steps:

Step 1. If your organization is going to publish a guide, check with the organization's insurance carrier to see if its insurance includes coverage for "advertising injury" and other claims related to publication. While not every "general liability policy" has this feature, it is a fairly common type of coverage, and any group that is regularly publishing brochures or pamphlets--or even listing information on its website--should consider getting coverage for allegations of defamation and copyright infringement.

2.  Early in the initiative, decide what the precise criteria is for inclusion in your directory[5], and if your directory of local historic properties will have an "opt out" for people who don't wish their property to be listed or depicted.

3.  Once the criteria and any option for "opt out" is determined, consider using a form to notify people of the directory, and to allow people to supply information about their property or to opt out.  For instance:

Dear NAME:

[Info about your organization, upcoming event, pleasantries, etc.]

The NAME is preparing a directory of local historic properties, including your historic property at ADDRESS.

The criteria for the listing in the directory are INSERT.  The listing will include the address, a photo taken from the street, and a brief history of the property.  We will ensure there is no automobile with a legible license plate or people in the image.

To personalize this initiative and add depth to our information, we would like to provide you with an opportunity to send us information about the property, including any work you have done to steward it over the years, and any photos or legacy information you may have.  You can send anything you like to INSERT ADDRESS.  By sending information, you are giving the NAME a license to adapt it for use in the directory (both print and online), only.

In addition, because we appreciate that not everyone will want to supply information or have a picture of their property included in the directory, we are providing an "opt out" of the photo depiction.  If you do not want a photo of your property included in the directory, please check the box below:

 Please do NOT include a photo of my property at ________________ in the directory.  I understand this "opt out" is a courtesy and information regarding my property is part of the public record.

The directory text will be finalized by DATE and we anticipate publication by DATE.  Therefore, to be able to include your materials or remove a photo, we appreciate your reply by DATE.

[nice things, etc.]

[signature]

If at all possible, the organization's attorney should review the final letter before it goes out, which will allow the organization to address any concerns specific to the project or the particular locality.

Thank you for submitting an interesting and sensitive question.  Respect for those who steward historic structures is important...as is celebrating the legacy they preserve.

Happy bicentennial!



[1] Woe betide your guide if a "coppice" is mistakenly called a "cornice."

[2] I have never heard of a directory of historic properties being used to "dox" (harass via release of private information) somebody, but I can imagine it happening.

[3] For example, if the write up said "This is the historic Bailey mansion.  Legend has it if you throw a rock through a window, your wish comes true.  Bring a rock and have at it!"

[4] As in, money to pay for damages.

[5] Is it on the state registry, federal registry, or considered "historic" due to a local designation?  Or are the criteria simply that the structure was built before a certain year, hosted a significant event, or was once owned by a noteworthy person?

 

Tags: Historical societies and museums, Privacy, Safety, Templates

Topic: /Liability Waivers for Library Fitness Programs - 07/26/2022
My hometown library has implemented a fitness waiver for their movement and exercise activity prog...
Posted: Tuesday, July 26, 2022 Permalink

MEMBER QUESTION

My hometown library has implemented a fitness waiver for their movement and exercise activity programs. I am wondering if this is a good idea for my library. We provide some exercise classes including chair yoga, Zumba, nature walks, and are looking into another movement class activity. For reference, please copy and paste the form used by my hometown library [redacted for anonymity] into your browser or refer to the attached screenshot. Are we within our legal/ethical practices to implement such a waiver? Will we need to consult an attorney to draw up the waiver for a fee, or can we borrow the language used by [redacted for anonymity]? Thank you.

 

WNYLRC ATTORNEY'S RESPONSE

I have a lot of fun-loving clients.  Here are some examples of activities I've created liability waivers for:

  • Mechanical bull riding
  • Smashing a car with a sledgehammer for charity
  • A "ToughMudder" event
  • Sword fighting

I have also worked on liability waivers for more commonplace activities like attending a hockey game, horseback riding, and cheerleading.[1]

The purpose of a liability waiver is to limit a person's ability to bring legal action for injuries related to a particular activity.  Therefore, the trick to creating a successful waiver is making sure it is enforceable when a worst-case scenario--an injury related to that particular activity--occurs.

Because of the high stakes--and because the law in New York can have an impact on how much liability can be waived (for instance, a waiver of liability at certain types of pools[2] is invalid, no matter how well-written) -- a waiver should almost always be custom-crafted to the actual activity, at a specific place, and thus not borrowed from another entity.

The waiver for the mechanical bull rider was different from the waiver for the hockey spectator.

The waver for the person venting their rage on a car for charity was different from the waiver for an equestrian.

The waiver for the sword fighter actually had more in common with the waiver for the cheerleader than you might think...but was still different.

Add to this diversity the fact that in New York, the waiver for a municipal library might have to look different from one used by another municipal library, or an association library, and there are a lot of variables to consider.

So, my answer to the question "Will we need to consult an attorney to draw up the waiver for a fee?" is: if your library wants assurance that the waiver actually protects the library from liability, then YES.

But wait, there's more.

I appreciate that for a not-for-profit such as a library, which likely doesn't have a budget to go around hiring lawyers to hand-craft waivers for every separate fitness activity (or if it does, would rather spend that money on materials and programming), bringing in a lawyer every time you want to sponsor a new physical fitness event can be cost-prohibitive.

So here are a few options between commissioning a new waiver for every fitness event, and just scrapping such events in the first place.

Solution 1: Pass the risk of liability on to the instructor

Any physical fitness class being offered by a library should be led by an instructor with the documented qualifications and insurance coverage to limit and cover the risk of injury related to the activity.

For a yoga class, this means the instructor should be able to show they 1) are certified by an acknowledged yoga authority; 2) are willing to accept responsibility for injury caused by their yoga class, and 3) have insurance that will cover such injury (whether the person sues the instructor, or the library, or both).

A contract showing all this will 1) recite the instructor's qualifications; 2) list their insurance (and attach a certificate showing the coverage; and 3) include a "hold harmless" and "indemnification." That means that if there is a claim of liability resulting from the classes, the instructor's insurance coverage will take the heat.

Such an instructor will, usually, have their own waiver that they require participants to sign, tailored to the precise activity.  Further, to most experienced instructors, none of this will be an outlandish requirement.

Does this mean that start-ups and amateur instructors might not be able to offer classes at your library?  Yes...and while it may seem harsh, that is a good thing.  If a person is great at yoga and loves sharing what they've learned, but doesn't have the documented credentials to assure the library that they know how to teach it, or insurance coverage, they should not be selected to offer a fitness class by your library.

The public attending a fitness class will trust that the library has picked the right person; having the ability to demonstrate a bona fide qualification and insurance is a key sign you've made the right selection.

Solution 2: Work with your insurance carrier

Your library likely has some form of general premises liability coverage.[3]  This means that an insurance carrier, on an annual basis, is sending your library a copy of an insurance policy--and the library is paying for it.

Aside from your board and employees, you know who doesn't want your library to get sued for an injury that happens during a fitness activity?  Your insurance carrier.

Now, what I am about to write may, or may not, be helpful.  In my experience, some insurance carriers will bend over backwards to make sure their "insured" doesn't get sued; they will offer training on risk management, they will offer employee screenings, and they will offer to review forms and policies.  Other carriers, on the other hand, will just accept a check for your library's annual premium, and wish you "good luck" with liability.

When your library is contemplating any physical event with a moderate risk (yes, like Zumba), it is a good idea to check in with the insurance carrier for the library.  Do they have waivers they want you to use (even if your instructor has held you harmless)?  Do they have rules they require you to post (even if the rules are pretty obvious)?  Is there an exception in your coverage (does it not cover fitness classes at all)?  All of this is critical to know before your library takes on any risk for a program. 

And who knows...I've actually had clients get the "all clear" from insurance carriers, who confirm "Yes, that is within the scope of your coverage, let the Zumba commence!"  It all depends on what's in the policy.

Solution 3: "One-Waiver-Fits-Most"

With a "one-waiver-fits-most" solution, an organization identifies a suite of low-risk activities, and asks that their lawyer write "one waiver to rule them all,"[4] and only offer that type of activity...saving costly custom waivers for riskier (and likely rarer) activities. 

What is "low risk" activity?  That is up to your lawyer, insurance carrier, and library.  But it in general a "low-risk" activity is one so low-key and mundane, with no heightened or specific risk, that an enforceable waiver covering it wouldn't require any special bells and whistles.[5]

Common examples of such "low risk" activities might include:

  • Nature walks in a town or city park
  • Organized bike ride in public park
  • Local history walking tour
  • Breathing or mindfulness class
  • Croquette, badminton, tennis, Wii[6]

Although they might seem low-risk, I would generally exclude from this list:

  • Yoga (including chair yoga)
  • Dance class
  • Any contact sports
  • Organized bike ride on public streets
  • Anything involving children running

THESE ARE JUST EXAMPLES...each library's list of "low risk" activities to be conducted with a "one-size-fits-most" waiver will change based on the library's type, level of insurance, and tolerance for risk.[7]

While not perfect, the "one-size-fits-most" solution is a cost-effective way to confidently offer programs from a menu of activities, while also protecting the library and not blowing the budget on legal services.

To ask a lawyer to write a "one-size-fits-all" waiver for your library, gather:

  • your insurance policies
  • code of conduct
  • list of typical activities
  • any grants funding the activities
  • Lease (if your library doesn't own the building)

Be ready to meet for maybe half an hour with the lawyer to discuss the fitness events that your library wants to host.  For municipal libraries, be ready to involve the town/village/city attorney at either the beginning, or the end, since depending on building ownership, and some other factors, the municipality may need to have some input on this too.

Mix that all together, and you should get:

  • a list of "low risk" activities,
  • a "one-size-fits-most" waiver;
  • some guidance on when you need an instructor contract;
  • instructions on how low to save signed waivers[8],
  • and a sense of reduced-liability confidence.

Happy Zumba!



[1] Cheerleading may be common, but it is fraught with risk!  P.S. NCAA: it should be considered a sport.

[2] New York Consolidated Laws, General Obligations Law - GOB § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

[3] In my work with libraries, I have found this is not always the case.  One important annual task for trustees is to ensure that the library has adequate insurance.

[4] In writing.  Always confirm legal advice in writing.

[5] An example of a "bell and whistle" would be the specific warning: "horseback riding is inherently dangerous")

[6] Unless played the way my family plays, in which case, there is not enough insurance in the WORLD.

[7] Although I am willing to bet croquette is on the "low-risk" list state-wide.

[8] Yes, they can be signed and/or archived electronically, but confirm the method with the drafting attorney.

 

Tags: Liability, Library Programming and Events, Municipal Libraries, Public Libraries, Safety

Topic: Retention Period for Employee Records - 07/26/2022
How long should the library retain employee records, payroll records, sales and purchase records, ...
Posted: Tuesday, July 26, 2022 Permalink

MEMBER QUESTION

How long should the library retain employee records, payroll records, sales and purchase records, mortgage and loan documents, and other records

WNYLRC ATTORNEY'S RESPONSE

Several considerations impact the answer to this question:

For a public library, the bare minimum record retention periods are found in a document called "the LGS-1."[1]  The LGS-1 has rules for retention covering everything from your library's charter, to how long you hold onto circulation records.

For an association library, which does not have to follow the LGS-1, those retention rules in the LGS-1 are a good baseline, but you have a bit more latitude.

However, no matter what baseline a library or other cultural organization chooses to adopt, it is good to keep in mind that required retention periods are routinely extended by things like:

  • Insurance policy requirements
  • Union contracts (for personnel records)
  • Grants, and other sponsored funding
  • Lawyers instructing a client to retain records as part of a "litigation hold"

In addition, while it can't be considered a formal "retention period", documents are also "retained" by institutions simply due to a tendency to hoard records.  At times, this can be a healthy tendency (like when letters from a first grade class from 1945, written to thank the local library for a story hour, are found in moisture-resistant storage, and they are turned into an exhibit).  Other times, it is not so healthy (like when borrower records from 5 years prior[2] are accessed during a burglary or hack).

For a large library (or museum, or other cultural institution) with robust funding and a large staff, "records management" per the LGS-1 or a customized "record retention policy" is often part of a person’s (or department's) job description--and is supported in the annual budget.  For a smaller library (or museum, or other cultural institution) with less-than-robust funding, and a smaller staff, "records management" is often an afterthought.  This can cause complications when the records pile up, and there is no person--or budget--to sort through them and make sure they are properly retained/purged.

But this question is about retention periods, not the drama they can cause!  So here is the answer:

For the types of records mentioned in the question ("employee records, payroll records, sales and purchase records, mortgage and loan documents"), the retention periods vary; some are "permanent", and others are as short at 6 years.  The LGS-1 (which will pop up when you search "LGS-1") will give you the breakdown.

For an association library that doesn't want to follow the precise requirements of the LGS-1, but still wants a retention policy, below is a model policy.

Thank you for submitting an important question!

 

[ABC] ASSOCIATION LIBRARY

RECORD RETENTION AND DISPOSAL POLICY

Items in yellow are to be changed or removed

Policy

The ABC Library retains and disposes of records as required by law, contracts, and based on the board's determination of what is in the operational best interests of the Library.

I.        Records are retained as follows:

-Association Library Charter, bylaws, Plan(s) of Service, Annual Reports: PERMANENT

-All records made available per the Open Meetings Law: PERMANENT

-Deeds: PERMANENT

-Contracts: (includes leases, mortgages, loan documents, vendor contracts, employee benefit contracts, warrantees, use of independent contractors): Seven years after termination of all obligations and rights created by contract; in some cases, PERMANENT. See "Archives."

-Employee-related: Seven years after termination of employee.  See "Archives."

NOTE: This will be impacted by an association library's union contracts, employee manual provisions, and employee-related policies; check these documents to ensure consistency.

-Fiscal & Financial: Seven years, unless the relevant fiscal policy, document or transaction it is related to requires longer. See "Archives."

-Archives: PERMANENT

-Records pertaining to library operations (based on the LGS-1 to ensure consistency with non-association libraries in the XYZ Library System):

-Accession records: 1 year after accessioning procedure becomes obsolete

NOTE: Some libraries accession manuscripts, rare books and special collections, but not their general library holdings. In these cases, the accession records need to be retained only for the kinds of materials still accessioned.

 -Informational copies of records prepared by and received from public library system, including but not limited to directories, minutes, budgets and reports: 0 after superseded or obsolete

-Directory of public library system and member libraries, prepared by public library system (member library's copy): 0 after superseded or obsolete

-Library card application records: 3 years after card expires or is inactive

-Borrowing or loaning records: 0 after no longer needed

-Interlibrary loan records, including requests to borrow or copy materials from other libraries, receipts for materials, copy logs, accounting records, and circulation records

a) When no copies of original materials are requested: 0 after no longer needed

b) When copies of original materials are requested: 5 years after order is completed

-Catalog of holdings

a) Manuscript or published catalog: PERMANENT

b) Continuously updated catalog: 0 after superseded or obsolete

-Individual title purchase requisition which has been filled or found to be unfillable: 1 year

-Records documenting selection of books and other library materials:

0 after no longer needed

-Library material censorship and complaint records, including evaluations by staff, patrons' complaints and record of final decision: 6 years after last entry NOTE: Appraise these records for historical significance prior to disposition. Some library censorship records deal with serious constitutional issues and may have value for future research.

-Patron's registration for use of rare, valuable or restricted non-circulating materials: 6 years

-Program and exhibit file documenting planning and implementation of programs, services and exhibits sponsored or co-sponsored by the library, including but not limited to photographs, sketches, worksheets, publicity, brochures, exhibit catalogs, inventory lists, loan agreements, correspondence, attendance sheets or registration forms, and parental consent forms:

a) Parental consent records: 6 years, or 3 years after child attains age 18, whichever is longer

NOTE: Photo release records are covered under item no. 68 in General Administration section. Local Government Schedule (LGS-1) Library/Library System

b) Attendance sheets and registration forms, when no fee is charged: 0 after no longer needed

c) All other records: 6 years after exhibit closed or program ended

NOTE: Appraise these records for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice

II.       Records are disposed of as follows:

At the end of the retention period, physical copies are purged via shredding as their retention period expires.[3]

At the end of the retention period, electronic records are routinely disposed of by [insert input from your IT professional].

Archives

Prior to purging, all records of the Library are appraised for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Records retained permanently due to historic or research value are designated as "Archives."

 



[1] For more "Ask the Lawyer" on the LGS-1, see https://www.wnylrc.org/ask-the-lawyer/raqs/253. The 2022 version of the LGS-1 was, as of April 11, 2022, found here: http://www.archives.nysed.gov/common/archives/files/lgs-1-2022.pdf.

[2] I know library systems are very good about ensuring borrower records are purged from ILS once they are no longer needed, as authorized by the LGS-1.  This is just an extreme example to make my point.

[3] For more information on appropriate ways to dispose of physical copies, visit http://www.archives.nysed.gov/common/archives/files/mr_pub41.pdf.

 

Tags: Accessibility, Archives, Employee Rights, LGS-1, Policy, Record Retention, Templates

Topic: Opt out of CCB for libraries - 07/21/2022
The CASE Act has a provision for libraries to preemptively opt out of CCB proceedings. If we opt o...
Posted: Thursday, July 21, 2022 Permalink

MEMBER QUESTION

The CASE Act has a provision for libraries to preemptively opt out of CCB proceedings. If we opt out at the institutional level, does that cover individual library employees?

Opting out seems like a good course of action for our institution but I wonder if there are reasons why we should not opt out.

 

WNYLRC ATTORNEY'S RESPONSE

For this question, "Ask the Lawyer" brought in "Authorlaw.com" and copyright attorney at the Law Office of Stephanie Adams, Sallie Randolph, as a guest author.  Many thanks to Sallie for crafting this answer as the CASE Act unfolds.

The final rule applies a library's or archives' opt-out election to both the qualifying entity and its employees for activities within the employee's scope of employment. Therefore, the answer to the first part of this question is yes. All employees of the institution that has opted out are covered as long as the employees are operating within the scope of their employment.

Opting out seems like a good course of action for our institution but I wonder if there are reasons why we should not opt out.

There are several factors that may influence a library’s decision to opt out or not. The Copyright Claims Board (CCB) is new.[1] It heard its first cases in April of 2022, so there is not much historical data that can inform a decision either way. It might be wise to defer such a decision until the CCB has a longer track record.

Keep in mind that a library can always opt out of an individual case by filling out a simple online form.  Therefore, there is no real risk in deferring the opt out decision until later, perhaps after a first claim is made. Depending on the nature of the claim, it is possible that defending in the CCB would be preferable to defending the same claim in federal court. Opting out preemptively would deprive the library of this flexibility.

So far there have not been any cases filed against a library, at least not any listed on the CCB cases website: https://dockets.ccb.gov/search/cases. And so far, no cases have yet been closed, so final results are unknown.

To date, relatively few libraries have opted out. Those libraries are listed at https://www.ccb.gov/libraries-archives-opt-out/.

Given the early stage of CCB operations and the relative lack of useful data, I would be tempted to defer a final decision on preemptive opt out until more information is available. Until then you can easily opt out on a case-by-case basis.



[1] For more on the Copyright Claims Board (CCB), see https://www.ccb.gov/about/

 

Tags: Academic Libraries, CASE Act, Copyright

Topic: Association Libraries and Sales Tax on Faxes - 07/14/2022
I found some information that may indicate that association libraries which charge patrons fo...
Posted: Thursday, July 14, 2022 Permalink

MEMBER QUESTION

I found some information that may indicate that association libraries which charge patrons for faxes should collect sales tax.

This publication is the source of my inquiry: https://www.tax.ny.gov/pdf/publications/sales/pub843.pdf

On page 25, under "Sales and Utility Services" there is mention of telephony and a reference to section 1105(b) of the Tax Law. The section of the law specifically mentions facsimile services, but only intrastate transmissions would be taxable.

However, page 6 states: "Agencies and instrumentalities include any authority, commission, or independent board created by an act of the New York State Legislature for a public purpose".

Examples of "agencies and instrumentalities" include:
          • NYS Department of Taxation and Finance
          • NYS Department of Education
          • Association of Fire Districts of New York State
          • Nassau County Village Officials Association

Since association libraries are chartered by NYS Dept. of Education, I wondered if association libraries would be exempt from collecting sales tax on faxes.

Thank you in advance for clarifying whether association libraries are exempt from collecting sales tax on faxes.
 

 

WNYLRC ATTORNEY'S RESPONSE

There's a lot going on in this question, so I am going to be less fun and flowery[1] than usual as I answer it.

I am sorry to report that per NY Tax Law Section 1105(b), an association library must collect sales tax on sales of facsimile services for faxes sent and received within the state.[2]

In part, this is because association libraries, although chartered by State Ed, are regarded by the NYS Department of Taxation & Finance as not-for-profit corporations, not state agencies/instrumentalities.[3]

Now, as a not-for-profit, an association library is exempt from collecting and paying taxes on facsimile services per NY Tax Law Section 186-e--just like any other chartered library or museum would be.  But as the resource cited in the member's question[4] shows, exemption under 186-e doesn't equate to exemption under 1105 (b).[5]

Of course, legal guidance in "Ask the Lawyer" can supplement--but never substitute--guidance from your association library's tax professional or lawyer.  If the accountant or lawyer for your association library finds a way to avoid the obligation to collect tax on sales of intra-state faxes: 1) get that in writing from them before relying on it; and 2) please send us an update!

Thanks for a question that inspired frequent cross-checking of the tax code!  I wish I could offer a more helpful answer.

 



[1] "Fun and flowery!" is, I am sure, the headline of the upcoming New York Times Book Review covering "Ask the Lawyer: The Novel" (which, to the author's knowledge, is not in the works, but if you know a publisher, tell them I'm open to persuasion).

[2] If the person is faxing to New Jersey, or Russia, or anywhere but within New York, tax under 1105 does not apply.  If you want to read more on that, see NY Tax Opinion TSB-A-96 (70) S from November 25 1995.

[3] I could write a lot about this, but let's just say the commentary in NY Tax Opinion "TSB-A-13(1)R", regarding how the NYS Department of Taxation and Finance regards an association library, is a good summary of this position.

[4] NY Tax Publication 843; the link to the document is in the question.

[5] I'd say this situation isn't fair--but since this is an answer about taxes, such an observation would be redundant.

 

Tags: 501c3, Association Libraries, Taxes, Library Services

Topic: Federal Tax Exemptions for Special District Libraries - 07/12/2022
Are special district libraries eligible for 501(c)(3) or other federal tax exemption? I work at...
Posted: Tuesday, July 12, 2022 Permalink

MEMBER QUESTION

Are special district libraries eligible for 501(c)(3) or other federal tax exemption?

I work at a special district public library, and we are not currently a 501(c)(3). Everyone I've asked from co-workers to administration to board members says no, we aren't eligible, but no one can answer *why* we wouldn't be eligible. First, we pretty explicitly meet the exempt purposes set forth in section 501(c)(3). Also, I have worked at different types of public libraries that have been 501(c)(3)'s. Based on my reading of the IRS's eligibility requirements and state education law, the important part as far as the IRS is concerned is the structure and authority of an organization's charter. The Board of Regents is responsible for chartering public libraries in the state, so why should it matter what type of library results from the charter? However, IANAL, so I may be misunderstanding or missing something important. That's where you come in!

 

WNYLRC ATTORNEY'S RESPONSE

In Greek mythology, the "chimera" is an intact, functioning animal boasting the features of other animals: the head of a lion, the body of a goat, and the tail of a serpent (or a dragon, depending on your source).

Libraries are legal chimeras.

In fact, not only are libraries legal chimeras, but depending on the "type" of library, they are each their own, special type of chimera.

For instance, a village public library/chimera would have: the head of a village, the body of a not-for-profit corporation with municipal fur, and the tail of an education corporation as chartered by the Regents.  An association public library, on the other hand, would have: the head of group of local library-loving people, a furless not-for-profit body...and more options for the shape of the tail.

Why all this chimera imagery?  Once we take the member's question out of the cold, harsh light of logic and throw it into the dappled sunlight of myth, it is easier to unpack the confusion underlying their question.[1]

Following our "hybrid mythical animal" analogy, a special district library has: the head of a three-headed dog[2], and, if the authorities determine that it has the power to tax, the tail of a scorpion, which could render it unable to be regarded as a 501(c)(3).

This "power to tax" part is at the heart of the question.

As set out on page 10 of the "2018 Library Trustee Handbook" posted at https://www.nysl.nysed.gov/libdev/trustees/handbook/handbook.pdf, the mythical creature that is a non-association public library (of any kind) can choose to register as a 501(c)(3):

"Public libraries (municipal, school district and special legislative district) are, by definition, a government entity under IRS code, and therefore tax exempt and not 501(c) (3) corporations. However, public libraries may receive a confirmation of tax exempt status from the Internal Revenue Service to use with grant makers and businesses."

But if a special district created by legislation has a scorpion's tail and can levy a tax, they might not even qualify for the "confirmation."

Why is that?  I'll let the IRS (mostly) do the talking[3]:

Examples of entities that may be considered "separately organized" [and thus able to qualify as a 501(c)(3)] include colleges and universities; hospital, housing, or development authorities; public library boards; water or park districts; public school athletic associations; charitable trusts; and organizations created by inter-governmental agreement.

...[But]..

Under Rev. Rul. 60-384, a government entity will not qualify for exemption if it has powers beyond the scope of section 501(c)(3). For example, where an instrumentality exercises substantial enforcement or regulatory powers in the public interest (such as health, welfare, or safety regulation), it will not qualify.

...[for example...]

Example (3): W is a public library board organized under a state statute authorizing it to determine the tax rate needed to support its operations within specific maximum and minimum rates. W does not impose or levy taxes, but submits the tax rate to the county auditor who certifies it to the county adjustment board. The library tax is collected in the same manner as other taxes by the county treasurer, who transmits to the library board its share of tax revenues. Since W does not itself have the power to levy taxes, but only to determine tax rates, it does not have a prohibited governmental power and may qualify for exemption under section 501(c)(3). Rev. Rul. 74-15, 1974-1 C.B. 126. [emphasis added]

On the flip side, the guidance quoted above confirms that once a "special district" has a substantial government power (like taxation), it does not qualify for exemption as a 501(c)(3).

Now, here's where I go out on a limb: most[4] special district libraries do not have the power to tax directly.  That said, there certainly are "districts" in New York that have the power to sting--I mean, to tax--or other powers the IRS has determined disqualifies the entity from qualifying as a 501(c)(3), so a library should assess this issue before deciding what it qualifies for.[5] But generally,[6] special district public libraries rely on municipalities and school districts (and perhaps other taxing authorities) to collect their annual levy...and per IRS guidance, that means they can qualify as a 501(c)(3), just like the Handbook says.

What is the magical formula by which a library can assess what type of chimera it is for tax purposes?  As of this writing[7], the IRS posts that at:

https://www.irs.gov/government-entities/federal-state-local-governments/governmental-information-letter

And since this ATL is all about the IRS, we'll give them the last word (taken from the link above):

As a special service to government entities, IRS will issue a “governmental information letter” free of charge. This letter describes government entity exemption from Federal income tax and cites applicable Internal Revenue Code sections pertaining to deductible contributions and income exclusion.  Most organizations and individuals will accept the governmental information letter as the substantiation they need.  

Government entities can request a governmental information letter by calling 877-829-5500.

So, you can call Charon[8]--uh, the IRS--and ask them to ferry you across into 501(c)(3)land, for free. 

Good luck crossing over the Styx...I mean, conferring with the IRS on your tax-exempt status!



[1] I am not saying the member is confused.  In fact, the question shows they are quite lucid; it's the legal picture that is muddy.

[2] Since it is usually comprised of a combination of other districts and/or municipalities.

[3] The full document is here: https://www.irs.gov/pub/irs-tege/eotopice90.pdf.  If you think I am off the rails with this "chimera" stuff, wait until you see how they distinguish an "entity" from an "instrumentality"!

[4] All?? I want to say all.  But I have learned to avoid absolutes in libraryworld.

[5] The IRS guidance cited states "There are three generally acknowledged sovereign powers: the power to tax, the power of eminent domain, and the police power. An entity is a "political subdivision" only if it has a substantial sovereign power. It need not have all three sovereign powers, but possessing only an insubstantial amount of any or all of the sovereign powers is insufficient."

[6] And by generally, I mean, "insofar as I know" because if there is one thing I have learned about libraries, it is to NEVER assume an absolute.

[7] July 6, 2022.

[8] Why yes...I have been re-reading "D'Aulaire's Book of Greek Myths" with my 8-year-old.

 

Tags: 501c3, IRS, Taxes

Topic: Liability Insurance for Notary Services - 06/30/2022
Should libraries that have Notaries Public on staff have notary liability insurance for those libr...
Posted: Thursday, June 30, 2022 Permalink

MEMBER QUESTION

Should libraries that have Notaries Public on staff have notary liability insurance for those library staff? Or would that be covered by the library's general liability insurance? We don't want our staff who are providing Notary Public services to be putting themselves at risk.

 

WNYLRC ATTORNEY'S RESPONSE

These are very important questions.

Just in case any reader needs a refresher, a "notary public" in New York performs critical services: administering oaths and affirmations, taking affidavits and depositions, certifying acknowledgements or proof of critical documents (such as real property deeds, mortgages, and powers of attorney), and certifying copies of official documents.

Anyone who has ever had to have a document notarized knows how important finding "a notary" can be.

In New York, the power of notaries is summarized in Article 6 of the Executive Law.

Of relevance to the member's question, that law also imposes penalties for mis-applying a notary’s power:

"For any misconduct by a notary public in the performance of any of his[1] powers such notary public shall be liable to the parties injured for all damages sustained by them."

So, what does "misconduct" by a notary, for which they "shall be liable" look like?

Examples found in the case law of New York include:

  • Inattention to authentication of a signature resulting in allegations of a forged real property deed (Chicago Title Insurance Company v. LaPierre, 2013);
  • "Gross negligence" asserted after a notary allegedly authenticated a forged signature, causing a person not on a lease to be sued for its violation (Independence Leasing Corporation v. Acquino, 1986);
  • A bank suing for "notarial misconduct" when a forged signature led them to rely on a document guaranteeing a loan (Marine Midland Bank v. Stanton, 1990).

In each of these cases, the "liability" led to demands for money related to the alleged misconduct...as well as legal fees for having to sue.

Also of relevance to the member's questions, in addition to personal liability of a notary, case law shows that when misconduct is asserted against a notary who performed the service as part of their employment, the employer was also named (which is what happened in the Independence case listed above).

Of course, not all assertions of notarial misconduct will be found to be valid.  But since even a case brought in error requires a timely and effective defense, an assertion of notarial misconduct can cause expense (and stress!) for the notary (and their employer).   Which is why the member is rightly concerned about protecting a library employee serving as a notary.

With all that as background, to answer the member's questions, here are five critical steps before any employee should serve as a notary public as part of their work for a public (including association) library:

1.  Before offering the notary services of an employee, a library should confirm with their insurance carrier that their coverage includes a claim of "notarial misconduct."

In New York (and throughout the country, but we're focusing on New York here), different insurance policies include (and exclude) different coverage for things.

Because of this, there is no one "type" of coverage I can assure readers that will always cover an assertion of notarial misconduct. 

And because of that, a library should work with its insurance broker and/or insurance advisor, or directly with the carrier, to ensure (and then be assured, in writing) that such coverage is included in their policy (and extends to employees).

This is critical not only when insurance is first obtained, but whenever the carrier issues a new policy (or when there is a change of carriers). 

2.  Before offering the notary services of an employee, the library should confirm that offering notary services is in the employee's job description.

An employee who has taken the time to study the requirements, passed the exam, maintained the license, and operates as a notary as part of their work at the library, is taking on risk to offer something of value to the community. Adding that ability and service to an employee's job description accomplishes two important things.

First, it acknowledges the value of the license held by the employee.

Second, by making it clear that the employee is offering notary service as part of their job, it helps ensure that the library's insurance coverage will cover the employee if there is an assertion of notarial misconduct[2].

If the library cannot amend a job description to include this ability, the provision of notary services should not be a part of library services offered.

Further (and this is critical) if the library can't consider the employee to be offering notary services as a service, the employee should not notarize documents when "on the clock" for the library.

3.  Before offering the notary services of an employee, the library should confirm the adequacy of its internal procedures.

A notary public's function requires several things to ensure compliance: time to perform the function properly, good record-keeping to ensure that the function was properly performed, and consideration of how such records will be kept secure and confidential.

An example of this is found in the new guidelines for remote notary posted at dos.ny.gov/notary-public.

Screenshot from the new guidelines for remote notary. Text reads: Is a notary journal required? Yes, the notary public must keep a journal of all remote notarizations performed. Each journal entry must be made contemporaneously with the performance of the notarial act, and each entry must include the date and approximate time of the notarization, the name of the remote signor, the audio-visual technology used to perform the notarization, the number and type of documents officiated and notarial services provided, and the type of identification/credential presented by the remote signor of the document or documents. The journal must be kept by the notary public for as long as they remain a notary and for an additional five years thereafter.

In addition to what is required by law, the library's insurance carrier may also have some requirements, so a solid internal procedure should include their input, at well.

And of course, whatever is needed should be supported in the library's budget.

4.  Before offering the notary services of an employee, the library should confirm how it promotes awareness of the service.

Section 135-b of the Executive Law also sets some rules for how notary services are advertised!  Because of this, libraries should be careful about how the notary services are promoted.  For more on that, see the rules posted by the New York Department of State at:

https://dos.ny.gov/system/files/documents/2022/04/notary.pdf

And finally...

5.  Please don't let the red tape in this answer stop your library from offering notary service.

I know the considerations of this answer have gone a little further than the specific content of the question.

Further, I know that words like "liability" and "misconduct”, and "insurance" can be intimidating, and signal expense.

However, for anyone out there who has ever had to desperately search for a notary public on a time-sensitive basis, you know that assured notary services are a real boon to a community.

I encourage any library who is offering notary public services, who may read this and think "uh-oh," to consider it a critical community service that is very much worth the time and effort to properly support.

In addition, I urge libraries to support and honor the hard work of any employee who has obtained their notary license by ensuring these steps and make sure they have the proper resources to offer the service confidently.

In that spirit...many thanks to the member for an important set of questions!



[1] This is a verbatim quote.  Although the use of the pronoun "he" suggests there could be a loophole for those who use another pronoun, notarizing is a non-gendered sport for anyone who has attained the age of 18, and charges of misconduct are open to all.

[2] Of course, if the alleged misconduct is willful (for instance, aiding with deliberate fraud) the carrier will likely disclaim coverage of the employee...but may still cover the library (a scenario to discuss with the carrier).

 

Tags: Liability, Public Libraries

Topic: Dos and Don'ts Of Addressing School Library Censorship - 06/29/2022
NOTE: On 5/13/22, Erie 1 BOCES hosted a program[1] regarding school library materials management.&...
Posted: Wednesday, June 29, 2022 Permalink

MEMBER QUESTION

NOTE: On 5/13/22, Erie 1 BOCES hosted a program[1] regarding school library materials management.  That same week, the Erie County Bar Association hosted a CLE on the same topic[2].

At both programs, school district library personnel discussed the ethics of their professions.  They also shared their personal experiences with collection management issues, including attempted censorship of library materials.

Both sessions were inspired by concerns, rooted in the current political climate, that school districts could feel pressure to sidestep policy and direct the removal or limitation of "controversial" library materials without due process.

The law, policy, and case law covered at the session was extensive. Below is a summary of the major take-aways, in a "Do's and Don'ts" format.

QUESTION

What are the "legal do's and don'ts" of school district library collection management in New York?



[1] "Collection, Selection, Objection": the recording can be located through your regional BOCES or school district library system.

 

WNYLRC ATTORNEY'S RESPONSE

DO ensure your school district library system, school district, or school has a robust and well-thought-out "school library materials policy"[1] ("Policy") governing selection, procurement, cataloging, lending, concerns, re-evaluation, and removal of library materials.

DON'T forget to train every person with a role in that Policy[2] on how it works, and why the district has it in place; this includes spending time on the law, regulations, and ethics[3] that govern it.

DO ensure that experienced lawyers and policy-makers have reviewed the Policy for both legal compliance, and compatibility with the unique environment at your district or school.

For example, if your school has an active PTA that likes to fund-raise and donate books to the school library, the method of accepting those donations should conform to the "selection" part of the Policy.[4]

DON'T adopt a Policy and then let it gather dust.  A policy that governs selection, procurement, cataloging, lending, concerns, re-evaluation, and removal of school library materials is a vital part of a school's library--which is a vital part of a school.

DO make sure your Policy honors the professionalism and qualifications of your school librarians and media specialists.  When considering how your district's Policy applies in real-world situations, remember that your school library staff are trained in the selection of library materials.   Because of that, your district's Policy will delegate responsibility for selection and cataloging to those professionals[5] ...and the law in New York, policy of your district, and job descriptions will back that authority up.

DON'T create a potential liability for your school by taking quick steps related to library collection management issues without checking with your district's Policy and lawyer.  Cases such as Pico[6],  the seminal case regarding school board over-reach regarding school materials, happened because school leadership took hasty action without considering policy.

DO maintain familiarity with the most basic tenets of the law in New York regarding school district library systems and school library operations.  This includes Education Law § 1709(1), Education Law §1711[2] [c, d], Education §Law 701, Education law §702, Education Law §310, 8 NYCRR § 90.18 and 91.2.  For a good primer on these, review the NYSED Commissioner Decision 14,229  "Matter of Carney."[7]

Notably, the case law and NY Education Commissioner decisions emanating from these laws and regulations show that ad hoc decisions about curricular and library materials imposed without consulting policy can lead to legal claims, creating unnecessary media attention, community tension, and expense for school districts.

DON'T impose "creative work-arounds" such as using "soft" directives to influence school library collection issues without following policy.

Hypothetical examples of such "creative work-arounds" include:

  • Directing library staff to keep "controversial" books in the collection, but move them off the shelves and into a store-room;
  • Stigmatizing books in the collection by making them available "by request only";
  • Telling parents and guardians with concerns that library material will be removed, without referring them to the relevant policy for lodging a complaint or requesting that it be re-evaluated;
  • Identifying books that may only be checked out after obtaining parent/guardian consent[8];
  • Sharing lists of books checked out by students in excess of what professional ethics, FERPA and CPLR 4509 (regarding privacy) allow;
  • Directing school library employees to avoid selecting a certain "type" of material, even if that material is otherwise appropriate per the district's Policy;
  • Basing content bans on categories of identity protected by local, state, and federal civil rights laws.

These are just a few examples...but anything that would remove or restrict access to school library materials, without applying due process, risks a legal concern and tripping the factors found unconstitutional in Pico.

DO build an administrative and educational team that is READY to respond to concerns about curricular and library materials.  

When it comes to content choices in the classroom or in the library, no Superintendent, Principal, or school board chair can do it all. 

A team consisting of the school librarian, experienced teachers and administrators, the district's lawyer, and as needed, the school board, should be ready to respond promptly when there are materials concerns. [9]

DO remember that for every school library material challenged, there are people being impacted by the challenge--including yourself.

These are tough times for school administrators.   Across the country, there is a great awakening to the importance of school boards and the leadership of public institutions such as libraries.

This is good, but it has turned school districts and libraries into zones of potential controversy, with administrators charged with keeping the peace--and people threatening lawsuits on all sides.

At such times, there are three things that, when combined, can create refuge and stability:

First: a cool head.

Do not take an ad hoc action when presented with a library materials concern; lead with policy.

Second: a good team. 

Rely on your people.  They will help ensure legal compliance, the well-being of students, and good service to the community.

Third: a solid policy.

Have it, know it, follow it.

Administrators who find the culture wars on the doorstep of their schools cannot avoid controversy.  But when controversy arrives, if they DO follow policy, and DON'T take ad hoc steps in a panic, school administrators can provide a structure for communities to navigate open and honest discussions[10] of library materials, community values, and their educational environment.

Below is a template[11] for organizing a response, when a library materials[12] issue happens at your school.

School library material concern worksheet

For internal and personal use only

Important information

Answer

Material at issue (title, author, media):

 

 

Material catalog information (year acquired, category, shelf location):

 

 

First date person using form became aware of complaint:

 

Complaint made by:

 

Note: Person is the "Complainant"

 

 

Is the complainant a parent or guardian?

 

 

Is the Complainant part of a group?

 

Attach group information

 

 

 

Based on their relationship to the school or community, does the Complainant have standing to make a complaint?

 

If yes, continue with worksheet...

 

Is the Complainant following the formal complaint process?

 

 

Has the Complainant been provided with a copy of the policy governing how to make a complaint?

 

Name of school librarian

 

 

Other school staff involved in complaint or concern

 

 

What is/are the relevant policies?

[attach all policies that apply or might apply]

 

 

What people are assembled to help with or to effect response ("Response Team")?

 

 

What professional ethics do the members of the response team have to consider when working on this issue?

[attach copies of any relevant codes of ethics as confirmed by team member]

 

 

 

Is there a student involved?

 

 

What person on the response team is the primary contact with the student?

 

 

Is there any safety or well-being concern for any person involved?

 

 

Is there any media or social media discussion of this issue? 

 

[attach printouts of relevant content]

 

Is there a relevant union contract or other contract?

[attach contract or relevant section]

 

 

Who is the spokesperson for the school or district on this matter?

 

 

 

Track relevant deadlines set by policy or commitment to involved parties:

 

 

Deadline:

 

 

Deadline:

 

 

Deadline:

 

 

Deadline:

 

 

Deadline:

 

What was the final outcome of this issue?

 

 

When was this matter considered to be complete?

 

 



[1] Across New York, this type of policy has many names, and sometimes, is covered by numerous policies.  New York prioritizes local control of school district policy, so a diversity of approaches is right and proper.  The point is that no matter what it is called, or how many policies end up applying, a district has a policy that covers selection, procurement, cataloging, lending, concerns, re-evaluation, and removal of school library materials.  Very often, this will need to be coordinated across school library systems.

[2] For the rest of this article, we're using "Policy" with a capital "P" to denote whatever policy or combination of policies a district has adopted.  That's right, with a capital "P" that rhymes with "C" that stands for "cool" (as in, "We're cool; we have a Policy for this").

[3] The ethics of the profession of school librarian as emphasized by NYSED are found at http://www.nysed.gov/curriculum-instruction/teaching-learning-intellectual-freedom

[4] Sometimes, this might mean having to say "No, thank you," or "We need to take a different approach," to the PTA.  Just another day in school administration.

[5] This is another factor that will vary from district to district in New York, but every policy I have seen grants a significant role to the librarian.  This is why a good hiring pipeline for qualified school librarians and media specialists is critical.

[6] Found at: https://www.oyez.org/cases/1981/80-2043 . This US Supreme Court case ruled that "although school boards have a vested interest in promoting respect for social, moral, and political community values, their discretionary power is secondary to the transcendent imperatives of the First Amendment." 

[8] This one is a HUGE concern, because in addition to potential legal and regulatory violations (about which countless law review articles and books have been written), it sets a precedent of parent/guardian pre-approval for ALL school materials...something that is antithetical to the democratic process by which public schools operate. 

[9] "Promptly"...but not immediately.  The benefit of having a team ready to go, and letting parents or community members know that your school is organizing a response per your district's policy, is that it signals that you take the complaint seriously, but also gives the situation breathing room.

[10] Yes, I know "open and honest" can often sound "angry and passionate."

[11] As with all templates on "Ask the Lawyer," this one is illustrative only.  A district or administrator wanting to develop such a resource should confirm a final draft with their lawyer.

[12] This template is for library materials concerns; there are some different factors when there is a challenge to curricular materials.

 

Tags: Book challenges, Censorship, First Amendment, Intellectual Freedom, Policy, School Board, School Districts, School Libraries, School Policy

Topic: Pride Month Displays - 6/23/2022
[NOTE: We didn't get this as a submission to "Ask the Lawyer", but we wish we had......
Posted: Thursday, June 23, 2022 Permalink

MEMBER QUESTION

[NOTE: We didn't get this as a submission to "Ask the Lawyer", but we wish we had...]

Our library board is considering a resolution to bar displays celebrating Pride Month.  The ban focuses on, but is not limited to, displays in children's/YA areas.  Is this a legal issue?

 

WNYLRC ATTORNEY'S RESPONSE

YES. Expressly barring library displays based on categories protected by law, such as sexual orientation and gender, is--among other things--a legal issue.

This is not to say a library can't pass a policy on library displays.  A library could easily implement a policy that requires displays to be timely, that they be reflective of the needs of the community, and that they display an array of materials from different sources.  Such a policy, done thoughtfully and with director and attorney input, could be perfectly appropriate, legal, and in line with the mission of a public library.

In addition, such a policy could address and provide established and well-thought-out procedures for the library to address:

  • Concerns that a library display violates the bar on political activity by a library;
  • Concerns that a library display is age-inappropriate;
  • Concerns that the content in a library display is illegal;
  • Concerns that the display could objected to by members of the community; and
  • Concerns that the display is boring, non-engaging, and/or irrelevant.

But what such a policy could NOT do (without tripping legal concerns) is make blanket rules about display content based on categories that align with identities protected by law. [1]

Further, if such decisions are made in a vacuum, without policy (like an ad hoc board resolution), they run the risk of being both discriminatory and "arbitrary and capricious."  Such a ban--especially coupled with the dialogue and community interaction that might precede and follow it--could set the stage for:

  • A claim of discrimination by a trustee;
  • A claim of discrimination by an employee;
  • A civil rights claim by a patron;
  • A report triggering an investigation by the New York Division of Human Rights[2];
  • A really awkward moment at the next sexual harassment training, since in New York, "sexual harassment" includes harassment on the basis of sex, sexual orientation, gender identity and the status of being transgender.

In addition, there are many local municipalities that have their own protections for certain protected categories, including sexual orientation and gender identity and expression.  So there is a risk of implicating not just state and federal, but local law, as well.

Of course, such a ban is FAR MORE that a legal issue.  But amidst everything else, it IS a legal concern.  And while their primary duty is to serve the library's mission, public library trustees also have a fiduciary duty to guard against claims that the library has violated state, federal and local civil rights laws.

How would a library board walk back having taken such a position?  Ideally, very quickly and decisively, with confidential legal advice from their local attorney[3].  This is because in and of itself, such a ban might not be enough to trigger legal action...rather like how just vodka isn't enough to make a martini.  But who knows when the vermouth will show up?

That said, if a board is at this point (and especially if the library director and staff are watching, without being consulted[4]), even after serious consideration of a such a policy or directive, change is possible

After all, each and every library trustee and employee in New York (and even their lawyers) can always learn more about the New York Human Rights Law,[5] federal civil rights law, and perhaps even the protections in their municipality.

And public libraries are there to enable learning by everybody.

Everybody.



[1] In New York, that includes: race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, marital status, or status as a victim of domestic violence.

[2] https://www.nysenate.gov/legislation/laws/EXC/296 This links brings the reader to a partial list of barred discriminatory actions.  Here is an excerpt (in other words, there's more): " 2. (a) It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement,
because of the race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, marital status, or status as a victim of domestic violence, of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, including the extension of credit, or, directly or indirectly, to publish, circulate, issue, display, post or mail any written or printed communication, notice or advertisement, to the effect that any of the accommodations, advantages, facilities and privileges of any such place shall be refused, withheld from or denied to any person on account of race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability or marital status, or that the patronage or custom thereat of any person of or purporting to be of any particular race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex or marital status, or having a disability is unwelcome, objectionable or not acceptable, desired or solicited.

[3] And perhaps a check-in with their "directors and officers" insurance carrier.

[4] This type of issue is part of why the author consistently recommends trustees be trained on non-discrimination policies (including sexual harassment).

[5] https://dhr.ny.gov/new-york-state-human-rights-law

New York State Division of Human Rights Website

Tags: Board of Trustees, Discrimination, Ethics, Policy, Displays, First Amendment, Intellectual Freedom, New York Civil Rights Law

Topic: Use of Meeting Room Space Question Mash-Up - 06/14/2022
We recently received 2 questions that raised related issues, so we've merged them in this &quo...
Posted: Tuesday, June 14, 2022 Permalink

MEMBER QUESTION

We recently received 2 questions that raised related issues, so we've merged them in this "Ask the Lawyer Meeting Room Question Mash-Up" RAQ.

Here is question 1:

"Students frequently meet in the library with tutors. This typically happens in the open areas of the library but also in a few small study rooms. These rooms are available to everyone, restricted only by number of people and available for 1 hour on a first come, first served basis. Individuals and groups may stay longer in a particular room if no one else is waiting for the space. Rooms are not available to book ahead of time.

Some of the tutors are likely charging for their time, though many are not (studying with friends or similar). We have always considered the library's service to the students as paramount over any benefit to the tutor but is this an allowable use of library space due to the possible inurement and aid to an individual?"

Here is question 2:

"I've just finished viewing the first amendment audit webinar.... Such a great resource. Thank you!! I was wondering about meeting spaces and the language we can use to protect patrons in areas that they have been reserved for private meetings (scouting group in the meeting room, deposition in a tutoring room, tutoring, tele-med sessions, supervised visits etc.)"
 

 

WNYLRC ATTORNEY'S RESPONSE

These meeting-room related submissions to "Ask the Lawyer" were inspired by two separate resources: the first one, an "Ask the Lawyer" RAQ on meeting room policies, and the second, an ESLN-sponsored training.

If you've read the questions, you know they will not have the same answer.  So, as recent viewers of the new Spider-Man movie may have asked,[1] why the mash-up?

Because the answers share the same foundation: the rules around community access to space.

The first question is based on a concern we addressed in the RAQ on meeting room policies.  Here is the part that inspired the question:

"No, there is no legal requirement for public libraries to limit access to space to non-profit organizations.

However, there IS a requirement for any "charitable" entity[7] in New York to not allow any of its assets to “inure” to any one individual, while non-association libraries have to follow an even stricter rule against "aid" to individual people or businesses as set by the NY Constitution (this is why a town library can't use funds to throw a big "bon voyage" party to celebrate a retiring employee, but its not-for-profit "Friends" can)."

The second question is asking for model language, within the framework of what is allowed, to protect the rights of those using the rooms.

So, like a webslinger arcing majestically from issue to issue, let's do this.

The First Question

Is a person using free resources at the library for personal gain violating the law against "inurements"?  Most likely: no.

The resources at public libraries can often serve as the first, critical building blocks of a small business.  A person wanting to research an idea, create a 3-D printing of a product prototype, select neutral ground to meet a potential investor, or offer compensated services (such as tutoring) can often find what they need--for free--at the library.

The dawn of the co-working space might be changing this for people who can afford to rent space in a co-working facility that will supply desk space, internet, and even a mailing address.  But for fledging entrepreneurs on a budget, the free resources and information provided by libraries can be essential.

And why doesn't such use of library resources for a business/personal gain risk tripping the bar on "inurements"?

Because the resource is available to the community equally, per library policy.  In the member's scenario, the library is providing first-come, first-served space suitable for, among other things: group work, a political discussion, or tutoring (with or without compensation).  The library is providing a place for people to sit and talk, so long as they arrive in time to gain access to a finite resource.

Once people are availing themselves of library services, a library can't set further rules about the relationship between the parties; so long as their interaction remains within library policy (not disruptive, not in excess of established time limits, etc.). In other words, the relationship between the parties, or an activity that fits within authorized use, can't change the otherwise compliant use of the library space.

Where the member's scenario could get out of hand would be if:

  • The tutor starts advertising for services and uses the library as a business address;
  • The tutor starts "camping" (holding the space past established limits) in violation of the policy;
  • The tutor is an employee or independent contractor whose company specifically requires offering the services in the library;
  • The library has a policy against any compensated activity, whatsoever, being conducted on site.[2]

In each of the above examples, the service is exceeding the use generally available to any person using the library.  This is where the "inurement" can begin, and the use of public library resources for unambiguously private gain would begin.  But so long as no one is claiming or actually using the resource in excess of what is generally allowed, there is no issue.

The Second Question

Now that we've reviewed that "what applies to one must apply to all," we can turn to the other question: how can a library designate space used per policy and by reservation as "private," to avoid meeting crashers?[3]

Below this answer is listed a myriad of resources from the ALA[4] on this topic.  I urge readers to review these, as each one sets out important considerations on the use of library space.  But for now, we're dealing with this single, incremental question in the State of New York.

Once a library policy sets the terms of community access to private meeting space, here is language for signage at the entrance to the meeting space:

When reserved, this space is for designated users only.  To reserve this space, or to obtain a copy of the rules and contract for reservation, please visit [INSERT] or [INSERT].

A library can make this posted language as friendly ("This room is only for reserved events, and is private when in use.  Visit our circulation desk for more information!) or imposing ("Reserved, please do not enter without permission.") as it likes. The important thing is that the rules and terms of use are consistent with the law,[5] clearly established by a board-approved policy, and uniformly applied.

And there we go!

Thanks to both members for their insightful questions.

Additional Resources

For those of you who wanting more at the intersection of law, libraries, and meeting rooms, paralegal Klara in the LOSA[6] assembled this list of resources from ALA:

1. Meeting Rooms: An Interpretation of the Library Bill of Rights

- overview on library meeting rooms, suggestions for policies

2. Meeting Rooms Q&A

- includes standard definitions for terms included in policies

- lists what meeting room policies should cover

3. Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage

4. The Library's Legal Answers for Meeting Rooms and Displays

- an ALA eBook by Mary Minow, Tomas Lipinski, Gretchen McCord

- limited public forum vs. designated public forum vs. nonpublic forum

- lists legal cases relevant to library meeting rooms and exhibit spaces

5. OIF Blog - Library Meeting Rooms for All, by James LaRue (former director of the ALA Office for Intellectual Freedom)

 



[1] The answer to the Spider-Man part of this is of course obvious: because it’s a witty convergence of web-slingers.  Of course, as a Gen X nerd (b. 1973), I was a target demographic.  Well played, Marvel.

[2]Such a policy would be far too overbroad. If a paid babysitter takes the kids to the library regularly, would that be a violation?  If an accountant uses a library computer to check the tax code, would that be a violation?  If a professional writer uses the reading room every day to write/think/draft, would that be a violation?  That said, a policy against the sale or distribution of material items makes sense.

[3] Including those identifying as "First Amendment auditors"...a term I am loath to use.  I am a huge fan of the First Amendment, but those claiming to “audit” for it often demonstrate a less-than-fully developed familiarity with the Constitution. To me, people trying to film in a library while asking questions about budget, etc. are just "people who want to record in the library," and they warrant the same respect, and must follow the same rules, as other people who may want to record in the library.

[4] ALA is the national go-to for information on library matters, and we try not to replicate materials already available.  At "Ask the Lawyer" we deal with the legal nitty-gritty in New York, only.

[5] For more on that, see that meeting room RAQ at https://www.wnylrc.org/ask-the-lawyer/raqs/260

[6] "LOSA" = The Law Office of Stephanie Adams, PLLC.

 

Tags: Meeting Room Policy, Policy, Privacy, Signage, Templates

Topic: Napping in library - 06/14/2022
Sometimes, people nap in the library, particularly people who we believe might not have stable or ...
Posted: Tuesday, June 14, 2022 Permalink

MEMBER QUESTION

Sometimes, people nap in the library, particularly people who we believe might not have stable or sufficient housing. We feel that a library should not exclude people who need a secure place to rest, so long as there is no interference with library operations, but are there any legal considerations to this issue?

 

WNYLRC ATTORNEY'S RESPONSE

This is a VERY sensitive issue. There are many factors that could contribute to a person sleeping in a public space, including:

  • An undiagnosed medical condition
  • A diagnosed medical condition
  • Non-medical factors impacting behaviors
  • Temporary or serial lack of a safe, stable place to rest
  • Simply wanting to take a nap[1]
  • Any combination of the above-listed factors

Each one of these brings their own array of legal (and ethical, and moral) considerations.

But before we get into all that, let's discuss: for purposes of this question, what is "sleep"?

For purposes of this question, let's call "sleep" a "state of healthy, restful, and restorative unconsciousness."  In other words, "sleep" is that great thing we all do when our eyes get heavy, we yawn, and lie down, dozing into blissful unawareness.

Sleep: we all do it, and many of us love it.[2]

Now, let's talk about what sleep isn't for purpose of this question.  "Sleep" isn't, for purposes of this question; the result  of a concussion, a seizure, a stroke, an opioid overdose, or dangerously low blood sugar.   And yet, to the untrained eye, any one of these dangerous conditions could be mistaken for "sleep."[3]

Because of this, no matter how much my bleeding heart and sense compassion want to say, "Just let the person sleep in the library, and don't say anything," I can't.  I just can't bring myself to normalize ignoring what could be "sleep" one day, and a diabetic coma the next.[4]

That said, because it could be related to a real or perceived medical condition and/or disability, denying or restricting library services (including the right to simply be present in the library) on the basis of simply falling asleep could pose risks of disability discrimination.  Sleep happens, folks, and sometimes people can't help it.

So, what is the solution, here?

Well, as with many things, there is no one "right" answer.  But I will say:

1.  Every library should have a policy, or at least a "standard operating procedure" (or "SOP"), regarding "Suspected or Actual Medical Events in The Library."   That policy should address (among other things) what to do about perceived loss of consciousness or coherence by library users.[5]

2.  A" Suspected or Actual Medical Events in the Library" policy or SOP can also address incidental (meaning unintended) and deliberate use of the library for napping.
3.  This is where a library's discretion and autonomy kick in.

A library can decide if it is going to normalize sleeping in the library, or not.

If a library decides NOT to normalize sleep in the library, a simple statement such as "For assurance of safety, the library is a no-nap, no-sleep zone.  Thank you for helping us maintain this rule.  We understand that sleep happens; if you need to request ADA accommodations due to this rule, please contact NAME at INFO."   Then, as a rule, patrons who fall asleep should be awoken (just as patrons who bring food in might be asked to remove it, or patrons who don't wear shoes might be asked to put some on).

On the flip side, if a library decides, as a matter of policy, to allow users to sleep in the library[6], such a policy can also create the protocol for "safe napping," with those planning to sleep notifying staff, so the nap is not mistaken for an overdose, seizure, etc.

NOTE: Before selecting this option, a library should check with its general liability insurance carrier to make sure it is consistent with the library's risk threshold and coverage.

What does a "Suspected or Actual Medical Events in the Library" with a "sleeping" section look like?  Here is an example (with both a "sleep okay" and "no sleep" option at the end):

The XYZ Community Library is a welcoming, service-oriented, and inclusive space for all. To promote the health and safety of those using our library, the following possible medical events will result in the staff calling 911:

  • Any perceived or actual loss of sustained coherence or consciousness;
  • Any library user exhibiting signs that they may require emergency medical attention,

who does not expressly instruct staff that immediate medical attention is not required;

  • Any person requesting emergency medical response.

Definitions

For this policy, "loss of sustained coherence or consciousness" is the inability to communicate meaningfully with library employees in the user's primary language.

For this policy, express instructions to staff that "immediate medical attention is not required" may be disregarded at the considered discretion of the library employees; such a decision will be based on consideration of: the specific facts of the situation, respect for the agency of the user, and respect for the mission and operational needs of the library.

ADA

If a library user has a medical condition that can potentially result in perceived or actual loss of coherence or consciousness, you may use the library's ADA Accommodations policy to arrange reasonable accommodations so your library experience is not unnecessarily impacted by this policy. For example, if a library user has narcolepsy and wishes to be woken in the event, they fall asleep, the library can consider a reasonable accommodation such as allowing the user to use a specific type of alarm in an otherwise quiet space.

Specific Situations

Whenever possible, the library uses the following specific guidelines from the CDC with respect to common medical events that can impact coherence or consciousness:

Seizures

Seizures do not usually require emergency medical attention. Only call 911 if one or more of these are true:

  • The person has never had a seizure before;
  • The person has difficulty breathing or waking after the seizure;
  • The seizure lasts longer than 5 minutes;
  • The person has another seizure soon after the first one;
  • The person is hurt during the seizure;
  • The seizure happens in water;
  • The person has a health condition like diabetes, heart disease, or is pregnant.

Suspected opioid overdose
Call 911 if an overdose is suspected.

Recognizing an opioid overdose may be difficult. If it is unclear, treat the situation like an overdose and proceed with treatment. Even if the patient wakes up or seems better after one or two doses of naloxone, emergency medical assistance is still necessary.

Severely Low Blood Sugar

Blood sugar below 55 mg/dL is considered severely low. If any of the following happens, you should call 911:

  • A person with low blood sugar passes out;
  • A person with low blood sugar needs a second dose of glucagon;
  • A person with low blood sugar had glucagon but are still confused;
  • A person with low blood sugar stays too low 20 minutes after treatment or doesn’t respond to the usual treatments.

Concussion
Signs and symptoms of a dangerous concussion can include:

  • One pupil larger than the other;
  • Drowsiness or inability to wake up;
  • A headache that gets worse and does not go away;
  • Slurred speech, weakness, numbness, or decreased coordination;
  • Repeated vomiting or nausea, convulsions or seizures (shaking or twitching);
  • Unusual behavior, increased confusion, restlessness, or agitation;
  • Loss of consciousness (passed out/knocked out). Even a brief loss of consciousness should be taken seriously.

Call 911.

This policy, and sleeping in the Library

CHOICE 1: USE IF THE LIBRARY DECIDES TO NOT ALLOW PEOPLE TO SLEEP IN THE LIBRARY Because loss of consciousness can be a sign of a medical emergency, library users are asked not to deliberately sleep or nap in the library.

If a library user is asleep in the library, staff are instructed to wake them.

In applying this rule, the library will follow the requirements of the ADA; if a library user has a medical condition that can cause uncontrollable sleep, at that library user's discretion, they may alert staff so accommodations can be made (see "ADA" above).

CHOICE 2: USE IF THE LIBRARY DECIDES TO ALLOW PEOPLE TO SLEEP IN THE LIBRARY

If you have a medical condition that can cause uncontrollable sleep, at your discretion, you may alert staff so accommodations can be made (see "ADA" above).

If you simply find that the library is a nice, quiet place for you to take a nap, please alert us that you "Plan to take a nap" so our staff knows that you are asleep by desire, and not experiencing a medical emergency causing loss of consciousness or coherence. We'll give you a nice arrangement of purple flowers[7] to keep near where you're sitting so staff know you're deliberately using the library space to rest and restore yourself.

Users must limit planned napping in the library to no later than one half-hour before close, so you have time to gather your thoughts and energy before it is time for us to close up the building.[8]

If your nap creates loud snoring or other disruption, we may have to wake you! Please be gracious to staff who are responsible for making sure the library is a welcoming and inclusive space for all.

As with any template, before adopting a policy based on this one, review the final version with your lawyer (and, as noted above, your library's insurance carrier).

And a final note: I truly wish I had a better answer to this question.  As I said at the beginning, this is a VERY sensitive issue.  But if a commitment to library access, safety, and mission guide the decision, your library can find the best answer for  YOUR library.

Thank you for this tough question.



[1] This bullet might be more properly be phrased “Sometimes people just want to take a damn nap,” meaning that forces that get in the way of said nap are unreasonable.   I have to disagree in this case, but I get it.

[2] And if you suffer from insomnia, you may not do it enough.  I feel you, fellow lying-awake-at-2AM-person.

[3] If you are a trained medical professional qualified to diagnose of a concussion, a seizure, a stroke, an opioid overdose, or dangerously low blood sugar, this statement obviously doesn't apply to you.

[4] One of my children has Type 1 Diabetes (the kind where you can't make your own insulin, because your immune system attacked the Beta cells in your pancreas) so this issue hits close to home.

[5] When in doubt, call 911.

[6] Just in case it isn't readily apparent, I am truly neutral on whether or not to "normalize" sleeping in a library.  Truly, I can see the benefit to a decision either way; the point is to make a deliberate decision based on a commitment to access, safety, and smooth library operations.

[7] It doesn't need to be flowers (purple or otherwise), that’s just me being cute.  The point is having a signifier or system, so employees know the lack of consciousness didn't start as a medical issue.

[8] I worked on this question while sitting in my back yard on a sunny day in May. I asked my 7-year-old neighbor, Matt, who is possessed of both a wise spirit and a blunt nature, if he thought people should be able to sleep in the library.  "No," he said, after a moment’s reflection.  "They might not be seen and could get locked in for the night."  He then asked me: "You do this for your work?" Kids are the best.

 

Tags: Accomodations, ADA, Patron Confidentiality, Policy, Templates

Topic: Reference Services for Incarcerated Populations - 06/08/2022
Periodically, our library receives handwritten requests for information from individuals who are i...
Posted: Wednesday, June 8, 2022 Permalink

MEMBER QUESTION

Periodically, our library receives handwritten requests for information from individuals who are incarcerated at prisons and correctional facilities around the country.

We are an academic library at a private institution and our campus does not currently have a prison outreach program. As part of our ongoing social justice efforts within the library, we would like to be more purposeful about the way we handle these reference questions.

What are legal considerations we should keep in mind when providing reference services to incarcerated individuals? Ideally, we would want to treat these questions the same way we would questions from members of the general public. However, our team wants to be sure we understand whether there are ways we could unintentionally put ourselves or our institution at legal risk if we provide information that is somehow deemed problematic.

(Note: We are aware of the Prison Library Support Network and plan to participate in trainings they may offer.)
Thanks!

 

WNYLRC ATTORNEY'S RESPONSE

As I have written before, a big rule for the "Ask the Lawyer" service is "don't reinvent the wheel!"

So before I answer this, I will reiterate the member's mention of the "Prison Library Support Network", and refer readers to their excellent guide "Reference Letter Writing: A Volunteer Handbook."

The "Volunteer Handbook" reviews a lot of what I would otherwise supply: how to be respectful of an incarcerated person’s needs and personal considerations when responding to a reference request, how to be aware of and work within the larger social dynamics at play, and--critically--the practical considerations of sending mail to incarcerated people (it's also well-written, which is always a plus).

To the "Volunteer Handbook" I would add just a few considerations for a library at a private higher education institution:

First, it is important to recognize that while library services provided in the state of New York by both public libraries and academic libraries are confidential, incarcerated individuals do not have privacy with respect to information they receive via the mail.  Therefore, the normal librarian/library user dynamic is "off."

Here is a sample of the scrutiny mail to a person living in jail or prison will be subject to:

(c) Printed or photocopied materials.

(1) When, in the course of inspection, printed or photocopied materials are found, the entire contents of such correspondence may be delayed through the correspondence unit for up to six days while the materials are subject to media review guidelines (see Part 712 of this Title).

(2) A limit of five pages of printed or photocopied materials (an individual newspaper clipping will be considered one page) may be received within a piece of regular correspondence (except as provided in paragraphs [3] and [4] of this subdivision). In order to facilitate media review, pages or clippings must not be taped, glued, or pasted together or to other papers.

(3) Not to exceed once every four months, an inmate may make a written request to the superintendent to receive in excess of five pages of printed or photocopied legal papers specifically related to the inmate's current legal matter (e.g., legal brief or trial transcript relating to the inmate's active case) within a piece of regular correspondence. The inmate shall make the request in advance...[etc.]

Ugh.  That's a lot of compromised privacy.[1]  So, from the outset, just keep in mind that per 7 CRR-NY 720.4, as well as a facility's customized policies and procedures, the usual rule of confidentiality will not apply.

Aside from that, I add three things:

1.  An academic library should specify via written policy if it offers library privileges to community members within a defined geographic scope (not just students, alumni, and employees).

2.  An academic library should have a policy setting out its capacity and limits for providing hard copy/mailed responses to reference requests.

3.  If a library is going to provide services specifically to incarcerated persons living beyond the geographic scope allowed by their policies (as the member's question says, they get questions "from around the country"), a specific policy should be developed for providing that service, even if the institution doesn't have a fully-developed prison outreach program.

These three policies should be applied evenly, fairly, and with attention to budget and capacity. This means:

With respect to #1, if an academic institution allows residents within 100 miles to have library privileges, and there is a prison within that radius, a person who is incarcerated may have library privileges (although their ability to exercise them may be limited).

With respect to #2, if an academic library provides written, mailed responses to users, there should be time and resource limits on providing that service to users, and those limits should be uniformly applied with respect to both staff hours, and copying/mailing budget.

And with respect to #3, if a private academic institution wants to provide services to persons living in jail or prison beyond the scope of their usual services, but it not able to develop a full prison outreach program, such services should still be done per a specific policy.

Why a specific policy, if there isn't a fully developed outreach program?  A few reasons.  First, it will help set the boundaries for the service, based on the library's capacity.  By establishing those boundaries, the library/institution will be able to show that the resource is being allocated fairly.  And finally, it provides clarity on how such services are provided, who is responsible for providing them, and how much is allocated for the expense associated with them (useful information if your institution ever wants to expand the service through a grant).

Here is a sample policy:[2]

[ABC Library] Policy on Reference Services to Incarcerated Persons

Policy

As part of our mission, the [ABC College Library] provides up to [20 hours per month] of reference services to persons incarcerated anywhere within [the United States].

Procedure

Upon receiving a reference request from a person who is incarcerated, the ABC Library assesses if the inquiry can be answered by the library within [one month (30 days)].[3]

If it can be answered, the question is placed in a queue to be answered in order of receipt, and an answer will be sent via the USPS within 30 days of receipt.

If it cannot be answered, either due to a large queue, or because it is not within the capability of the institution, a reply is sent stating "The ABC Library received your request for reference services, and regrets that answering your question is not within our capability at this time."

The position responsible for reviewing requests, and for assessing and effecting a timely response, is [INSERT]. This responsibility may be delegated, based on capacity.

OPTIONAL: To the greatest extent possible, persons within [NAME Correctional Facility], which is in the Library's area of service, are served per the library's policy on community members, and hours spent serving such users are not counted against the monthly amount allowed under this policy].

I appreciate that for many institutions of higher education, this question is deeply related to mission. Therefore, in adopting even the most informal policy, such as the one above, I also suggest considering a recital of how the work specifically plays into the mission of the institution.

Thank you for a thoughtful question.



[1] I get why, but as someone opposed to the carceral system in general (we can do better), this is just another reason to develop a better system.

[2] [Text in Brackets] in this sample policy indicates places where customization is most needed.

[3] An institution should research what time frame they feel is fair to offer; for some inquiries, sixty, or even ninety days may be reasonable.  This depends on the type of inquiries your institution is receiving...especially since this is a policy for a reactive service, rather than a deliberative outreach program.

 

Tags: Academic Libraries, Ethics, Policy, Templates, Reference

Topic: Library Employment Contracts - 06/07/2022
Our Board of Trustees is searching for a new director. Our Library has transitioned from a very sm...
Posted: Tuesday, June 7, 2022 Permalink

MEMBER QUESTION

Our Board of Trustees is searching for a new director. Our Library has transitioned from a very small building to a modern, significantly larger building. As a public library, the school district we serve has a population of more than 18,000. Our former director did not have a contract. Some trustees have expressed the desire to make a contract with the candidate selected to serve as the next Library Director. We have received conflicting information about how common such contracts are. We don't want to devote time and energy to drawing up a contract that holds no value in the end. How common and necessary is it to have a Library Director contract for a public library serving a community of our size?

 

WNYLRC ATTORNEY'S RESPONSE

Regular readers of "Ask the Lawyer" know one of the cardinal rules is: "Do not reinvent the wheel."  So, before working on this reply, we[1] checked the "NY Library Trustees Handbook (2018),"[2] which has a whole section on hiring library directors.

The Handbook does not reference how "common" having a contract for a library director is, but on page 46, it does emphasize the importance of using a "hire letter" or "memorandum" or "contract" to confirm the hiring terms. 

This is wise counsel.  So, before we build on it to answer the member (and we will!), let's (briefly) talk about the difference between hire letters, memorandums,[3] and contracts.

As most readers likely know, New York is an "at will" employment state.  This means that, barring illegal[4] factors, an employer is free to terminate an employee as needed--and similarly, an employee is free to resign.  Most "hire letters" confirm "at-will" employment.[5]

An "employment contract," on the other hand, puts more bells and whistles on the relationship. It can address a range of things, including the parties' ability to terminate the relationship, and can alter (for a particular employee) the application of an employer's policies.[6]

Typical clauses in employment contracts for library directors are:

  • A confirmation of the job description;
  • A probationary period;
  • A routine evaluation method;
  • An assured period of employment (for instance, a 1-year or 5-year contract);
  • Relocation costs;
  • A recital of specific expectations beyond what is in the job description--for instance, if the director is being employed at the beginning of a strategic plan with expansion objectives, and part of the reason for the hire is a requirement to help keep the expansions on track;
  • A benefit structure that differs from other job titles;
  • A base compensation and bonus structure based on clearly articulated and quantifiable performance metrics;
  • A commitment to a certain amount of budgeted funds and time out of the library for professional development;
  • Tuition or professional development reimbursement;
  • A consequence for early resignation;
  • A list of specific reasons the contract can be terminated early by the board "for cause";
  • A list of specific reasons the contract can be terminated early by the director;
  • A buy-out or other provision in the event of early termination by the employer "without cause";
  • A confidentiality clause;
  • A clause regarding support in the event a lawsuit or legal complaint is directed at the employee[7] as a result of the employee performing their duties (similar to what protects a trustee).

Of course, the above-listed items are just examples.

So, how does a library board know when to use a contract?

There are too many factors to list, but here is a tool for assessing if a contract is the right approach to locking in employment terms between a library and director:

Factor

Comment

Yes

No

1. Is your library seeking the stability of a long-term commitment from its director?

Sometimes, even the promise of a year's service can lend stability...and a term can be as long as five years (or more...but five is a nice start).

 

 

2. Is the library about to undertake an initiative where the specific candidate’s skills and experience are a necessary asset?

For instance, if the library is overhauling its approach to IT over the next 5 years, and the candidate has specific prior experience with that type of project.

 

 

3. Is the search process unusually challenging for your library? (due to geography, etc.)

If every search costs time, money, and (most importantly) impacts services to the community, finding a way to get added stability may be worthwhile not only financially, but for the sake of the library's mission.

 

 

4. Are you more likely to retain a desirable director if you offer the protection of a contract?

The possibility of a contract can be an aid to recruitment.  If the job advertisement sets out the potential for greater stability, it might attract a more qualified candidate pool.

 

 

5. Will being able to tout having a director under contract help during budget and funding initiatives?

This could be a double-edged sword!  If the contract helps with cost containment, it's a benefit.  If it could be portrayed as excessive or unnecessary, it can backfire.

 

 

6. Will the library be channeling extra resources into professional development for the director, and thus want assurance of a return on investment?

This is a consideration where, if done right, the contract creates a win-win (the library director gets the benefit of development, and the library gets stability of an increasingly qualified director).

 

 

7. Will it help employee morale to know there is stability in the director role?

This can be another double-edged sword, depending on the relationship between the director and the other employees.

 

 

8. Will having the director under contract help with union negotiations? [skip if no union]

This may be a neutral factor, but certainly one to consider if there is an employee union.

 

 

9. Does the board want to be able to link compensation to specific objectives in an enforceable way?

A good contract can also serve as a planning tool.

 

 

10. [If director already employed by library] Has the director been successfully employed by the library for a while, but the library seeks greater assurance of retaining them?

 

Converting a successful at-will employee to a contract employee is another way to ensure stability.  If a system of progressive raises or bonuses is used, it can aid retention.

 

 

 

If your library answered "yes" to one or more of the above factors, it might be worth considering using a contract!  This is true even if no other library you know of is doing so (or if they all are).

 

That said, like all things that create obligations, a contract requires CAUTION.  Here are some factors to consider before a library decides to use a contract:

 

Factor

Comment

Yes

No

1. Does the board have what it takes to conduct a search that meets the objectives of the contract?

If the candidate pool is not robust, a contract cannot make things better.

 

 

2. Does the board have the capacity to pay attention to the compliance factors in the contract?

If the board doesn't follow the contract, it is dangerous to have one!

 

 

3. Does your board have the capacity to engage a lawyer to generate a custom contract?

A lawyer will look at the library's unique features, and the objectives of the board, to draft a contract.  The lawyer should also be ready to help the board negotiate.  Ideally, the first draft of the contract should be ready BEFORE the job is posted.

 

 

4. Does the library's financial position allow it to make the financial commitments the contract would create?

This should be confirmed by the Treasurer and the auditor before any offer is made.

 

 

5. Does Civil Service impact the terms of employment?

If yours is a non-association library, check with your local Civil Service rep to make sure the rules for hiring, discipline, promotion, and compensation are all honored in the contract (the lawyer mentioned in #3, above, can do this for you).

 

 

6. Is there anything in the enabling legislation, charter, bylaws, policies, or current Plan of Service that would deter using a contract?

This question is really one for the lawyer drafting the contract, who should review these documents before preparing the draft, but it is worth considering at the starting point of the process.

 

 

If the answer to any of the above questions is "no," a board should consider if additional steps need to be taken before deciding to offer a director an employment contract.  Employment contracts are like houseplants; although they largely just sit there, they need attention from time-to-time.

And that's my answer to the member's question; not based so much on what is "common", but definitely based on what might be "necessary" for a particular library.

Thanks for a great question, and good luck with your search.

BONUS CONTENT

If there are three take-aways I hope this answer conveys, they are:

1) a contract for a library director can be a positive and helpful thing for both parties;

2) before offering or requesting a contract, a board or director should know what they want, and why (and if a contract can fulfill that); and

3) never, never, NEVER use a generic contract from the internet...always have a draft contract reviewed by a lawyer[8] before it is offered.

To help emphasize these three take-aways, here are three limericks:

A pro-active library board

Over its strategy pored

"We seek a director

who has it together

Should a contract be offered?"

 

The board then decided "Why yes,

Our new person must fix quite the mess

So we'll set some terms

That our contract confirms

To address our points of high stress."

 

The right fit was finally found

A lawyer said the contract was sound

So to the future director,

A contract was sent o'er,

And now they are legally bound!

 

Did this trio of limericks skip the part of the process where the parties negotiate back and forth, and the contract is (hopefully) signed?  Yes.

But hey... the top 3 take-aways are in bold.  That's what's important. Please let us know if they are helpful.[9]


 



[1] Who is "we"?  The staff at the law office, and in this case, a call to the director of the council whose member sent in the question.

[3] The term "memorandum" is not a legal term.  If a "memorandum" of hire only confirms that the position is at will, it is at-will.  If the memorandum adds to the rights and/or obligations of the parties, it is a contract.  For this reason, I discourage use of the term "memorandum" to confirm hiring terms.

[4] Like discrimination, retaliation, and contract violation.

[5] These days, they also fulfill state legal requirements to confirm the date of hire, the rate and frequency of compensation, and the identity of the employer. For more on this, see the state's "wage theft" rules explained here: https://dol.ny.gov/system/files/documents/2022/05/p715.pdf.

[6] Most employee handbooks will have language confirming that the board can change the policy at will and nothing in the manual is to be taken as creating a contract; this is to preserve the "at will" arrangement.  Any employment contract should consider how it works with an existing or future employee handbook.

[7] Assurance of such coverage is not needed for most "Directors and Officers" (or "D&O) insurance to cover a director, but considering the extent of D&O coverage is an important annual task for the board.

[8] Who knows about both employment law and libraries.

[9] Feedback can go to info@losapllc.com.

 

Tags: Board of Trustees, Employment, Legal Poems, Library Employment Contracts , Public Libraries

Topic: Image Use By Previous Employers - 06/02/2022
This is an issue that's come up in recent conversation. If an individual who no longer works a...
Posted: Thursday, June 2, 2022 Permalink

MEMBER QUESTION

This is an issue that's come up in recent conversation. If an individual who no longer works at an institution finds that their picture is still being used by said institution, whether in promotional photos or on staff/faculty pages, does that individual have any legal recourse? It seems wrong for an institution to continue to use photos of faculty, staff, or even students who are no longer affiliated with the institution but it seems to promote the idea that they are. Sometimes it could be carelessness, other times it seems like there is an illusion of diversity being promoted. What could someone do if they find that their image/likeness is still being used by their former employer, for whatever reason?

 

WNYLRC ATTORNEY'S RESPONSE

This question needs to be answered on a sliding scale.

Here are three scenarios to show how the scale can slide:

Scenario 1: "Scrapbooking"

A museum makes robust use of social media to connect with its community.  At different events, a staffer or two are expected to take lots of photos, including shots of staff and guest speakers interacting with the community.  Members often comment how much they enjoy the images and connectivity.

Since the Museum got in on the ground floor of social media and the practice started on the Museum's website, some of the content is almost 3 decades years old ("born and aging digital"). At this point, some of the employees in the images have not only simply moved on--they've retired.

No written, signed permission to use the employees' images is obtained.

 

Scenario 2: "Image Crafting"

A library is working to show its commitment to diversity, equity, and inclusion.  The employee in charge of the web site and social media culls through photos of employees and patrons to post selected images on static pages that refer to a DEI commitment; while other use of the website and social media is managed as usual, these pages remain unchanged as stand-alone statements.

No written, signed permission to use the employees' images is obtained.

 

Scenario 3: "Stone Cold Marketing"

An association library is creating a brochure to kick off a capital campaign to build a new library on a donated piece of property.  The donated land is more centrally located in the library's area of service.  To raise funds for the hoped-for building that will serve a new generation of library users, the library asks all the employees and their kids to attend a photo shoot on the new land.  The idea is they will sit on blankets, reading, on the currently-empty lot, and the library's graphic designer will put a semi-transparent rendering of the future building over them, showing the library of the future.

No written, signed permission to use the employees' images (or their kids' images) is obtained. 

 

In New York, the law is pretty straightforward on the unauthorized commercial use of living people; NY Civil Rights Law Section 50 "Right of privacy" says "a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor."

Recently, the law was expanded to restrict the commercial use of the image of deceased "personalities": NY Civil Rights Law Section 50-F 2. a. provides "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision four of this section, shall be liable for any damages sustained by the person or persons injured as a result thereof."[1]

"Ask the Lawyer" has addressed this issue a bit before: see https://www.wnylrc.org/ask-the-lawyer/raqs/255 and https://www.wnylrc.org/ask-the-lawyer/raqs/49, but we haven't focused on solutions to the question posed by the member: If an individual who no longer works at an institution finds that their picture is still being used by said institution, whether in promotional photos or on staff/faculty pages, does that individual have any legal recourse?

This is where our scenarios come in.

If the use is what I've called "scrapbooking" in the first scenario--part of a collection documenting events as they unfolded, and not featured or linked in a way that advertises the institution or asks for money--the law does not have much recourse.   That said, a former employee can always ask for an image to be removed as an act of courtesy, and if there is a compelling reason (safety, emotional well-being, not wanting to be affiliated with the institution any more) an attorney could help the person isolate and make a convincing argument for removal.

As the scale continues to slide, if the use is what I've called "image crafting" (the use referenced by the member in the question), if written permission was not granted, there may be grounds for demanding removal under the law.  A current or former employee who feels strongly about this should consider working with a lawyer, since the first request should accurately set out the basis for the requested removal.

On the final end of the scale, when the use is clearly for "advertising purposes, or for the purposes of trade" (like a posting soliciting a capital donation), written permission should have been obtained, and a former or current employee--unless their job description includes serving as a model or posing for published pictures--has a strong basis to demand removal under the law.

What can a cultural institution do to avoid the risk of unauthorized commercial use of an employee's image?  A few things:

First, unless it is part of the employee's job description, do not require use of the employee’s image on print publications and social media.  If the institution has determined that, for the sake of public relations and service, all public-facing employees will have their picture on the website, it should ensure that due attention to safety and privacy is factored into the requirement.[2]

Second, even when an employee seems "okay" with being featured in a publication (print or online), it is good to get written permission. While not all uses will qualify as "commercial" and thus risk violation of the law, it shows respect and proper attention to employee agency and safety.

Third, if feasible, consider a default position that every employee, unless it is in their job description, has "opted out" for use of employee images on institutional publications.  Then ask who would want to be featured.  For example: "To respect employee privacy, the library does not intentionally use the name and images of employees except to the extent they are listed on the website and in published board materials.  If you would like to be featured in library social media and publications, please alert the Director, so we can obtain a written image release.  This is not a requirement!"

Fourth, if your library or other cultural institution needs to rely on the personality and persona of an employee to the point where use of their name and image in association with the library is part of their job, consider putting that in their job description.  For example, "The [insert title] position is a community-facing position and in addition to routine interaction with the public, will be required to interface with the public via materials published by the [library] from time to time, including use of their name, signature, and recorded images of their likeness and voice."

And fifth, when in doubt, get an image release.

An image release can come in many forms; to be on the safe side, an image release should be custom-written for your institution, and the use it plans to make of authorized images.

That said, here is a sample:

Image Release

NAME, who is at least 18 years of age, consents to the use of their image, name, and likeness, as governed by New York Civil Rights Law 50 for purposes of informing the public about events, opportunities, and initiatives of the XYZ Library, including fundraising initiatives.  As an employee, I understand that such consent is not a requirement of my position, and I may revoke this consent at any time by sending a written request to make no further use of my image under this Image Release. I understand that "revoking consent" means no further use will be made of my image, but that past use will not be removed. Unless revoked by me personally, this release shall be binding on my heirs and cover the institution's use of my "right of personality" as covered by New York Civil Rights Law 50-F.

 

DATE:______________

SIGNATURE:______________________

WITNESS:____________________________

 

Records retention period of this release: PERMANENT.

 

A well-written release can cover you whether you are "scrapbooking", "image crafting", or engaging in "stone cold marketing."

Thank you for a thoughtful question!

 



[1] I won't list them all here, but there are many exceptions to this law for use by artists, journalists, etc.  If you are just learning about Civil Rights Law 50-F in this RAQ, please don't let it stifle your archive, art, or journalism! You can find the list of exceptions here: https://www.nysenate.gov/legislation/laws/CVR/50-F.

[2] I could write a whole chapter on this consideration, but we'll leave it there for now.

 

Tags: Employee Rights, Ethics, Image Rights, Templates, New York Civil Rights Law

Topic: Public Vote for Library Capital Project - 05/18/2022
We are a school district public library planning a capital project. The question is whether or not...
Posted: Wednesday, May 18, 2022 Permalink

MEMBER QUESTION

We are a school district public library planning a capital project. The question is whether or not the project has to be approved by a public vote. We have been given money from our assemblyman towards the cost of the construction of one item in the plan. The remainder of the funds will be from the Friends of the Library, a foundation that is raising money in memory of two people and other private donations. We are not asking for tax dollars for the project.

 

WNYLRC ATTORNEY'S RESPONSE

There are a few scenarios where a capital project, such as a renovation, could start with a vote of the electorate of a school district library.[1]  If the project is subject to a bond, requires a tax levy increase, or is somehow tied to a referendum, the voters' go-ahead might be needed before work[2] can begin.  In addition, if a municipality or district was deeding over a gift of real property, that could require a public vote, as well.

However, in the scenario described by the member, the money is "in the bank" and is not conditioned on obtaining further funds from the taxpayers and no additional real property needs to be purchased or funds need to be levied or raised.

With that, while in library law I make it a rule to "never say never" in this case, I don't see a need for a public vote.  Just follow the rules of procurement![3]

 



[1] Which is how the phrase "public vote" is used in the question.

[2] "Work" has a variety of meanings in this context; it could include hiring an architect, or purchasing real property, or putting an actual shovel in the ground.

[3] As with other major purchases by public libraries, compliance with competitive bidding requirements in capital projects is key, even if the library is using donated funds.  For more on this, visit https://www.osc.state.ny.us/files/local-government/publications/pdf/seekingcompetition.pdf.

 

Tags: Donations, Public Libraries, Taxes, Voting

Topic: Creating adaptive copies of textbooks using text-to-speech - 05/18/2022
My institution subscribes to the "Kurzweil Reading Program", a "Text-to-Speech...
Posted: Wednesday, May 18, 2022 Permalink

MEMBER QUESTION

My institution subscribes to the "Kurzweil Reading Program", a "Text-to-Speech" product for those with reading impairments (dyslexia, English language learners, blind/vision impaired, etc.)

Section 121 indicates these users are "eligible persons" for "fair use", but others, without such disabilities could use the program (like an audiobook in the car!).

We'd be putting TEXTBOOKS up in the program; that fair use violation is what I'm worried about....

Thanks!

 

WNYLRC ATTORNEY'S RESPONSE

This question reflects the level of savvy "Ask the Lawyer" readers bring to their submissions.  The member submitting the question has already set out (in a manner much more succinct than I usually achieve) the interplay of:

  • Owner's rights (Copyright Act Section 106),
  • Adaptive copies made under "fair use" (Copyright Act Section 107), and
  • Copies made for purposes of accommodations for disability that impacts the ability to read (Copyright Act Section 121).

I do have one quibble with the member's phrasing, though, and it is important to this particular issue: Section 121, while it allows copies otherwise barred, does not create a "fair use" right to make a copy.[1]  Rather, the creation of an adaptive copy under Section 121 is a 100% exception to infringement made under highly precise circumstances.

What are those "highly precise circumstances"?

First, as the member writes, the end-user of the copy must be "eligible"--meaning they have a disability that impacts the ability to read (for the three "ways" for a user to be "eligible", see sub-section (d)(3)(A)-(C) of the law, below). 

Second, the copies must:

"(A) not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;

(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication."

And third, the maker of the copies must be an "authorized entity" (which is defined in the statute; see the definition, below[2]).

This precise formula, and the right it creates, is why "fair use" is not a part of the issue at hand (adaptive copies specifically for reading-based disabilities).  None of the above-listed requirements are required to claim "fair use" under Section 107[3]. In addition, to make a Section 121 copy, there is no four-factor "balancing" test; rather, a Section 121 use is "inherently noninfringing."[4]

The above-listed Section 121 requirements to include copyright notices are also the key to addressing the member's concern: enforcement.

When an "authorized entity" is creating Section 121-based copies for "eligible" people, the institution must put copyright notices on each copy. This sets up the institution--as either an employer or alma mater--to restrict non-eligible employees and students from using them for non-Section 121 purposes.  Further, in addition to the required notices, the institution can add additional warnings, and if needed, restrict use through technological controls.[5]

Now, how much should an institution police this?  Currently, there is no case law that turns on an alleged infringement that was committed via unauthorized use of a duly made Section 121 copy.  That said, content owners are always looking for new ways to maximize revenues, so taking care to properly designate Section 121-based copies as required by law, and using policy and posted notices to reinforce those restrictions, is a wise idea.

Thank you for a well-informed and nuanced question!

HERE IS SECTION 121 OF THE COPYRIGHT ACT:

(a) Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work or of a previously published musical work that has been fixed in the form of text or notation if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons.

(b)

(1) Copies or phonorecords to which this section applies shall—

(A) not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;

(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication.

(2) The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.

(c) Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if—

(1) the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency;

(2) the publisher had the right to publish such print instructional materials in print formats; and

(3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in accessible formats.

(d) For purposes of this section, the term—

(1) “accessible format” means an alternative manner or form that gives an eligible person access to the work when the copy or phonorecord in the accessible format is used exclusively by the eligible person to permit him or her to have access as feasibly and comfortably as a person without such disability as described in paragraph (3);

(2) “authorized entity” means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;

(3) “eligible person” means an individual who, regardless of any other disability—

(A) is blind;

(B) has a visual impairment or perceptual or reading disability that cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or

(C) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading; and

(4) “print instructional materials” has the meaning given under section 674(e)(3)(C) of the Individuals with Disabilities Education Act.

(Added Pub. L. 104–197, title III, §â€¯316(a), Sept. 16, 1996, 110 Stat. 2416; amended Pub. L. 106–379, §â€¯3(b), Oct. 27, 2000, 114 Stat. 1445; Pub. L. 107–273, div. C, title III, §â€¯13210(3)(A), Nov. 2, 2002, 116 Stat. 1909; Pub. L. 108–446, title III, §â€¯306, Dec. 3, 2004, 118 Stat. 2807; Pub. L. 115–261, §â€¯2(a)(1), Oct. 9, 2018, 132 Stat. 3667.)



[1] I'm quibbling, but I want to take this footnote to state that including a "fair use" cite in the question is very reasonable, because fair use is often cited as yet another reason to make adaptive copies that go beyond copies authorized by Section 121. Since the copies in this case are without question for those "eligible" under Section 121 (those with reading-impacting disabilities), we're going to sideline fair use at Section 107 for this question, but it very much is a part of the toolbox of creating adaptive works for non-Section 121-eligible disabilities.

[2] There is controversy, but no definitive authority, on if all not-for-profit educational institutions meet the criteria.  Academic publishers have taken a position that it only applies to institutions for the blind, not just any old school or college.  However, an uncontradicted conclusion in the October 10, 2012 district court decision in Authors Guild V. Hathitrust, 902 F. Supp, 2d 445 (2012) opines that because of their mandate to provide accessibility under the ADA, such institutions all are "authorized entities" under Section 121.  Until I read otherwise, my guidance errs on the side of accessibility (see https://www.wnylrc.org/ask-the-lawyer/raqs/246).

[3] In fact, having to abide by this type of requirement could undercut some of the more vital applications of fair use, such as parody or innovation.

[5] I am slightly wary of a system that would force a student to "register" with the library as needing ADA accommodations, but depending on how access is granted, some type of additional log-in or control might be wise.  At higher ed institutions, students and employees arrange accommodation per a policy, and accommodations are generally confirmed in writing, so signing up for access to adaptive copies could be the way to go.  But this will be driven by technology, and care must be taken to not put up any additional hurdles to access.  If any readers out there have solved this issue at your institution, I'd appreciate hearing about it!  Please send that to info@losapllc.com.

 

Tags: Accessibility, Accomodations, ADA, Copyright, Fair Use, Textbooks

Topic: Are scanned electronic signatures legitimate? - 05/04/2022
I am the Board Secretary. Is an electronic signature (a real scanned one) OK for approved board ...
Posted: Wednesday, May 4, 2022 Permalink

MEMBER QUESTION

I am the Board Secretary.

Is an electronic signature (a real scanned one) OK for approved board meeting minutes that will go up for the public on the web site?

In our case, a paper copy of the minutes that is signed for real will also go into the archives of the library...which leads to the broader question of when such scanned electronic signatures can be used or not?

Many thanks!

 

WNYLRC ATTORNEY'S RESPONSE

As usual, a regional council member knocks it out of the park with an informed and thoughtful combination of questions.

Here are the answers:

Question 1: "Is an electronic signature (a real scanned one) OK for approved board meeting minutes that will go up for the public on the web site?"

Answer:  YES...unless a library's bylaws or policies state otherwise.

Why is that?

Electronic signatures are permissible in New York State per the "NYS Electronic Signatures and Records Act" ("ESRA").

Because of ESRA, in NY, "the use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand." [1]

So... what is an "electronic signature?" ESRA defines it as "an electronic sound, symbol or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record".[2] Of particular importance is the phrase "executed and adopted by a person with the intent to sign the record."

Case law has found that "it is up to the signor to make some representation of that intent".[3]  What can show this "intent?"  Among other things, having a routine practice of using a scanned signature (as the question puts it, "a real one"), and a routine of using that to formally to attest to a finalized copy of the minutes.

All that said, I have to unpack this question a bit, because after describing the routine practice of using a scanned signature with intent to signify an actual signature, the member then goes on to add: "...a paper copy of the minutes that is signed for real will also go into the archives of the library." [emphasis added]

I don't see any true bar to having two versions of a signed copy of the minutes, but at best, this practice it is a waste of time and energy, since by law, the use of the electronic signature has already created a document that is sufficient.  Basically...there is no need to create one with a "real" (or as case law puts it, "wet") signature, because the document has already been signed.

Which brings us to...

Question 2: In our case, a paper copy of the minutes that is signed for real will also go into the archives of the library...which leads to the broader question of when such scanned electronic signatures can be used or not?

Because of what I just said at the end of the answer to Question 1, I would advise against creating and archiving a copy that is different from the posted version.  While the scenario that is described--not altering the substantive content of the minutes at all, but authenticating them with a different form of a valid signature--does not pose any immediate issues, if and when those minutes would ever be needed to be used in litigation, it could at the very least pose a complication, since effectively two different authenticated versions have been created.

This aspect of the member’s question is so important, and I think it is worth taking a look at the actual law regarding minutes, as set out in section 106 of the Open Meetings Law:

§ 106. Minutes

1. Minutes shall be taken at all open meetings of a public body which shall consist of a record or summary of all motions, proposals, resolutions and any other matter formally voted upon and the vote thereon.

2. Minutes shall be taken at executive sessions of any action that is taken by formal vote which shall consist of a record or summary of the final determination of such action, and the date and vote thereon; provided, however, that such summary need not include any matter which is not required to be made public by the freedom of information law as added by article six of this chapter.

3. Minutes of meetings of all public bodies shall be available to the public in accordance with the provisions of the freedom of information law within two weeks from the date of such meeting except that minutes taken pursuant to subdivision two of this section shall be available to the public within one week from the date of the executive session. If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such minutes shall be posted on the website within two weeks from the date of such meeting except that minutes taken pursuant to subdivision two of this section shall be available to the public within one week from the date of the executive session. For purposes of this subdivision unabridged video recordings or unabridged audio recordings or unabridged written transcripts may be deemed to be meeting minutes. Nothing in this section shall require the creation of minutes if the public body would not otherwise take them.

The use of an electronic signature greatly facilitates the ability to abide by the requirement of subsection 3, which requires the posting of minutes (or for minutes not yet approved, "draft" minutes).

So, in summary: there is no need to create two versions of the minutes if the first version was properly e-signed, and in fact, while not illegal, creating two verified versions risks confusion just at the moment when minutes are most critical: FOIL request, litigation, or other intense scrutiny of the public record.[4]

The recent revisions and temporary modification of the Open Meetings Law (which all chartered libraries must follow, with a few modifications[5]), and the ongoing application of the Freedom of Information Law to certain public library records, are inspiring many nuanced questions like these.  The Education Law and the NY Not-for-Profit Corporation Law,[6] which define the powers of library trustees, also impact this issue...but as you see, sub-section 304(2) of the State Technology Law is the star player[7] today.

Thank you for a thoughtful set of questions! 

 

Graphic depicting a sword illustration in black with white background. (my new e-signature symbol)

 



[1] State Technology Law § 304(2).

[2] State Technology Law § 302(3).   And yes, you read that right.  If you want to adopt a signature sound, like a bell chime, or a special symbol (a book emoji?) to signify a Secretary's affirmation of the minutes, have at it!

[3] See CitiBank v. N.A. Navarez, 73 Misc. 3d 709 *; 155 N.Y.S.3d 686 **; 2021 N.Y. Misc. LEXIS 5138 ***; 2021 NY Slip Op 21271 ****; 2021 WL 4736807

[4] Just to highlight an important distinction: There will be times when a board Secretary needs to create "certified" copies of board resolutions or other documents.  The rules for signature on such documents may vary, especially if they need to be notarized.  So don't throw away all your pens just yet!

[6] Both of which I searched to ensure there was no overlay regarding minutes taken by public and association libraries. 

[7] The "Electronic Signatures in Global and National Commerce Act" ("E-Sign Act") also provides a general rule of validity for electronic records and signatures for transactions in or affecting interstate or foreign commerce, but case law in NY cites to the State Technology Law.
 

 

Tags: Board of Trustees, Open Meetings Law

Topic: Open Meetings Law 2022 Library Board Chart and Checklist - 05/04/2022
"Ask the Lawyer" got two questions about the April 9, 2022 changes to the Open Meetings ...
Posted: Wednesday, May 4, 2022 Permalink

MEMBER QUESTION

"Ask the Lawyer" got two questions about the April 9, 2022 changes to the Open Meetings Law ("OML"), which will enable library boards to more easily meet via videoconferencing.  The questions asked for sample resolution language to enable a board to meet via videoconference, and compliance checklists to make sure a board is getting all the new details right.

 

WNYLRC ATTORNEY'S RESPONSE

To answer these questions, we've created an "Open Meetings Law 2022 Library Board Chart and Checklist" that sets out:

  • The Education Law and OML's basic public access requirements for library trustee meetings;
  • The OML's recent changes regarding meeting materials;
  • The OML's new option for videoconferencing; and
  • Old and new requirements for trustee meeting notices.

Below that are the requested sample resolutions and policies.[1]

Open Meetings Law 2022 Library Board Chart and Checklist

What to do (requirements, tips, and hacks)

Why the board is doing it

How to do it

Did you do it?

Requirement: Your board must meet "at least quarterly."

Because Section 260(5) of New York’s Education Law requires it.

 

Your board must "fix" the "day and hour" of the meeting; if the meeting is known at least 2 weeks in advance, the notice must go out at least one week in advance.

 

Requirement: Your library's meetings must be "open to the public."

 

Because Section 260-a of New York’s Education Law requires it.

Follow the requirements of Article 7 of the NY Public Officers Law, aka, the "OML" (more on that in the rows below).

 

Requirement:  Your library must notify the public and the news media at least one week in advance of the time and place (including virtual place) of a meeting scheduled at least two weeks in advance.

 

This timing for notice is a bit different from the timing in the OML; that is because Section 260-a of New York's Education Law modifies the notice requirements for meetings (to be a bit kinder to libraries).

The law doesn't require a specific medium, but the notice should be in writing.  The new requirements include posting the means to attend via videoconference (for more on that, and for a sample notice, see below).

 

Requirement/Hack: If your library is in a city of "one million or more," your committee meetings should also be open and noticed.

Because Section 260-a of New York’s Education Law specifies that library trustee committee meetings be open in cities with that population.

If your board serves a library serving a city with a population of one million or more (in other words, if you are in NYC), treat your committee meetings like board meetings.

 

Hack: Your board can create an "Executive Committee" to transact business between meetings.

Because Education Law 226(2) allows your library to do this.

Amend the bylaws to create an Executive Committee "...of not less than five, who, in intervals between meetings of the trustees, may transact such business of the corporation as the trustees may authorize, except to...make removals from office."

 

Requirements: Make available any "proposed resolution, law, rule, regulation, policy or any amendment thereto", that is scheduled to be the subject of discussion by the board at the meeting, at least 24-hours prior to the meeting.

Because Section 103-e of the “Open Meetings Law" requires your library to do this.

Have the board packet available either in hard copy or upon request. 

 

NOTE: If your library regularly uses its website, the law also requires that the materials be posted on the website.

 

Hack: Adopt rules about the location of equipment and personnel used to photograph, broadcast, webcast, or otherwise record an open meeting.

OML 103(2) allows a library (or a public body that follows the OML) to do this so such broadcast is not disruptive (or a tripping hazard).

If your library adopts such a policy, the law requires that the rules "be conspicuously posted during meetings and written copies shall be provided upon request to those in attendance."

 

A sample policy is below.  (Before adopting such a policy, consider your library's unique space and needs.)

 

Option: enable trustees to attend via videoconference, while the meeting has only one physical location.

Your board will do this if they want trustees to be able to attend even if caregiving, disability, health, or other compelling reasons prohibit attending in person.

Per the legislation signed by the Governor on April 9, 2022, the way to exercise this option is to:

 

1.  Adopt procedures consistent with the new law;

 

2.  Pass a resolution to authorize meeting via videoconference.

 

A generic bit of advice: before voting on a resolution to authorize meeting via videoconference, the board of trustees should consider whether the additional technical and notice requirements are both desirable and feasible.

For example: the new law requires that any meeting held via videoconference under this new provision must be archived on the library's website for five years. Does your library have that capacity?

For another example: the new law requires that any meeting held via videoconference and archived in this manner must be "transcribed upon request." Does your library have the capacity to transcribe sometimes lengthy meetings upon request?

And as a final example: the new law requires that if the agenda includes a public comment period, those attending via videoconference must be able to comment and participate just as those physically attending. Does your library have the technical capacity to enable that?

None of these examples is a deterrent to videoconferencing, so long as the library has the budget and technical capability to honor the requirements. Since this could have an impact on budget, assessing that capability is critical before deciding to meet this way.

TEMPLATE resolution

(Regarding rules about the location of equipment and personnel used to photograph, broadcast, webcast, or otherwise record a board meeting)

WHEREAS the board of the ABC library recognizes the requirement of the NY State Open Meetings Law to allow the public to photograph, broadcast, and webcast its open public meetings; and

WHEREAS, Section 103(2) of the Open Meetings Law allows public bodies to adopt rules about the location of equipment and personnel used to photograph broadcast webcast or otherwise record a public meeting;

BE IT RESOLVED that the board of trustees of the ABC library adopts the attached rules per Section 103(2) of the Open Meetings Law; and

BE IT FURTHER RESOLVED that as required by law, such rules shall be posted at the location of each meeting and included in the agenda posted at least 24 hours in advance of the meeting so the public attending can have notice of and abide by such rules.

[SAMPLE RULES]

Consistent with the requirements of the Open Meetings Law, attendees at open public meetings of the board of trustees are allowed to photograph, broadcast, webcast and otherwise record those portions of the meeting not in executive session.

To ensure such authorized activity does not disrupt the smooth and safe operation of a trustee meeting, and consistent with Section 103-a of the Open Meetings Law, the following "Rules" shall be posted at the location of each meeting and included on the posted agenda:

  • No extension cords or other potential tripping hazards may be set up;
  • No flash photography or additional lighting may be used;
  • No recording instrument shall be closer than 3 feet of a meeting participant, without that person's express consent;
  • All equipment should be silent enough to not cause a disruption;
  • Equipment must not block aisles or exit and may not impede the view of other attendees;
  • [INSERT]

The privilege to record in this manner at the library is limited to open meetings of the board.

When enforcing this rule with regards to the manner of recording, the ABC library board of trustees shall ensure that the First Amendment of the United States Constitution, and Article I, Section 8 of the New York constitution are honored.

Sample resolution to authorize videoconferencing and adopt policies

WHEREAS on April 9th, 2022, the governor of the state of New York signed into effect chapter 59 of the laws of 2022, in part amending the Open Meetings Law to enable public bodies to meet, under certain circumstances, via videoconference; and

WHEREAS, the board of the ABC Library has duly considered the benefit of this law to its routine operations, and determined that meeting via videoconferencing per the Open Meetings Law with further the operations and mission of the library;

BE IT RESOLVED that consistent with its bylaws and Charter, the board of trustees hereby authorizes the use of videoconferencing for its meetings; and

BE IT FURTHER RESOLVED that the board of trustees hereby adopts the attached written procedure governing member and public attendance at trustee meetings, and confirms each element of that written procedure in this resolution; and

BE IT FURTHER RESOLVED that members of the board of trustees are required to be physically present at any duly noticed meeting unless such member is unable to be physically present due to extraordinary circumstances (including disability, illness, caregiving responsibilities, or any other significant or unexpected factor or event which precludes the member's physical attendance at such meeting); and

BE IT FURTHER RESOLVED that except in the case of executive sessions conducted pursuant to section one hundred five of the Open Meetings Law, and consistent with the requirements of the Not-for-Profit Corporation  law, the trustees shall ensure that members of the public body can be heard, seen and identified, while the  meeting is being conducted, including  but not limited to any motions, proposals, resolutions, and any other matter formally discussed or voted upon; and

BE IT FURTHER RESOLVED that the minutes of the meetings involving videoconferencing shall include which, if any, members participated remotely and shall be available to the public pursuant to section one hundred six of the Open Meetings Law; and

BE IT FURTHER RESOLVED that if videoconferencing is used to conduct a meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, where the public can view and/or participate in such meeting, where required documents and records will be posted or available, and identify the physical location for the meeting where the public can attend; and

BE IT FURTHER RESOLVED that the board of trustees shall provide that each meeting conducted using videoconferencing shall be recorded and such recordings posted or linked

on the library's website within five business days following the meeting, and shall remain so available for a minimum of five years thereafter, and such recordings shall be transcribed upon request; and

BE IT FURTHER RESOLVED if videoconferencing is used to conduct a meeting, the library shall provide the opportunity for members of the public to view such meeting via video, and to participate in proceedings via videoconference in real time where public comment or participation is authorized and shall ensure that videoconferencing authorizes the same public participation or testimony as in person participation or testimony; and

BE IT FURTHER RESOLVED that for so long as the board of trustees elects to utilize videoconferencing to conduct its meetings, the library will maintain an official website; and

BE IT FURTHER RESOLVED that, consistent with the library’s mission to serve its community, the trustees' use of videoconferencing shall utilize technology to permit access by members of the public with disabilities consistent with the 1990 Americans with Disabilities Act (ADA).

Adopted this ___ day of _____, 2022.

Yay:

Nay:

Abstain:

 

TEMPLATE written procedure

governing member and public attendance at trustee meetings

1.         Members of the board of trustees are required to be physically present at any duly noticed meeting unless such member is unable to be physically present due to extraordinary circumstances (including disability, illness, caregiving responsibilities, or any other significant or unexpected factor or event which precludes the member's physical attendance at such meeting).

2.         Except in the case of executive sessions conducted pursuant to section one hundred five of the Open Meetings Law, and consistent with the requirements of the Not-for-Profit Corporation law, the trustees shall ensure that members of the public body can be heard, seen and identified, while the meeting is being conducted, including but not limited to any motions, proposals, resolutions, and any other matter formally discussed or voted upon.

3.         Minutes of the board meetings involving videoconferencing shall include which, if any, members participated remotely and shall be available to the public pursuant to section one hundred six of the Open Meetings Law.

4.         If videoconferencing is used to conduct a board of trustees meeting, the public notice for the meeting shall inform the public that videoconferencing will be used, where the public can view and/or participate in such meeting, where required documents and records will be posted or available, and identify the physical location for the meeting where the public can attend.

5.         The board of trustees shall provide that each meeting conducted using videoconferencing shall be recorded and such recordings posted or linked on the library's website within five business days following the meeting, and shall remain so available for a minimum of five years thereafter, and such recordings shall be transcribed upon request.

6.         If videoconferencing is used to conduct a meeting, the library shall provide the opportunity for members of the public to view such meeting via video, and to participate in proceedings via videoconference in real time where public comment or participation is authorized and shall ensure that videoconferencing authorizes the same public participation or testimony as in person participation or testimony.

7.         For so long as the board of trustees elects to utilize videoconferencing to conduct its meetings, the library will maintain an official website, which is INSERT ADDRESS.

8.         Consistent with the Library's mission to serve its community, the trustees' use of videoconferencing shall utilize technology to permit access by members of the public with disabilities consistent with the 1990 Americans with Disabilities Act (ADA).

 

SAMPLE notice of meeting to use videoconferencing

The board of trustees of the ABC Library will hold a meeting at

DAY

HOUR

at

[AT LEAST ONE] PHYSICAL LOCATION

Per the policy of the board, videoconferencing will be used to enable attendance of trustees and public access to the open meeting.

The public can view and/or participate in the meeting by [INSERT].

[If public comment or participation is authorized and noted on the agenda] Those attending via videoconference may engage in the same public participation or testimony as in person participation or testimony by INSERT.

Document and records to be reviewed at that meeting will be posted at INSERT and available by request at INSERT.

The meeting shall be recorded, and the recording shall be posted [or linked] on the library's website (INSERT ADDRESS) within five business days following the meeting, and shall remain so available for a minimum of five years thereafter.   The recording shall be transcribed upon request.

Consistent with the Library's mission to serve its community, the trustees' use of videoconferencing shall utilize technology to permit access by members of the public with disabilities consistent with the 1990 Americans with Disabilities Act (ADA).   Questions regarding accommodations can be directed to INSERT and INSERT.[2]

[Insert rules of broadcasting meeting if applicable]

 



[1] As with all things template, whenever possible, review this guidance with your library's attorney.

[2] To enhance accessibility, accommodation requests should be able to be made through at least two different mediums; for example, a number to call and via e-mail.

 

Tags: Accessibility, Board of Trustees, Open Meetings Law, Templates

Topic: Updating meeting room policies - 04/27/2022
My library (municipal public library) is working on updating the meeting room policy for a number ...
Posted: Wednesday, April 27, 2022 Permalink

MEMBER QUESTION

My library (municipal public library) is working on updating the meeting room policy for a number of reasons. Two major pieces of focus are what types of groups/organizations are able to request use of the meeting rooms. The other piece is requiring all meetings to be open to the public.

Currently the policy indicates that the primary use of meeting rooms are for library-sponsored activities. Any remaining time may be scheduled by nonprofit organizations for educational, cultural, or civic activities on a first-come basis. Use of this room does not constitute endorsement by the Library and must not interfere with or be disruptive to other library users.

Questions #1 - Is there a legal requirement for public libraries to limit to non-profit organizations? If not, what is the basis for limitations?

I am leaning towards shifting the mindset from limiting meeting room use to the above mentioned non-profit organizations (education, civic, cultural, etc.) and to advance public libraries in supporting local businesses and economic development in our communities.

Question #2 - Is it a legal requirement for all meetings to be open to the public?

Question #3 - Is there any benefit for the different type of meeting rooms to have different policies? Why should Large Study Rooms, Conference Rooms, and/or Meeting Rooms policies differ?

 

WNYLRC ATTORNEY'S RESPONSE

Before I answer this thoughtful array of questions, it is important to establish that aside from law, regulation, and library-specific policy, use of and access to space at public and association libraries can be governed by:

  • Owner-imposed conditions[1]
  • Lease agreements[2]
  • Deed and zoning restrictions[3]
  • Donor conditions[4]
  • Grant agreements[5]
  • Collaboration/affiliation terms[6]

So, before a reader tries to use this answer to tackle issues like those posed by the member, assess if any of those factors are at play in your library.

Okay.  Now, IF NO OTHER CONTRACTUAL OR OTHER RESTRICTIONS IMPACT YOUR LIBRARY, OR A SPACE IN YOUR LIBRARY, here we go:

Questions #1 - Is there a legal requirement for public libraries to limit to non-profit organizations? If not, what is the basis for limitations?

No, there is no legal requirement for public libraries to limit access to space to non-profit organizations.

However, there IS a requirement for any "charitable" entity[7] in New York to not allow any of its assets to “inure” to any one individual, while non-association libraries have to follow an even stricter rule against "aid" to individual people or businesses as set by the NY Constitution (this is why a town library can't use funds to throw a big "bon voyage" party to celebrate a retiring employee, but its not-for-profit "Friends" can).

To avoid tripping over this bar on "inurement" and "aid," many libraries adopted a rule that only charitable entities can use their rooms.[8]  This, however, goes beyond what is required.  Rooms and space can be used by any type of person or organization...but there needs to be a rational basis related to library services and the library's plan of service, and not creating a prohibited benefit, when allowing that access.

How is that done? Examples include:

  • Have a rental policy and use agreement for meeting rooms, with the fee waived for tax-exempt entities, and rental fees channeled back into maintenance of the space[9];
  • Based on the assessed needs of the community, allow card-holding members of the library to reserve and "check out" multi-purpose space on an hourly basis;
  • Create purpose-specific space (telehealth booth, darkroom, soundproof room, etc.) that are "checked out" like other collection assets.

Question #2 - Is it a legal requirement for all meetings to be open to the public?

No, there is no legal requirement for meetings in rented or "borrowed" space in a public library to be open to the public.  However, the library must ensure that renters and borrowers do not restrict access on the basis of any protected category of identity (age, religion, gender, sexual orientation, etc.), or they risk a discrimination claim.

Here is an example of what I mean by "risk a discrimination claim":  If I want to rent a 50-person capacity room at my public library to host a "Women In the Law" monthly meeting, and I publicly advertise the event "For Women Only,"[10] and I let the first 49 people whom I think fit the bill in at the door (while rejecting others), I am creating an exclusionary event that risks a discrimination claim...as well as a PR issue that no library wants to be a part of. [11] In other words: DO NOT DO THIS.

Contrast that with this scenario: I rent the library's 50-person capacity room to stage an event open to the public (no identity-based restrictions), but the topic of the event is a Lincoln-Douglas format "Women Shouldn't Be Lawyers: A Debate."[12] In this example, I risk a similar PR nightmare...but because access to the event is not restricted by a protected category, I do not risk a discrimination complaint based on access.

Question #3 - Is there any benefit for the different type of meeting rooms to have different policies? Why should Large Study Rooms, Conference Rooms, and/or Meeting Rooms policies differ?

Yes, there is a benefit: purpose-built rooms, with purpose-built policies based on identified needs in a library's area of service, justify how the library decides who gets access.  For example, a room with no windows might be designated as the preferred space for a support group for survivor's domestic violence and others that need "discrete" space.  A room with the best wiring might be the space designated for groups gathering to use technology (such as an e-sports club).  A room with the best ventilation might be designated for crafts and chair yoga.  And even though not required, a room could be reserved for only not-for-profit community organizations.

With this approach, a library could have a policy applicable to all rooms (requiring that all attendees follow the library's Code of Conduct), and use room-specific overlays to further set the fair and equally applied terms for access.  This gives the library the flexibility to set different use privileges, while not seeming arbitrary.

Which brings me to the member's comment:

I am leaning towards shifting the mindset from limiting meeting room use to ...non-profit organizations (education, civic, cultural, etc.) and to advance public libraries in supporting local businesses and economic development in our communities.

This is the tricky part.  Remember the bar on "inurement" and "aid"?   It is possible to "support local businesses and economic development" without the benefits accruing specifically to one person--but a library has to be careful.

For instance, say the library wanted to have an "entrepreneur in residence" every week, providing space to new business owners to showcase their products/services, and their story.  

A risky example of this would be: the library provides space in its "Entrepreneur Room," and the entrepreneur charges money for services offered on site for the week.   In that scenario, the library is basically providing free space to a for-profit business, which as we discussed above, is a no-go.

A "go-go" version of this would be: based on a commitment in their plan of service, the library uses data to assess under-served or under-represented members or geographic areas of the business community.

The library then announces to the public that a business owner in the identified zone will be the "Entrepreneur in Residence" in the "Entrepreneur Room" throughout the week, to answer questions about being a business owner in their community.  The library will feature information about the business, as well as its industry.

During their week in the library, the entrepreneur makes connections, showcases their product/service, and gains valuable connections and potential clients...but makes no sales on-site.  However, while sharing their experience with other members of the community, they do get a boost to their business...which the library knows, because it collects follow-up data to show how the program has impacted the local business environment.

This is just one example; there are many ways to do this...and with proper planning, it won't cause issues with either a library's charitable status, or with the New York State Constitution.

Meeting room issues are tough, but a library that bases meeting room[13] access on the commitments in its plan of service, develops space-use programs based on data-derived community needs, and takes care to avoid "inurement" and "aid," can navigate these issues.  Space-specific policies are not required for that, but they can help.

From the care taken by the member in writing this question, it is plain to see: it's worth it.

Thank you for a good set of questions.

 



[1] Many libraries occupy space they don't own, without a lease.  Aside from many other risks, this can lead to the owner imposing restrictions on space without warning.

[2] A common space restriction in a lease for library space will be a bar on the space being used for anything other than "purposes of conducting library business."

[3] "Deed and zoning restriction" is a catch-all for terms the overall property (the building and land) could be subject to. 

[4] For instance, if a donor leaves money to the library to create the "Needlework Room", and the library accepts the money that comes with the restriction, the room could be confined to books about needlework and related activities.

[5] Just like with donor restrictions, a grant can condition an award of money or assets on specific terms that govern a space.

[6] This is another catch-all: for example, if the library has always housed its Town archives in a room, but the terms were never formalized, is there enough in the record to make this a "restriction?"

[7] All chartered libraries in New York are considered "charitable," per State Education Law 216-a.

[8] Confession: I don't actually know for sure if this is the reason, but it's the only reason I can think of.

[9] If your library rents rooms, check with your accountant to ensure the income won't be considered as derived from "unrelated business activity."

[10] For those of you paying attention to these types of issues, you know this example is just the tip of the iceberg.

[11] If I rent the room for a private event for which I happen to personally invite only female lawyers, but I never publicly articulate a gender-based restriction, I could lessen the chance of a claim of discrimination, but in theory, the risk is still there.

[12] To this notion, I say: Belva Lockwood.

[13] All of this can apply to outdoor space, too.

 

Tags: Meeting Room Policy, Policy, Public Libraries

Topic: Posting working documents for open meetings - 04/25/2022
I just read your excellent answer about posting documents per the OML changes in advance of meetin...
Posted: Monday, April 25, 2022 Permalink

MEMBER QUESTION

I just read your excellent answer about posting documents per the OML changes in advance of meetings.

I think you are right on target.

My concern is to ask you to add to your questions for the COOG the following: Do working documents being shaped and edited at committee meetings need to be posted in advance of the committee meeting?

The Committee meeting is an open meeting. Let's say the policy committee is going to discuss a draft revision to a policy. Must we really post the draft revision prior to the meeting? The way our board works, the draft is likely revised several times over three or four policy committee meetings before it becomes part of a board packet for a full board meeting. My "gut" tells me that complying at that level would be overkill. A similar situation would be draft versions of a budget.

I think the public has an opportunity to see the documents in question before they are finalized at a full board meeting, so my instinct is that working documents would not need to be posted in advance. But that's not what a strict reading of the law itself and your posting tells me.

So, I am torn and would love clarification.

Lastly, I just want to compliment you on this service that you are providing. it is really great.


 

 

WNYLRC ATTORNEY'S RESPONSE

Thank you very much for your kind words!  And for submitting this question.

For "Ask the Lawyer" readers who don't follow the State's "Open Meetings Law" (the “OML”) with regularity, the new rules that the member is referring to are the revised Section 103(e) of the OML.  The "Ask the Lawyer" that the member refers to is "Availability of Open Meeting Documents".

In that RAQ, we discussed the extent of a library board’s new obligation to ensure that certain materials used during open portions of trustee meetings be made available at least 24 hours in advance...and how, if a library routinely uses its website, those advance copies should be posted on it.

Given the new requirements, Tim's question is a practical one: "Do working documents being shaped and edited at committee meetings need to be posted in advance of the committee meeting?"  In other words, if the document is in flux, and subject to change even during the meeting, must a copy be provided in advance?

In considering the answer, I of course checked the law and the latest commentary from New York's "Committee on Open Government" (the "COOG"), which is the arbiter of all things OML. However, since Tim mentioned checking in with his gut, I also checked in with mine.

To do that, I pictured myself as the attendee at a meeting of my city's[1] common council. I envisioned them discussing a policy on the agenda: the formation of a police advisory committee.[2] I then pictured myself checking the meeting packet that was put on the City's web site 24 hours prior to the public meeting, to see if a copy of the policy is in the packet.

Here are five scenarios of what happens:

Scenario 1: I check the packet: there it is! As the committee members discuss the proposed policy, I am able to meaningfully link their commentary to the written document.

Scenario 2: I check the packet: there it is! But then, the Chair of the meeting says "Before we begin, I would like to add that this morning I received a proposed new version of the policy for us to consider.  The new version adds a paragraph to the version that is in your packet.  That version was emailed to council members this morning." As the committee members begin to discuss the proposed policy, and the new paragraph, I am able to meaningfully link their commentary to the written document--except for the new paragraph.

Scenario 3: I check the packet: there it is! But then, the Chair of the meeting says "Before we begin, I would like to add that this morning I received a proposed new version of the policy for us to consider.  The new version adds a paragraph to the version that is in your packet.  That version was emailed to council members this morning, and I am going to ask the clerk to place a version in the video feed [in a way public attendees can see] as a courtesy." As the committee members begin to discuss the proposed policy, and the new paragraph, I am able to meaningfully link their commentary to the written document--even the new paragraph.

Scenario 4: I check the packet: there it is!  Twice?  Hmmm.  As the agenda item is called, the Chair of the meeting says "Before we begin, I would like to clarify that we have two versions in the meeting packet because two versions have been submitted for review and consideration at this meeting." As the committee members begin to discuss the proposed policy, and the two versions, I am able to meaningfully hear their commentary on the precise wording as they discuss intent, concerns, and possible revisions, although I have to toggle between versions to keep up.

Scenario 5: I check the packet: it's NOT there!  When the committee reaches that agenda item, the Chair of the meeting says "Because this policy is under review in various offices, who may submit changes before our next meeting, and there are a few versions under discussion, we haven't posted any version yet." As the committee members begin to discuss the proposed policy, and the different wording, I am unable to meaningfully connect their commentary to the writing they have based it on.

Checking in with my gut: in either "Scenario 2" or "Scenario 5," I might be irritated to the point where my gut might review the law to see--has the council followed the law?

And when my gut checks with the law, I see this commentary from the COOG[3]:

Image depicting screenshot from Committee on Open Government, titled Disclosure of Records Scheduled for Discussion at Open Meetings. Text reads: Shoshanah V. Bewlay, Executive Director, Committee on Open Government, Kristin A. O'Neill, Assistant Director, Committee on Open Government. Since 2012, Section 103(e) of the Open Meetings Law has required public bodies or agencies that host public bodies to make available to the public, within reasonable limitations, the records scheduled to be discussed during open meetings prior to the meetings. Until recently, the Open Meetings Law did not address how far in advance of a meeting such records were required to be made available. Effective October 19, 2021, Chapter 481 of the Laws of 2021 amended Section 103(e) of the Law to require that copies of records be made available to the public at least 24 hours before a public meeting, to the extent practicable. Records may be available for a reasonable fee and/or by posting them online. [Editor note: this next paragraph has a highlight of the second point and the word policies is circled in red]. The Law addresses two types of records: first, those that are not required to be made available pursuant to FOIL; and second, proposed resolutions, law, rules, regulations, policies (circled in red), or amendments thereto. When (red arrow) either is scheduled to be discussed during an open meeting, the law requires that they be made available to the public, to the extent practicable, at least 24 hours prior to the meeting.

Second screenshot of another section of the Disclosure of records scheduled for discussion at open meetings. Link to full text of this page is available in Footnote 3. Text reads: We emphasize that the potential obligation to make records available on request or online is limited to records that are "scheduled to be the subject of discussion" during an open meeting." If there is a basis for conducting an executive session, a portion of a meeting that may be closed, records scheduled [Ed. note: this section is highlighted] to be discussed during the executive session are not required to be disclosed. Further, if a proposed policy offered by the head of an agency, a mayor, a town supervisor, or a superintendent of schools was preceded by recommendations or opinions expressed by staff or members of a public body, those recommendations, opinions or similar materials fall outside the coverage of the amendment and need not be disclosed [Ed note: end highlight]. See FOIL Section 87(2)(g). Through the disclosure of records scheduled to be discussed during open meetings, the public may be better able to understand and appreciate the issues facing government. Interested and civic-minded citizens can offer information and points of view that can assist in improving the operation of government to the beenfit of our communities.

So with that, I answer the question ""Do working documents being shaped and edited at committee meetings need to be posted in advance of the committee meeting?" as follows:

Even if a policy is in draft form, or if multiple versions are under review, if it is on the agenda of a public meeting for discussion, the version or versions under review should be included in the meeting packet, to allow for meaningful public access to the materials.[4]

That said, recommendations, opinions, or similar materials regarding such policies under development do not have to be shared, and revisions not ready in time for posting (even if discussed at the meeting) do not have to be made available/posted in advance.

Thank you for a subtle and thoughtful question!



[1] The beautiful, if somewhat bedraggled by an industrial past, Buffalo NY.

[2] This was not a huge stretch, as that topic actually is under consideration by Buffalo as of April 2022.

[4] Although the law does not require it, when doing so, I strongly advise that the version include a header or some type of other indicia showing that it is a draft copy for review only, and the version date (of course, archivists and clerks?).
 

 

Tags: Board of Trustees, Open Meetings Law, Policy, Privacy, Public Records

Topic: Posting recorded meetings under Open Meetings Law - 04/15/2022
With recent updates to the OML in New York state, there is now a requirement both to stream and to...
Posted: Friday, April 15, 2022 Permalink

MEMBER QUESTION

With recent updates to the OML in New York state, there is now a requirement both to stream and to make recordings of sessions available via website as described in 103(f).[1] However, the last two sentences of 103(f) seem to limit this requirement only to certain public bodies.

We are trying to understand whether or not this applies to a municipal library board's meetings or not. Certainly we do not have any members appointed by the board, and even if you go up to being chartered by the Board of Regents, Regents are elected by the legislature, so hard to see any applicability there.

Do you see any requirement in the open meetings law for library boards to have video recordings of their meetings posted publicly via the internet? Text of 103(f) below, or online here: https://opengovernment.ny.gov/system/files/documents/2022/02/oml-text-02282022.pdf
 

(f) Open meetings of an agency or authority shall be, to the extent practicable and within available funds, broadcast to the public and maintained as records of the agency or authority. If the agency or authority maintains a website and utilizes a high speed internet connection, such open meeting shall be, to the extent practicable and within available funds, streamed on such website in real-time, and posted on such website within and for a reasonable time
after the meeting. For the purposes of this subdivision, the term “agency” shall mean only a state department, board, bureau, division, council or office and any public corporation the majority of whose members are appointed by the governor. For purposes of this subdivision, the term “authority” shall mean a public authority or public benefit corporation created by or existing under any state law, at least one of whose members is appointed by the governor
(including any subsidiaries of such public authority or public benefit corporation), other than an interstate or international authority or public benefit corporation.
[emphasis added]



[1] Editor footnote:  the question slightly mis-states the Open Meeting Law's most recent requirements; we'll address this in the answer.

 

WNYLRC ATTORNEY'S RESPONSE

Before we dive into the answer, I have to say two things.

First, just a reminder: the reason any chartered library--even an association library--has to follow the State's "Open Meetings Law" and allow public access to trustee meetings, is because Section 260-a of the Education Law requires it.[1]

Second: the timing of this question made it a real pain in the [law].   Here's why:

My first draft answer was written on March 29, 2022.

While the draft was in review, I realized there was a change to the law that I had not factored in.[2]  So I pulled back the draft to revise.

While I was revising, the law was changed again![3]

Image is a screenshot of a memorandum. It reads: To Whom It May Concern, From Shoshanah Bewlay, Executive Director, Committee on Open Government. Re: Amendments to the Open Meetings Law Relating to Videoconferencing. Dated April 11 2022. On April 9, 2022, Governor Hochul signed Chapter 56 of the Laws of 2022 relating to the New York State budget for the 2022-2023 state fiscal year. See Senate Bill 8006-C/Assembly Bill 9006-C. Included in the bill is Part WW, an amendment to the Open Meetings Law to make permanent (until July 1, 2024) the expanded use of videoconferencing by public bodies to conduct open meetings, in very limited circumstances, regardless of a declaration of emergency. Our staff is currently reviewing the details of the bill and will provide written guidance on our website regarding its requirements as soon as possible. Until then, however, it is important to note that the law permits public bodies to continue to hold remote meetings in the same manner as described in Chapter 1 of the Laws of 2022 for a period of 60 days after its effective date, or until June 8, 2022.

This required yet another re-write.

So now, as of April 13, 2022--at the risk of Governor Hochul punking me with yet another change to the law--here is the short answer to this question:

103-e does NOT require a library board to record and post their meetings; that is limited to authorities and agencies with at least one member appointed by the governor.[4]

However, under OML 103(c), and per a current temporary add-on to the law,[5] trustee meetings must continue to be broadcast/recorded/transcribed, UNLESS the meeting is ONLY taking place in person, AND the community can physically access each site of the meeting.[6]

That said, a library board is certainly welcome to broadcast and archive its in-person meetings, and (critically) a board cannot bar attendees from streaming or otherwise broadcasting in-person (or streamed) board meetings, either.  Further, if capacity or public health concerns mean setting up to allow remote attendance ensures access to the meeting, there is strong incentive to use the (right now) temporary ability to meet via broadcast/record/transcribe.

So, what does this latest (April 9, 2022) change mean?

Right now,[7] if a board meeting is not being broadcast/recorded/transcribed, any remote location from which a board member is attending the meeting is a de facto additional site of the meeting...so the location must be disclosed in the notice for the meeting and the public must be able to attend the meeting at that remote site.

But it looks like this latest change (April 9, 2022) will somewhat change that. So expect (much) more commentary on this...both from me, and others.[8]

Now, for those of you scratching your heads and saying "Wait a minute, you mentioned all these changes in 2022, I KNOW they changed the law back in November 2021!"  --You're right, they did.  That change amended the OML to require that documents to be viewed by the trustees at the meeting be made available (and if possible, posted on the library's web page) at least 24 hours before that meeting.[9]

Thank you to the member for a thoughtful question.  As to the legislature and the Governor[10]....we see where all of this is going (a more accessible and greener OML), but a little dinner and dancing might be nice before you change the law again!

Most recent OML changes (as of April 13, 2022).

Section 1.  Subdivision (c) of section 103 of the public officers law,

    20  as  added  by  chapter  289  of  the laws of 2000, is amended to read as

    21  follows:

    22    (c) A public body [that uses videoconferencing to  conduct  its  meet-

    23  ings]  shall provide an opportunity for the public to attend, listen and

    24  observe [at any site] meetings in at  least  one  physical  location  at

    25  which a member participates.

    26    §  2. The public officers law is amended by adding a new section 103-a

    27  to read as follows:

    28    § 103-a. Videoconferencing by public bodies.  1.  For the purposes  of

    29  this  section,  "local  public  body" shall mean a public corporation as

    30  defined in section sixty-six of the general construction  law,  a  poli-

    31  tical  subdivision  as  defined  in  section  one hundred of the general

    32  municipal law or a committee or subcommittee or other  similar  body  of

    33  such  entity,  or  any entity for which a quorum is required in order to

    34  conduct public business and which  consists  of  two  or  more  members,

    35  performing  a  governmental  function  for  an  entity  limited  in  the

    36  execution of its official functions to a portion only of the state, or a

    37  political subdivision of the state, or for an agency or department ther-

    38  eof.   For the purposes of this section,  a  public  body  shall  be  as

    39  defined in subdivision two of section one hundred two of this article.

    40    2.  A  public  body  may,  in its discretion, use videoconferencing to

    41  conduct its meetings  pursuant  to  the  requirements  of  this  article

    42  provided  that  a  minimum  number of members are present to fulfill the

    43  public body's quorum  requirement  in  the  same  physical  location  or

    44  locations  where  the  public  can attend and the following criteria are

    45  met:

    46    (a) the governing board of a county, city, town or village has adopted

    47  a local law, or a public body has adopted a resolution,  or  the  senate

    48  and  assembly  have adopted a joint resolution, following a public hear-

    49  ing, authorizing the use of videoconferencing:

    50    (i) for itself and its committees or subcommittees; or,

    51    (ii) specifying that each committee or subcommittee may make  its  own

    52  determination;

    53    (iii)  provided  however,  each community board in a city with a popu-

    54  lation of one million or more shall make its own determination;

        S. 8006--C                         248                        A. 9006--C

 

     1    (b) the public  body  has  established  written  procedures  governing

     2  member  and  public  attendance  consistent  with this section, and such

     3  written procedures shall be conspicuously posted on the  public  website

     4  of the public body;

     5    (c) members of the public body shall be physically present at any such

     6  meeting  unless  such  member  is unable to be physically present at any

     7  such meeting location due to extraordinary circumstances, as  set  forth

     8  in  the resolution and written procedures adopted pursuant to paragraphs

     9  (a) and (b) of this subdivision, including disability, illness, caregiv-

    10  ing responsibilities, or any other significant or unexpected  factor  or

    11  event which precludes the member's physical attendance at such meeting;

    12    (d)  except  in  the  case of executive sessions conducted pursuant to

    13  section one hundred five of this article, the public body  shall  ensure

    14  that members of the public body can be heard, seen and identified, while

    15  the  meeting  is  being  conducted,  including  but  not  limited to any

    16  motions, proposals, resolutions, and any other matter formally discussed

    17  or voted upon;

    18    (e) the minutes of  the  meetings  involving  videoconferencing  shall

    19  include which, if any, members participated remotely and shall be avail-

    20  able to the public pursuant to section one hundred six of this article;

    21    (f) if  videoconferencing  is  used  to  conduct a meeting, the public

    22  notice for the meeting shall inform the  public  that  videoconferencing

    23  will be used, where the public can view and/or participate in such meet-

    24  ing,  where  required documents and records will be posted or available,

    25  and identify the physical location for the meeting where the public  can

    26  attend;

    27    (g)  the  public  body shall provide that each meeting conducted using

    28  videoconferencing shall be recorded and such recordings posted or linked

    29  on the public website of the  public  body  within  five  business  days

    30  following  the  meeting,  and shall remain so available for a minimum of

    31  five  years  thereafter.  Such  recordings  shall  be  transcribed  upon

    32  request;

    33    (h) if videoconferencing is used to conduct a meeting, the public body

    34  shall  provide  the  opportunity  for members of the public to view such

    35  meeting via video, and to participate in proceedings via videoconference

    36  in real time where public comment or  participation  is  authorized  and

    37  shall  ensure  that videoconferencing authorizes the same public partic-

    38  ipation or testimony as in person participation or testimony; and

    39    (i) a local public  body  electing  to  utilize  videoconferencing  to

    40  conduct its meetings must maintain an official website.

    41    3. The in person participation requirements of paragraph (c) of subdi-

    42  vision two of this section shall not apply during a state disaster emer-

    43  gency  declared  by the governor pursuant to section twenty-eight of the

    44  executive law, or a local state of emergency  proclaimed  by  the  chief

    45  executive  of  a county, city, village or town pursuant to section twen-

    46  ty-four of the executive law, if the public  body  determines  that  the

    47  circumstances  necessitating  the  emergency declaration would affect or

    48  impair the ability of the public body to hold an in person meeting.

    49    4. No later than January first, two thousand twenty-four, the  commit-

    50  tee  on  open government, created by paragraph (a) of subdivision one of

    51  section eighty-nine of this chapter, shall issue a report to the  gover-

    52  nor, the temporary president of the senate, the speaker of the assembly,

    53  the  chair  of  the  senate  standing committee on local government, the

    54  chair of the senate standing committee on investigations and  government

    55  operations,  the  chair  of  the  assembly  standing  committee on local

    56  governments, and the chair of the assembly standing committee on govern-

        S. 8006--C                         249                        A. 9006--C

 

     1  mental operations concerning the application and implementation of  such

     2  law and any further recommendations governing the use of videoconferenc-

     3  ing by public bodies to conduct meetings pursuant to this section.

     4    5.  Open  meetings  of  any public body that are broadcast or that use

     5  videoconferencing shall utilize technology to permit access  by  members

     6  of  the public with disabilities consistent with the 1990 Americans with

     7  Disabilities Act (ADA), as amended, and  corresponding  guidelines.  For

     8  the  purposes  of  this  section,  "disability"  shall  have the meaning

     9  defined in section two hundred ninety-two of the executive law.

    10    § 3. Notwithstanding the provisions of article 7 of the  public  offi-

    11  cers  law  to  the  contrary, for sixty days after the effective date of

    12  this act any public body shall be  authorized  to  meet  and  take  such

    13  action  authorized  by law without permitting in public-in-person access

    14  to meetings and authorize such meetings to be held remotely  by  confer-

    15  ence  call  or similar service, provided that the public has the ability

    16  to view or listen to such proceeding and that such meetings are recorded

    17  and later transcribed.

    18    § 4. This act shall take effect immediately and shall  expire  and  be

    19  deemed repealed July 1, 2024.

 



[1] This requirement comes with one modification: " ...notwithstanding the provisions of subdivision one of section ninety-nine of the public officers law, public notice of the time and place of a meeting scheduled at least two weeks prior thereto shall be given to the public and news media at least one week before such meeting."

 

[2] It happens.  This is why a multi-step review process is a valuable thing.  Many thanks to Rebecca Darling in Ballston for her input!

[3] This time, on April 9, 2022.   The complete notice I have pasted above is posted at https://opengovernment.ny.gov/system/files/documents/2022/04/oml-videoconferencing-amendments-041122.pdf.

[4] Ironically, all the fuss and changes did not change my original answer...just the context I was including.

[5] Chapter 1 of the Laws of 2022.

[6] The OML, before the pandemic, allowed members to attend via teleconference ONLY if their location became an additional site of the meeting, and the public could attend there.

[7] April 13, 2022.

[8] In fact, I'll be doing a training on this for NYLA on Tuesday May 17th, in Albany.  For more info, see https://www.nyla.org/spring-on-the-hill-an-in-person-nyla-advocacy-event/

[9] For more on this, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/238.

[10] The Governor is from my hometown.  She's a hero to many in Buffalo, so I say this with respectful frustration.

 

Tags: Board of Trustees, Broadcasting, Open Meetings Law, Transcription

Topic: Screening DVD as part of curriculum - 04/04/2022
If a teacher teaches a novel in school, can they show the DVD of the movie under fair use?  ...
Posted: Monday, April 4, 2022 Permalink

MEMBER QUESTION

If a teacher teaches a novel in school, can they show the DVD of the movie under fair use?

 

WNYLRC ATTORNEY'S RESPONSE

This question was submitted by a system serving elementary and secondary schools.

The answer for those schools (and for higher education, too) is: if the viewing of the DVD is tied to the reading of the book and the content is part of the class/curriculum, then YES, it can be viewed in class.

This exception to infringement by a school is found in 17 U.S.C. 110  (1), which states:

...the following are not infringements of copyright:

(1) performance or display of a work by instructors or pupils in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture or other audiovisual work, the performance, or the display of individual images, is given by means of a copy that was not lawfully made under this title, and that the person responsible for the performance knew or had reason to believe was not lawfully made;

So, to be clear: at a not-for-profit school, as part of the curriculum, in the school's designated learning space, the "movie based on the book" can be viewed as part of  the curriculum...so long as the copy being watched was not pirated or otherwise obtained through the shady  (but now losing ground to illegal streaming) DVD black market.

Thank you for this question.
 

 

Tags: Copyright, DVDs, Fair Use, Movies, School Libraries, Section 110

Topic: Purchasing streaming services in libraries - 04/04/2022
Is it legal for the library to purchase a Netflix account and install it on a Roku or Firestick an...
Posted: Monday, April 4, 2022 Permalink

MEMBER QUESTION

Is it legal for the library to purchase a Netflix account and install it on a Roku or Firestick and lend that out for patrons to use? See also: Amazon Prime, HBO Max, Disney+, Paramount+, etc. etc.

 

WNYLRC ATTORNEY'S RESPONSE

When this question came in, our first thought was that it was addressed in answers such as ATL 191 and ATL 104, and even older ATL 55, where we tackled the types of limits streaming services impose on accounts via contract. 

These answers (and others) discussed how most[1] commercial streaming service contracts limit the ability to transfer a personal streaming services account to another person (temporarily or permanently), even if the transfer is limited to one person at a time.

The member replied that we hadn't yet addressed their issue.

This question was submitted in June of 2021, and I have had a chance to chew it over.[2]

As I chewed, I reminded myself of a few things:

  • librarians, as a profession, need to see information flow
  • librarians, as a profession, are innovators;
  • librarians, as a profession, are service-oriented.

This is different from lawyers.  If you say: "An enforceable contract with no loophole means no one gets to borrow a Firestick to access 'If Beale Street Could Talk' during Black History Month," to a lawyer, they will say "Hmm.  When does that contract end?  Let's make a note for future negotiations."

However, from what I've seen, if you say something like that to a librarian, they will reply: "There has to be a way."

This may have something to do with why the librarians have a more popular profession than lawyers.[3]

So...is there a way?  I see three ways.

First way: enable the lending through a stark and deliberate violation of the streaming service's terms.  Just do it.

Of course, choosing to do such a thing runs a heavy risk of potential liability (for both the library and the borrower), so this is a VERY, VERY, VERY, BAD IDEA. Don't do it, unless you have worked with a lawyer on a strategic defense and are planning to use any potential litigation as publicity to negotiate changes to streaming contracts (a sort of contractual "civil disobedience").

Second way: reach out to the streaming service and see if you can negotiate a custom arrangement.  For instance, it would be very interesting to see if a library could negotiate up to 10,000 viewing hours on an annual basis to be on accounts specially created to be shared.  Clever lawyers at the streaming service could even make sure that this was regarded as a charitable donation by a streaming giant, and of course, they would also milk it for positive publicity.

Third way: You need to Go Big.

What do I mean by that?

This question is yet another example of the troubling trend of for-profit content aggregators using their market share to restrict information access.

This used to be the bleeding edge of concerns created by the intersection of copyright/contracts/capitalism, but it is now a firmly established Problem.

In my work, I have consulted with academic libraries and other institutions on how scholarly and public service-oriented content providers can guarantee access is not completely cut off on the basis of money. I have worked on checklists for contract negotiation, and provided model contract terms to help libraries use their market power to ensure big aggregators don't use their market power to stifle access, innovation and collaboration. This is not new work and I am not the first person to say this; it's an issue to which the library community is very much aware, and is closing ranks.

To solve this issue, there are a few ways to go. The best way would be to seek amendments to the copyright law to carve out further protections for libraries who are sharing electronic resources and streaming access in furtherance of their missions. This type of discussion is happening in Washington right now, and it is critical that everyone is rooting for the right revisions to be put into the law.

The second way is of course a version of my second answer above...use contract, and the market share of libraries, as leverage to negotiate for terms that enable the type of access the member is suggesting.  While I am a fan of using contracts to come up with creative solutions, this will not create an even playing field for the different types of institutions who need to benefit from this, so I prefer the legislative option.

I encourage all librarians to monitor this discussion at https://www.copyright.gov/policy/section108/, because the question the member has provided is exactly where the rubber hits the road on that type of legislation.

I am putting screenshots of the Netflix terms of service below this answer, which I took on February 11th, 2022, to show that at least as of this date, that particular streaming service continues to restrict access to personal use (first red box), with very limited exceptions for certain educational showing of certain documentaries in educational settings (second red box).

Thank you to the member for your tenacity, and for submitting this question.

Screenshot of Netflix Terms of Service, point 4. Text reads: 4. Netflix Service. 4.1 You must be at least 18 years of age to become a member of the Netflix service. Individuals under the age of 18 may only utilize the service with the involvement of a parent or legal guardian, under such person's account and otherwise subject to these Terms of Use. 4.2 The Netflix service and any content accessed through our service are for your personal and non-commercial use only and may not be shared with individuals beyond your household. During your Netflix membership, we grant you a limited, non-exclusive, non-transferable right to access the Netflix service and Netflix content through the service. Except for the foregoing, no right, title, or interest shall be transferred to you. You agree not to use the service for public performances.

 

Screenshot of Netflix Help Center Page. Text reads: Currently viewing information for United States. Educational Screenings of Documentaries. Some Netflix Original educaional documentaries are available for one-time educational screenings. To find out which titles are available for educational screenings, visit media.netflix.com and search for the title or browse our recent and upcoming releases. Titles that are available for educational screening will display the following grant of permission on their details page: Grant of Permission for Educational Screenings. Netflix is proud to present original documentaries that speak to our users in a meaningful way. We know that many of you are as excited about these films as we are; and because of their information aspects, you'd like to. Text is cut off here and you must visit the page for more information.

 



[1] Actually, based on what I've seen, "all," but most of the services reserve the right to change the license without notification to the end user, and of course, I am not omniscient, so I'd like to think there's a streaming service out there somewhere with less draconian terms. Hope springs eternal!

[2] And swallow it, digest it, and create this end product.  Many thanks to CLRC and member Hamilton Public Library for your patience!   It took a rain-logged, windy Saturday in February 2022 to get me in the right head space for this.

[3] I took a look, and of course, "National Librarian Day" happens every year in April. As librarians no doubt know, NLD is billed as a chance to "celebrate" your local librarian. Interestingly, April also hosts international "Be Nice to Lawyers Day." That's right...we have ONE day a year when people are told to be "nice" to their lawyer!

 

Tags: Copyright, Section 108, Streaming

Topic: Employee privacy and image use - 03/31/2022
My concern is about employee privacy and image use. Since it is so easy to take a picture these da...
Posted: Thursday, March 31, 2022 Permalink

MEMBER QUESTION

My concern is about employee privacy and image use. Since it is so easy to take a picture these days, and many employee meetings are happening over videoconference, what are the laws governing the use of employee images and materials generated by a library employer?   What stops the participants in an online meeting from taking and using screenshots of attendees?  I know that being a librarian often means working with the public, but when it comes to an employer using an employee's picture and other digital captures of their image, what does the law say?   Can an employee attending an online meeting be compelled to turn on their camera?

 

WNYLRC ATTORNEY'S RESPONSE

This is one of those questions that a thoughtful attorney, wishing to be thorough, could write a book about. However, "Ask the Lawyer" is not a book, so we'll see what I can do in about one thousand words!

To give some useful answers, and also stick within our word limit:

1.  If a library/employer needs to convene a meeting of employees and decides it will use videoconferencing tech to do so, and then states an expectation that all participating employees will turn their cameras on during the meeting, no law in New York bars such a requirement.

2.  If employees of a library/employer that requires, as a matter of policy, that participants in a video conference must turn their cameras on, decide to demand via a collective bargaining agreement, or through policy, that keeping a camera "off" should be an option for an employee, that could become a negotiated or policy-based term of employment.  But an employer could say "no" when this is asked/demanded (and then take the hit on employee morale and/or union relations).

3.  If a solitary employee of an employer who requires participants in a video conference to turn their cameras on decides being on-camera is unacceptable to them, and they request an exception to the rule, that is a reasonable request--but there is no obligation on the part of the employer to honor it (and in fact, special exceptions could cause issues...more on that in a bit).

4.  If an employee has a disability that prevents them from working effectively while on camera, that employee could request keeping the camera "off" as a disability accommodation, and the employer would have to consider the request per their disability accommodations policy (Based on the particular circumstances, this may or may not result in a decision to grant the requested accommodation).

5.  Now, with respect to the use of pictures: if an employer uses an employee's image--taken as either a photograph, a screenshot, or through any other means--for commercial purposes without the employees' permission, that could potentially be a violation of the law.  This is why employers who wish to use their employees' images in catalogs, advertising campaigns, and other publications as part of commercial operations should obtain written permission for such use.[1]

6.  Library/employers who wish to be proactive about protecting employee privacy, while also acknowledging that a library's workforce does often play a public role in their community, should use thoughtfully developed policies to find the balance between public relations and employee safety and privacy. A well thought-out and routinely re-evaluated use of a "Social Networking Policy," a "Media Relations Policy," and a "Branding and Promotions Policy"[2] can achieve this balance.

7.  And now, for some thoughts on how this all fits together.

[Clears throat, steps on soapbox]

There is no one right way to do any of the above-listed items, but because having a solid process that respects the privacy of employees is part of attracting, developing, and retaining a qualified and dedicated workforce--as well as promoting the operations of the library--it is important that a library/employer find the way that works for them.

On the employee side, for library employees who are concerned about their privacy, or about being compelled to turn a camera on, if at all possible, raising the issues gently with management prior to any type of crisis point is a good idea.[3] For libraries that are using name tags, or have specific policies related to employee safety/privacy, or use of cameras on site, any of those policies are good entry points for consideration of these issues.

Law aside, as a business owner, and as the participant in (now) more online meetings than I can count,[4] I have found that it is very important to set the norms for online meetings[5] so that employees know what the expectations are.

How is that done?  When convening a meeting, at least until a group knows what the norms are, it is good to give a few of the ground rules. For instance, a good set of opening ground rules could be:

 "Thanks everyone for gathering today. While we can't be together in person, it is good to be together for this important topic. For this meeting, cameras are optional, but we ask that if your camera is off, you use a picture of your face for ease of communication. This meeting is not being recorded, and we ask that you refrain from taking screenshots unless you ask first. If you have questions during the discussion, feel free to put them in the chat. Our note-taker today is [Person], and if you have items that you want to make sure end up in the notes, please put those in the chat as we meet. The notes for the meeting will go out by tomorrow."

Another example, very different but just as enforceable, would be:

Thanks everyone for gathering today.  While we can't be together in person, it is good to be together for this important topic. For this meeting, we do ask that you keep your camera on, so we are all using the same modes of communication. Also, so we have a good record of the information we'll review and the decisions we'll make, this meeting is being recorded. As a courtesy, please do not take a screenshot unless you ask first. If you need to make a comment, please raise your hand, and I as moderator will get you in the queue. We don't have a note-taker for today, so please make your own notes for any points to follow-up, or ask [Person] for the recording. As with all our meetings, the recording will be considered confidential and not for release to anyone who was not in attendance."

...and the combinations could go on.

By being thoughtful about the nuances of privacy and the norms for meetings, a library/employer can both set the tone for a graceful meeting, and also position themselves to proactively address any employee concerns about the chosen norm for meetings overall. This is particularly important if an employer is insisting that cameras be on at all times; while there may be compelling reasons for this type of rule, if a library/employer is relying on employees who are working from home, there may also be compelling reasons to give employees the option of attending with their camera "off"; a well thought-out and routinely expressed set of norms will help with compliance, will make sure exceptions to "camera-on" rules are not perceived by others as unfair, and will create space for feedback in case employees want to request that the rule or norm be changed.

Thank you very much to the member for a compelling set of questions that are very much of the times. As with all "Recently Asked Questions" posted on "Ask the Lawyer, we invite feedback on this one (sent to info@losapllc.com or through the "Ask the Lawyer" submission page).  This is an evolving topic, and I am sure many library council members out there have thoughts on this!



[1] For more on image rights, see the “Ask the Lawyer” here: https://www.wnylrc.org/ask-the-lawyer/raqs/49.

[2] There is no one name for this type of policy...some libraries call it "marketing," while others resist that label as too commercial-sounding.  If it didn't sound so cute, I'd say call it the "Who We Are and What We're Doing" policy, since that is really what it's for.

[3] I appreciate that not all employees are in situations where they feel empowered to raise this type of concern--gently, or at all. 

[4] In 2022, who can't claim this breadth of experience?  That said, because of my work, I have met with now hundreds of clients via telecon, so have seen a wide array of how business conduct online meetings.

[5] This is important for in-person meetings, too...but the norms may be a bit different.

 

Tags: Employee Rights, Image Rights, Policy, Privacy

Topic: Using a YouTube Video to create another video - 03/16/2022
I am asking this on behalf of the Elementary School in my district. (I work in the library of our ...
Posted: Wednesday, March 16, 2022 Permalink

MEMBER QUESTION

I am asking this on behalf of the Elementary School in my district. (I work in the library of our district's high school). The Elementary School participates every year in a program called PARP. (Parents As Reading Partners). The teachers and principal always make some sort of video to kick this off this event since pandemic times.

This year the entire school is reading the SAME book: The World According to Humphrey, by Betty G. Birny. (It's a story about a Hamster and how he deals with life issues). My district's teachers want to "borrow" liberally from this Animoto video: https://animoto.com/play/ICom40fpoTdMzDov931aDQ

This video contains four components: 1. Another School (We'll call it School X, an independent school in California essentially doing the same thing), 2. an interview with the author segment, Betty G. Birny, 3. an interview with a store clerk from PetCo and 4. a video of a hamster performing "cute antics" with a voice-over dubbed in called April's Animals. (This individual posts varied animal videos on YouTube)

What my teachers want to do is create their OWN video of teachers and the principal endorsing this book, interspersed with the hamster video from April's Animals. I did observe at the end of the Animoto video, there were credits provided. My school would not use the PetCo interview or the Author Interview or the School X video as those segments are directly related to that specific school. They want to do the same idea and only use the video provided by April's Animals. I didn't know if this would be problematic because we are a public school, this would not be posted on YouTube. It would be shown over our school network to our K-2 classrooms one time only.

 

WNYLRC ATTORNEY'S RESPONSE

The short answer to this question is: IF the video is only going to include the YouTube animal clips, and IF it is only going to be used in the school for instructional purposes, the proposed use is fine, since copyright section 110(1)[1] allows schools to play videos in class if the topic is related to a class, and YouTube doesn't limit use of its service to "personal" uses.

Now, I say "mostly" fine because, technically, the combination of the YouTube content into another video compilation could be considered the creation of a "derivative work" (like a sequel or a mash-up), instead of just "performing" (playing) the video as allowed by law.  But if the copy truly isn't leaving school grounds, and the "performance" is to promote a reading program in the classroom, and the footage really is just being swapping in and out with interviews with school staff, it would be a stretch for anyone to claim infringement.

With respect to the other issue that I detect in the question--would "School X" have a claim against the school for pinching its idea? I don't think so.  The project you describe is sufficiently different from theirs; after all, they got their author for their endeavor, and your school is focusing on local talent.  You can't copyright an idea[2]...just its expression.

When it comes to a school generating original educational content inspired by others, for use only within that school, the key is to model the type of respect for others that educators want to instill in their students, while taking full advantage of the protections educators have under the law.

In this case, "Respect" means not using pirated copies when a school plays instructional movies, and not using more content than the school is entitled to when the instruction is online.  "Protections," among other things, means that for in-person instruction, videos can be played, and for online instruction, parts of videos can be played, so long as the performance is from legitimate copies.[3]

[NOTE: For schools that want to up their game and start producing original content they will share with the world: this answer is not for you.  If any school out there is thinking of becoming an author/producer/provider of educational materials, don't rely on this answer, and develop a business plan that includes how to respect and protect IP.]

And finally, I have to say: thank you for this question.  First, it got me onto Animoto, which I am totally going to check out.[4]  And second: I love PARP.  Some of my fondest circa-1980 memories are of filling out my PARP form with my folks, after some time reading together on the couch,[5] so this question made me smile.  It's good to see the program is going strong, and the hamsters of the world are showing us how to cope with the ups and downs of life.

 



[1] 110(1) allows "Performance...of a work by instructors ...in the course of face-to-face teaching activities of a nonprofit educational institution, in a classroom or similar place devoted to instruction, unless, in the case of a motion picture...the performance... is given by means of a copy that was not lawfully made...."

[2] Of course, you can patent certain ideas, so please don't think I'm touting intellectual property anarchy.

[3] This aspect of Copyright Section 110 is different than the issue of streaming services being limited for personal use, and thus not always the best place for educators to get their in-class movies.

[4] I clearly don't get out much.

[5] My parents still have the same couch, which they got in 1964.   They are the greenest people I know.

Tags: Copyright, School Libraries, Section 110, Streaming, TEACH Act

Topic: Board of Trustees notes retention - 03/09/2022
I am a Trustee on the Board of our library. I also serve as the Secretary to the Board. As such, I...
Posted: Wednesday, March 9, 2022 Permalink

MEMBER QUESTION

I am a Trustee on the Board of our library. I also serve as the Secretary to the Board. As such, I do the note-taking and draft the meeting minutes for every board meeting. Do I need to retain my handwritten notes, once I have transcribed them into document format? If so, how long must they be kept and where? FYI, the minutes are drafted, approved by the Board, then uploaded to the library website where they are available to the public.

Thanks for your consideration. Much appreciated.

WNYLRC ATTORNEY'S RESPONSE

This question comes to "Ask the Lawyer" from a public library.

As quasi-governmental entities, public libraries must follow a precise array of law, regulations, and rules for record-keeping.  We'll delve into that for those factors to answer this question.

What does that mean for association libraries, who can be a bit more free-wheeling in their records management?  This answer doesn't (quite) apply to you, but stick around, we'll make it worth plowing through the next few paragraphs.

Governments and "quasi-governmental"[1] entities, like public libraries, are subject to the requirements of Article 57-A of the New York "Arts and Cultural Affairs Law" ("57-A") which requires officers to "maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible."

57-A also gives the NY Commissioner of Education the right (and obligation) to set the period of retention for different types of records.  The current collection of these retention periods is the LGS-1, on which "Ask the Lawyer" has written admiringly[2] before.

The LGS-1 does have a specific section for libraries and library systems (rules #590-603, which every public library should be following), but it is silent on the topic of board meeting materials, which means that the more generic section 48, "Meeting files of governing body or board or agency, commission or committee thereof, including agendas, background materials and other records used at meetings" applies.

Rule 48 states that the retention period for "[t]emporary drafts or personal notes that were not circulated, reviewed, or used to make decisions or complete transactions" is ZERO "after no longer needed."

So: as long as the hand-written notes are considered a "temporary draft" or "personal notes" as part of the creation of the actual draft minutes (the retention of which is "PERMANENT" per Rule 47), they may be shredded after the draft minutes are typed up as described by the question.

BUT, I offer caution: if the hand-written draft minutes are used for any purpose other than to create an exact typescript version, including but not limited to interim decision-making before the next board meeting, or to inform the process of passing the official minutes, then they are transformed into something different than personal or temporary notes, and I advise they be retained together with the other permanently retained public library board meeting materials...which also makes them subject to FOIL.

Sounds complicated, right?  Below is a poem to help you remember (association libraries, the last four lines are for you, too...I told you it would be worth sticking around):

A public library's records must stay

At the library per A and C Law 57-A;

The retention of those library records is done

For a period set by the LGS-1;

And the public can demand to see

Those records by asking for a FOIL copy.

Chartered libraries of any kind

The Open Meetings Law must mind

And the docs the board will see

Must be shared with the community.[3]

In all of this, personal notes

turned into minutes per trustee votes

When no longer needed, can be disposed

...so long as notes were all they posed.

Hmm.   Maybe it's just easier to read the law and rules?  Just in case, I have put them below.

Thanks for a great question, and thank you for your service as a conscientious trustee and officer!

The law:

§ 57.25. Records retention and disposition

1. It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible; to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to cooperate with the local government’s records management officer on programs for the orderly and efficient management of records including identification and management of inactive records and identification and preservation of records of enduring value; to dispose of records in accordance with legal requirements; and to pass on to his successor records needed for the continuing conduct of business of the office. In towns, records no longer needed for the conduct of the business of the office shall be transferred to the custody of the town clerk for their safekeeping and ultimate disposal.

2. No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments records retention and disposition schedules establishing minimum legal retention periods. The issuance of such schedules shall constitute formal consent by the commissioner of education to the disposition of records that have been maintained in excess of the retention periods set forth in the schedules. Such schedules shall be reviewed and adopted by formal resolution of the governing body of a local government prior to the disposition of any records. If any law specifically provides a retention period longer than that established by the records retention and disposition schedule established herein the retention period established by such law shall govern.

The "Meetings/Hearings"  provisions  from LGS-1

47 CO2 1, MU1 1, ED1 1, MI1

1 Official minutes and hearing transcripts of governing body or board, commission or committee thereof, including all records accepted as part of minutes: RETENTION: PERMANENT

48 CO2 3, MU1 3, ED1 3, MI1

Meeting files of governing body or board or agency, commission or committee thereof, including agendas, background materials and other records used at meetings

NOTE: Appraise these records for continuing administrative or historical value prior to disposition. Agendas may have continuing administrative value and may be useful for accessing information in unindexed minutes and for indexing those minutes. Other records prepared for or used at meetings may have administrative or historical value for documenting issues discussed at the meetings and referenced in the minutes.

See item no. 47, above, for records which are accepted as part of the minutes.

a Records not accepted as part of the minutes, including agendas, background materials and other records used at meetings: RETENTION: 1 year

b Temporary drafts or personal notes that were not circulated, reviewed, or used to make decisions or complete transactions: RETENTION: 0 after no longer needed



[1] I use "quasi-governmental" because public libraries fall into (and out of) different categories of "government" or "public" law depending on the legal issue.   For instance, public libraries are subject to the Freedom of Information Law ("FOIL"), which is part of the Public Officers Law, but the board of trustees must also abide by the NY Not-For-Profit Corporation Law.  There are good reasons for this, but it can make things complicated.

[2] Some people are fans of opera, or sports teams.  I am a fan of meticulously categorized retention periods.

[3] For more on the application of the Open Meetings Law and the new(ish) requirements regarding board meeting materials, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/238.

Tags: Board of Trustees, FOIA/FOIL, Legal Poems, LGS-1, Open Meetings Law, Public Officers Law, Record Retention

Topic: Contracts for Library Podcasts - 02/14/2022
The library's podcast (Your Friendly Neighborhood Librarians), hosted by two librarians here, ...
Posted: Monday, February 14, 2022 Permalink

MEMBER QUESTION

The library's podcast (Your Friendly Neighborhood Librarians), hosted by two librarians here, recently started interviewing guests from outside the organization. We are concerned about a few things: what the ramifications are if a guest does not like the way their interview was edited and whether the library owns the rights to the interview and recording. We only edit for clarity and length, and haven't done anything in regards to copyright. Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful. We don't have any sort of agreement in place at present, and are mostly interviewing people who are somewhat library-related. Thank you for your help!

WNYLRC ATTORNEY'S RESPONSE

Some days, I just love my job.  The day I subscribed to "Your Friendly Neighborhood Librarians" (2/4/22) to answer this question was one of those days.

For those of you who haven't checked out the Podcast: it's a forum where hosts (and librarians) Jim and Robyn, based in Rochester, NY, conduct deep and lively interviews with quasi-local authors.  [1]

When it comes to running a Podcast, there's a lot of legal to unpack.  I'll use a recent episode of YFNL (Season 2, Episode 4, January 30, 2022), an interview with photographer Quajay Donnell to illustrate.

When the Podcast starts, the first thing you hear is the YFNL's theme song:

[guitar strumming] "Librarians, librarians, when you've got questions, they're the ones, to help you find what you're looking for..." [more].  It sounds vaguely like the theme to "Spiderman" and is clearly a riff; it's super-cute and fun and brings a smile to my face. Then Jim and Robyn introduce the session's guest and launch into the interview.

The rapport is lively and fun, but Jim and Robyn's deeply prepared interview technique gives Quajay Donnell room to make comments, tell stories, and respond to well-informed prompts to talk not only about his work, but the work of others, and his thoughts on public art (I enjoy Mr. Donnell's comment, after a glowing list of his credentials "I sometimes struggle with the title of 'photographer', I sometimes say 'I'm a picture-taker', or 'I capture moments'."  I appreciate when people resist or explore the purpose of labels).  The show then ends with a cut to a recommendation from a circulation desk worker, Sim, who recommends "Field of Blood" by Joanne Friedman, and a tease for the next episode ("banned and challenged books"), some thanks to various show-helpers,[2] and an instrumental of that great theme song.

So with that background, let's answer the questions:

"[W]hat the ramifications are if a guest does not like the way their interview was edited and whether the library owns the rights to the interview and recording.  Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful. We don't have any sort of agreement in place at present, and are mostly interviewing people who are somewhat library-related."

I wish I could give simple answers to these straightforward questions, but this is "Ask the Lawyer," so I cannot.  But to start, I can say there are three variables that inform the answer to these questions:

Variable "1": Who is creating the Podcast?  Is it "officially" the library, or is it being created through the collaboration of independent individuals?[3]

Variable "2": What is the identity of the Podcast?   Is it 100% entertainment, or is it meant to be investigative journalism, oral history, or serve another documentary purpose?[4]

Variable "3": What is the purpose of the Podcast?  In other words, what is it trying to achieve not only now, but 70 years from now, when it is still protected by copyright, and past consideration of such questions will govern what type of access its intended audience should have?

Here’s how these variables impact the member's questions:

If a library is the creator of the Podcast (meaning the library directed its employees to create the Podcast as part of the work they are hired to do), then the library is the entity responsible for addressing (and bearing the liability for) issues of ethics, ownership, and risk (like defamation and image use).  If an individual or individuals are the creator/owner of the podcast,[5] the responsibility falls on them. 

If the identity of the podcast is light entertainment (that theme song!), then the creator does not have to worry about abiding by, or benefiting from, professional codes of ethics and law pertaining to journalism, academic work, oral history/documentary, or political expression.  But if it aspires to fall into any of those categories (and while it's not my call, I'd say YFNL is at the very least a form of journalism), ethics and certain laws may apply.

If the purpose of the Podcast is to ensure that people listening in 2022, as well as 100 years from now, appreciate home-grown artists in and around Rochester, NY, the creator/owner needs to ensure the work is set up to be controlled in such a way that access for that purpose is ensured.  This is true whether the owner is an entity (like a library), or a person or persons.

So with that as background, let's tackle the member's questions:

For the first question ('"[what] if a guest does not like the way their interview was edited?), the answer is: in a worst-case scenario (say the guest claims the interview was edited to make him sound offensive, and claims it caused him to be "cancelled"), there could be some type of legal claim for damages.  While I won't get too technical, this concern relates to a "tort" claim (like a personal injury) and the member is wise to bring it up, since this is a critical issue.[6]

An attorney advising an entity or person on this would: 1) confirm who the creator, publisher and owner of the content is; 2) ensure the party (or parties) makes good use of a speaker agreement that secures a waiver of liability for the producer and all people affiliated with the podcast; 3) if appropriate,[7] advise a step in the production process that gives participants the right to review and approve release of the final version (in writing).

This plays into the second question: "whether the library owns the rights to the interview and recording."

This should not be an ambiguous issue: either the work is "for hire" (meaning the librarians and other credited helpers are doing it as part of the work they are paid to do, or are working per an additional contract) and is owned by the library, OR the work is owned by the individuals creating it.

The leads to the third question (or rather, factor) listed by the member: We only edit for clarity and length.

This plays into the identity of the podcast. If a podcast or other work isn't using a lot of editing to create a specific dramatic or entertaining effect, and is structured to perform a primarily documentary function, it is worth considering using the established ethics of journalism or oral history to guide the project.

Why? 

In the state of New York, journalists' sources are accorded particular protections under the law, while the identity of the speaker and nature of the communications are relevant to claims of defamation. Also under New York law, the further an unauthorized[8] use of someone's name, likeness, or voice, is from a "commercial use," the less likely a person can sue based on "invasion of privacy." And under federal copyright law, material that incorporates copyright-protected work (perhaps reading part of a poem) for journalistic, academic, or documentary functions will get consideration of that factor if a court needs to determine "fair use."

This next variable I listed is purpose, meaning, what is this work supposed to accomplish, and for how long? Consider that variable in light of the member's statement: "[We] haven't done anything in regards to copyright."

If the purpose of the podcast is to ensure as many people as possible access and appreciate it for as long as possible, what might be more important than registering a copyright is to ensure the work is archived on not only a commercial service such as Apple Podcast (where I found it), but in repositories owned by the public, as part of an institution whose structure ensures some type of longevity.

However, if part of the purpose of the podcast is to ensure for as long as possible that it can never be exploited commercially by anyone, and the owner wants to make sure it will be able to claim damages and attorneys' fees in the event the recording is infringed, registering it is a good idea.

So with that, I get to the last, open-ended question from the member: Additionally, any advice on whether we should be using some sort of contract or agreement with guests would be helpful.

It's important to know at this point that while sometimes I reach out to a member who submits a question to "Ask the Lawyer" (to get a bit more information to enable a more helpful answer), in this case, I did not reach out to Robyn and Jim (although because I really like the podcast, I wanted to!). I thought it would be more important, and in the spirit of their question, to present a generic answer to this part of their question with a generic template that could be of use to other libraries and librarians creating a podcast or other type of audio content.

When creating a podcast, here are the "legal" questions to answer to help you (and your lawyer) address the legal considerations:

Question

Reason it's relevant

Your answer

 

What is the purpose of the podcast?

 

 

It's important to answer this question first, because the purpose of the podcast will drive all the answers following this one.

 

 

 

Are there any professional ethics that apply to the podcast?

 

 

This answer is based in part on the "purpose." If the purpose is a type of journalism, the creator may want to consider affirmatively abiding by applicable journalistic ethics. If the purpose is oral history, the ethics of oral historians could apply.

 

 

Who "owns" the podcast?

 

 

This is a question for a lawyer. However, I can broadly say that if a library or educational institution is directing the podcast to be created, and the people creating it are doing so as part of their jobs, then the podcast is owned by the employer. If everyone involved is unambiguously doing it in their free time, then likely, they are the owners together. And in either case, if there is any grant funding that applies to the podcast, the owner(s) should pay close attention to the terms of the grant, because often grants involve a license or transfer of intellectual property.

 

 

 

What is the end product?

 

 

This seems like a pretty straightforward question, it's "podcast recordings," right? However, in just taking a look at "Your Friendly Neighborhood Librarians" I heard a theme song that could be subject to individual copyright, and I see there are really excellent descriptions of each podcast that were authored by somebody. In addition, "Your Friendly Neighborhood Librarians" (a clever brand) could also be subject to trademark. There is also a logo.  And if the content is in its own archive with its own metadata, the metadata could also be proprietary. These are just a few examples, so inventorying the end creation (and if all of the creators are not employees, making sure intellectual property is transferred appropriately) might be bigger than maintaining a list of podcasts.

 

 

 

What are the terms for regular and guest contributors?

 

 

For podcasts being created by people as part of their jobs, the expectations, rules and protections for them should be understood between their job description and the rules by which the podcast is operated.

 

For guests, as the member's question points out, it is best to have a written agreement that sets out the terms, including the right balance of a waiver of liability and the ability to preview the podcast to ensure any editing does not result in a person saying something they didn't intend to say.

 

(As one example of "rules": if a podcast is being produced by a public library or a not-for-profit organization, there should be a firm rule that no endorsements of political candidates are allowed on the show.)

 

 

What other conditions may apply?

 

For podcasts released on Apple Podcast, this means what are the rules you have to follow under the terms of Apple. For those selecting additional or alternate fora, paying attention to the "terms and conditions" on those resources is also important.  And as mentioned above, grants and donations with conditions that support the content creation should also be considered  (if you are lucky enough to be running a grant-funded podcast).

 

 

How do people access the content?

 

 

This is critical for ensuring accessibility in both the short and long-term.   Early consideration of this factor also ensures that any legal releases or agreements an owner needs to enter into (like licensing a logo) can accommodate the full plan for accessibility. 

 

 

How are any risks being addressed?

 

 

I appreciate this is a very open-ended last item. Broadly speaking, if the podcast is being produced by the library, the library's insurance carriers should be consulted to make sure it has insurance coverage for that type of activity. Any aspect of the podcast that is not covered should either be limited or other risk management, such as a waiver of liability, and a process for preview by guests, should be considered.

 

This last item is addressed by Apple's terms of use for podcasts, which I have included below.

 

 

Screenshot of Apple's Terms of Agreement, Section C focusing on "Your Submissions to Our Services." Visit apple.com/legal/internet-services/itunes for more information.

Now, with all that said, I am very aware that some of the answers I have put above may cause more anxiety then resolve curiosity. To help out with that, below is a template for a "podcast guest agreement."

As with any template, a library or podcaster should have their lawyer consider all of the factors I list above before finalizing the template. But hopefully this template can provide a good start.

[Template Podcast Guest Agreement]

RE:  Terms of guest appearance on [PODCAST NAME] on [DATE]

Dear [NAME OF GUEST]:

Thank you for agreeing to be a guest on our show, [NAME] ("the Show") on [DATE TIME] to discuss [TOPIC].

Below are the terms between you and [OWNER NAME] ("Show Publisher") for your appearance on the Show.  Please review the terms, and if you agree, please sign below.

If you have any questions before signing, please contact [NAME] at [CONTACT INFO] to discuss them before sending us the signed copy.

Ownership

You agree that the direct recording (audio and visual) and any subsequent product incorporating it, including but not limited to transcription and any adaptive copies made to enable access by those with a disability, shall be the sole property of Show Owner.

Image Use

You agree that for purposes of promoting, publishing, performing, displaying and making the Show accessible to its audience, Show Owner may use your name, image, and likeness in print and electronic media.  This permission is expressly limited to promoting and publishing the episode of the Show featuring you.  This permission is irrevocable once the Show featuring you has been made available to the public in any medium.

Rules

The rules of participating in the Show are:

Show Owner is committed to creating an experience and show that respects the dignity of all participants and listeners.  If you have any concern at any point regarding your experience working on the Show, please alert [NAME] at [CONTACT INFO].

If at any point during recording you need to take a break, please simply state "I need a break" and we'll stop recording.  This includes if a topic is not one on which you wish to speak.

We edit our show for length and clarity.  You will be given an opportunity to review the edited version prior to it being uploaded to [SITE(s)].  We ask that you write to [NAME] and [EMAIL] with any concerns about edits within [#] days of the final cut being made accessible to you.  If we don't hear anything from you within three days (excluding Saturday and Sunday), we will assume you consent to the publication of the content.

Please refrain from any endorsement of any political candidates during recording.

Please do not accuse any person of a crime, having an STD, or of being incompetent at their job, or marital infidelity, unless such fact is generally known, during recording.  We don't anticipate your appearance will warrant a dip into such a topic, but to avoid claims of defamation, or having to edit out such content, we alert guests to this consideration.

[INSERT CUSTOM RULES]

Hold Harmless

You release and hold harmless Show Owner, its employees, volunteers, and agents from any and all liability, claims of injury, lawsuits, and complaints in association with Show.[9]

Warranties & Representations

You represent and warrant that:

a) No contract or other obligation bars you from appearing on the Show;

b) Any performance on the Show by you will be of your own original work;

c) You are aware that the permission you are granting NAME to use your image, name, and likeness for the limited purposes listed above is irrevocable;

d)  You know the show will be archived by Show Owner and may archived to be available for your lifetime and beyond.

e) You are over the age of 18 and thus able to sign this contract OR your legal guardian has signed below.

Thank you so much for agreeing to be on our show!

Signed on behalf of Show Owner:___________________________

Signed by Guest:______________________________

Guest Date of Birth:_______________________________

Guest preferred pronouns:_____________________________

[if applicable] Signed by Guest's parent or guardian:____________________________

 

Good wishes for your friendly neighborhood podcasts, true-believers!



[1] For any Western New Yorker lamenting the decreasing number of journalists on the local creative beat, this is a nice antidote.  (BTW...Buffalo/Rochester = WNY.  Syracuse/Rome/Utica = Central NY.  I grew up in Central New York and now live in Western New York, and when this distinction gets blurred, it hurts).

[2] Including two people credited for the theme song.

[3] In my experience, librarians can have a tough time with this one, since they often go above and beyond.  For more on this type of issue, see the "Ask the Lawyer" on LibGuides at https://www.wnylrc.org/ask-the-lawyer/raqs/117.

[4] I realize that these categories overlap, especially these days, but we'll talk about why the distinctions are important.

[5] It's official: I am using a lower-case "p" to write "podcast."  Congratulations, podcast, you've been genericized.

[6] It is also very much an "issue de jeur", since the ALA has joined an amicus brief on the rules in the state of New York for suing non-journalists for publishing content in public fora.  For more on that, search "Coleman v. Grand."

[7] This is a major distinction between a cultural or entertainment piece rather than investigative journalism, since professional reporters generally don't give interview subjects the right to approve a final cut.

[8] In this case, "unauthorized" means without written, signed permission.

[9] If you don't have a lawyer look at any other part, have them look at this.  This is a very bare-bones hold harmless intended to not "scare off" guests; a library should have a clause that matches the level of risk it is prepared to take.

Tags: Broadcasting, Copyright, Disclaimers, Policy, Public Libraries, Templates

Topic: Book Challenges and Records Retention - 02/11/2022
In a local school district, multiple books have been challenged recently. This week, the School Bo...
Posted: Friday, February 11, 2022 Permalink

MEMBER QUESTION

In a local school district, multiple books have been challenged recently. This week, the School Board received an email from a community member referencing record keeping for library materials and electronic records retention. The district Superintendent wants to make sure that the district is keeping the right kind of library records, and that they are keeping them for the legal amount of time. Attached are two documents to review. In the first document titled District Records, under #15, it advised that districts should keep a list of book lists and school library reports. With this, should the district have kept a list of all books in their libraries in any given year?

WNYLRC ATTORNEY'S RESPONSE

In speaking to different libraries about being prepared for book challenges, I have repeatedly stressed one very important element: have your policies ready.

This question shows the depth of consideration that goes into that simple requirement.

In this case, that "depth" is found in the rocky chasm of the LGS-1, New York's end-all, be-all rules for public document management.  Need to know how long to keep records for a bingo game authorized by a village?[1]  Or how long to keep a record of exhumation?[2]  Or how long we hang onto bridge inspection records?[3] It's all in the LGS-1.

The documents the member references are sections of the LGS-1.

They look like this:

Screenshot of Local Government Schedule (LGS-1) referring to School District Records.  Please refer to links in the footnotes for a text based copy of the schedule.

and

Screenshot of Local Government Schedule (LGS-1) referring to School District Records.  Please refer to links in the footnotes for a text based copy of the schedule.

Looking at these requirements, the member's question is: "[S]hould the district have kept a list of all books in their libraries in any given year?"

The answer is: MAYBE, but not DEFINITELY.

Here is why:

The first section referenced by the member, at first blush, looks like it requires the retention of "book lists" for six years.  But examining that precise section, you will see the requirement is limited to records submitted prior to the "consolidation of school districts." 

So, outside of a district consolidation, section LGS-1 15, does not require compiling a list of books.

The next sections, LGS-1 598 and 599, refer to a school district maintaining records related to a "Catalog of holdings" and "Individual title purchase requisition," respectively.

We'll tackle 598 first.

598 requires that a "Manuscript or published catalog" of "holdings" must be retained "permanently."  It then requires that a "Continuously updated catalog" be retained until it is "superseded" or "obsolete."

This means that a district library's "catalog of holdings" that exists in a static form (like a print or PDF list) must be retained permanently, but a list of holdings that is ever-changing (like an ILS) is only retained until it changes form--or that form stops being useful.[4]

In practical terms, this does mean that if the library produces a static list (in print or electronic form), it must be retained forever.  That obligation, however, does not obligate the library to create such a list in the first place.  Meaning, in other words: if the library only uses an ever-changing catalog, it doesn't need to retain any particular copy.

This brings us to 599, which requires that an "[i]ndividual title purchase requisition" (the documentation showing a school library bought a book) must be retained for one year.

Again, in practical terms: while per 598, a school library is not obligated to compile a printed list showing that "Not All Boys are Blue" is in its library's collection, per 599, it does have to retain (and produce, if not otherwise accessible through FOIL) a school’s requisition to purchase "Not All Boys are Blue" if requested.

This gets more interesting as one considers that LGS-1 600 (also seen in the purple-bordered excerpt above), regarding "Records documenting selection of books" sets no minimum retention period.  Meanwhile, LGS-1 601, regarding "Library material censorship and complaint records" mandates such records be retained for at least six years (and encourages considering saving them for much longer, which strikes me as a good idea).

The upshot of these various rules creates a regime where a district is empowered to pick and choose, to some degree, what records it wants to create...but once created, imposes a very particular set of parameters for retaining, purging, and disclosing them.  This is why my answer to the member's question must be so ambiguous.

It is also why it is very important that a district have a well-developed policy on this issue.

Below are some examples of what, depending on the records a district elects to create, a district can say in answer to the question: "I want to make sure I approve of all the books my taxes paid for this year.  Can I have a list of all the books?"

[If the library maintains a published list and wants to be friendly.] "Sure thing.  We compile and publish a list of books in our collection every year as of the first Monday of September.  Do you want the one showing all the books in one particular library, or all the books in the district?"

[If the library doesn't maintain a published list, but has a continuously updated catalog, feels friendly, and allows access to library computers.] "No, we don't publish such a list.  But we do have a continuously updated catalog you can search on this terminal."

[If the library doesn't maintain a published list, has a continuously updated catalog, doesn't allow just anybody access to its computers, but feels somewhat helpful.] "No, we don't publish such a list.  But we do have a continuously updated catalog you can request a copy of."

[If the library doesn't maintain a published list, doesn't allow access to computers, and doesn't feel helpful, but does feel puckish.] "No, but if requested, we can supply you with a copy of every book requisitioned last year."[5]

[If the library doesn't maintain a published list, and doesn't want to offer alternative ways to share the information.] "No, we don't have that."

[If the library doesn't maintain a published list, and is okay risking a spat.]

"No."

Optional rider to all the above answers: "Here is a copy of our FOIL policy so you know the process for requesting our public records through our FOIL officer, and can be aware of our copying charges and the process for requesting electronic copies."

Now, as any veteran of public relations battles over school district policy knows, there's a time to be helpful, and there's a time to say "no."  I am not endorsing any particular answer, but based on a district's policy, it should know what records it keeps (and doesn't keep), and how people can access them.

From my perspective, if there isn't a need to compile information, it shouldn't be compiled.  Further, FOIL does not create the obligation to compile information if it is not already compiled.  On the other hand, waffling and appearing to dodge the question when concerned citizens are on the hunt for "objectionable material" might not be the best way to fight the battle for intellectual freedom.  "We don't have a list but we have a continuously updated database" strikes me as a glove-slap; it invites a fight...but nevertheless, if accurate, might be a perfectly valid response.

From my high horse over here in law-law land, a district should proceed from the presumption that if a book is in a school library's catalog, it belongs there; this is the stance that supports intellectual freedom, while also setting a good example for the students (but I am not the one who has to deal with angry community members storming a school board meeting).

Regardless of my personal thoughts on the diplomatic aspects of this issue, from the perspective of intellectual freedom, information access, education law, the LGS-1, and the First Amendment, here is what's important: have a sound policy governing 1) how library books are selected; 2) how library books are cataloged;[6] 3) how library books are challenged; and 4) how library books are removed, and follow that policy.

If, as part of that policy, a district has the desire and capacity to create an annual (or decennial, or whatever time span it wants) list of books in the school library catalog, great, but if such a list is created, it must be kept forever.  And if the district only uses a continuously updated library catalog, it should be clear from the policy who can access it, and how (at the school?  By appointment?  Remotely?).  And all of this turns on the district having a designated FOIL officer and process for timely responding to, assessing, and meeting FOIL requests.

So, there is my answer...and I know it rests on a dangerous triangle of law, practicality, diplomacy.   This stuff isn't easy.

I wish you a clear head, a steady heart, and a ready wit as you face whatever challenges come your way.



[1] 8 NYCRR §185.15 (2020); see schedule items 562-564.

[2] 8 NYCRR §185.15 (2020); see schedule item 136.

[3] 8 NYCRR §185.15 (2020); see schedule item 1085.   By the way, it's "6 years after structure no longer in use or inspected features have been replaced," which I find rather terrifying.

[4] Kind of whimsically sad notion: "You are needed, until you change or you aren't needed."  I would love to meet the person who wrote this part of the LGS-1; they had to be a philosophy major.

[5] I don't advise using this one.

[6] Including having a published list, or simply having a continuously updated database.

Tags: First Amendment, LGS-1, Policy, Record Retention, School Libraries, Book challenges

Topic: School Libraries Template for Copiers - 02/11/2022
We were asked about signage to post over the copier at a schools where educational materials are c...
Posted: Friday, February 11, 2022 Permalink

MEMBER QUESTION

We were asked about signage to post over the copier at a schools where educational materials are copied. Below is some template language with footnotes explaining why they say what they do.  Of course, before posting in your school or library, check with your lawyer!

WNYLRC ATTORNEY'S RESPONSE

MAKING A COPY ON THIS MACHINE

MAY BE SUBJECT TO THE COPYRIGHT LAW OF THE UNITED STATES

This means 4 important things:

1.  Copying a copyright-protected work here could be a copyright violation[1].

2.  Copying protected works is sometimes allowed under "fair use."[2]  Our school's fair use policy is posted INSERT.

3.  Copying a copyrighted work to accommodate a disability under the ADA is allowed.   However, to do that, please see the [insert office for disability services] staff, since adaptive copies have special rules,[3] and we want to help you (or a person you are assisting) exercise your rights.

4.   Under the TEACH Act,[4] you may display or perform certain copyright-protected content in class, but that does not allow you to make additional copies for in-class or online instruction.  Please don't make copies that exceed the permission obtained by the school (unless you use our policy to determine it is fair use).

The copy machines are here for your use, and we appreciate your consideration of these laws.

Thanks!

 



[1] 17 U.S.C. 106 reserves the making of copies to the copyright owner.

[2] 17. U.S.C. 107 allows copying under certain circumstances, but simply "educational" or "not-for-profit"  use is not enough.  Read the guide at the link!

[4] Section 110 of the Copyright Act.

Tags: ADA, Copyright, Fair Use, School Libraries, Section 110, TEACH Act, Templates

Topic: Libraries Open to the Public Template for Copiers - 02/11/2022
We were asked about signage to post over the public copier at a libraries open to the public. Belo...
Posted: Friday, February 11, 2022 Permalink

MEMBER QUESTION

We were asked about signage to post over the public copier at a libraries open to the public. Below is some template language with footnotes explaining why they say what they do.  Of course, before posting in your school or library, check with your lawyer!

WNYLRC ATTORNEY'S RESPONSE

MAKING A COPY ON THIS MACHINE

MAY BE SUBJECT TO THE COPYRIGHT LAW OF THE UNITED STATES[1]

This means 4 important things:

1.  Copying a copyright-protected work here could be a copyright violation.[2]

2.  Copying protected works is sometimes allowed under "fair use."[3]  We can't give you legal advice, but if you want to learn more about "fair use," go to https://www.copyright.gov/circs/circ21.pdf or see the [INSTITUTION NAME] Fair Use policy at [LINK].

3.  Copying a copyrighted work to accommodate a disability under the ADA is allowed.   However, to do that, please see the library staff, since adaptive copies have special rules,[4] and we want to help you (or a person you are assisting) exercise your rights.

4. As a library open to the public, there are special circumstances under which we get to make copies (libraries are special).  However, to qualify for that protection, this notice (which we have, by law, placed over the copier right in front of you), has to say what it says in bold at the very top, and we have to operate by this rule:

Any person or group is forbidden to use this machine to engage in the related or concerted reproduction or distribution of multiple copies of the same material, whether made on one occasion or over a period of time, and whether intended for aggregate use by one or more individuals or for separate use by the individual members of a group.

What does that mean? Entire classes should not come here and copy the whole text book for a course![5]  Please don't do that.[6]

The copy machines are here for your use, and we appreciate your consideration of these laws.

Thanks!



[1] This precise language is required by 17 U.S.C. 108 for the library and its employees to be protected against allegations of secondary infringement.

[2] 17 U.S.C. 106 reserves the making of copies to the copyright owner.

[3] 17. U.S.C. 107 allows copying under certain circumstances, but simply "educational" or "not-for-profit" use is not enough.  Read the guide at the link!

[5] This is covered by 17 U.S.C. Section 108(f).  Section 108 also lets libraries make copies for other uses...but that is for libraries, not regular people or students using a copier in a library.

[6] Seriously, if we see you doing that, we have to ask you to stop.

 

Tags: Academic Libraries, ADA, Fair Use, Policy, Public Libraries, Section 108, TEACH Act, Templates

Topic: Current COVID safety measures for NYS employers - 01/12/2022
It's January 6, 2022, and I am trying to pinpoint what libraries are obligated to do for emplo...
Posted: Wednesday, January 12, 2022 Permalink

MEMBER QUESTION

It's January 6, 2022, and I am trying to pinpoint what libraries are obligated to do for employees with regard to COVID safety measures.  Are employers still required to provide safety implements such as masks to their employees and encourage social distancing? What about providing testing kits at no cost to employees? There is so much information that it's overwhelming and while https://forward.ny.gov/ is helpful, there is a lot to sift through.

WNYLRC ATTORNEY'S RESPONSE

Here we are in January, 2022, and frustratingly, there is no ONE right answer to this question.[1]  Between OSHA, CDC, WHO, and NYSDOH, together with state-wide and local Executive Orders and states of emergency, the answer to this question is a big, tangled web.

That said, there are THREE things I can say for certain, and they do answer this question:

1.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums that are operating in any way should be doing so per a written and routinely updated Safety Plan.[2]

2.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums operating under a Safety Plan that involves use of PPE and sanitization supplies should provide that equipment.[3]  Libraries relying on social distancing should continue to demarcate areas where it must be maintained.

3.  Regardless of what Emergency Order, law, or regulation is in effect, libraries and museums operating under a written Safety Plan that involves employer-required testing must provide those tests.[4]

Again: while different laws, regulations, and orders create these three obligations, I can say that they remain.

After that, I can only say: when updating Safety Plans (which should either be done, or ruled out, monthly, and ad hoc as guidance changes), libraries should confirm their obligations with either their lawyer or their local health department.

For libraries looking for a model, a good place to start is the HERO Act template found at  https://dol.ny.gov/system/files/documents/2021/09/p765-ny-hero-act-model-airborne-infectious-disease-exposure-prevention-plan-09-21_0.pdf.  For municipal libraries that operate largely in conjunction with their municipal government (sharing HR policies, hazard response plans, etc.), it might be appropriate to look to their municipality's mandated[5] "Public Health Emergency Operations Plan."

I realize this doesn't eliminate the need to swim in the alphabet soup of authorities offering different, and sometimes divergent, guidance.  But by relying on your local health department to confirm obligations, hopefully a library can focus more energy on its mission to serve its community...while also demonstrably living up to its duty to safeguard its workforce.

 



[1] I can supply lots of answers, just not a one-size-fits all one.  Whether it's OSHA,  the NY HERO ACT, or currently  suspended federal mandates, 

[2] While different laws and regulations will govern the written plan, this is true for both private and quasi-governmental entities.

[3] While different laws and regulations will govern this obligation, this is true for both private and quasi-governmental entities.

[4] Examples of "employer-required testing" are:  random tests of the workforce, required routine tests for those not vaccinated, and any  other required testing built into an  Employer's Safety Plan.  Tests required by CDC, NYDOH, and local health department statements, such as the current recommendation by  the CDC for fully vaccinated, asymptomatic people to test 5-7 days after a known exposure, are not "employer-required."

[5] By New York Public Health Law Section 27-c.

 

Tags: COVID-19, HERO Act, Management, Policy, Safety Plan

Topic: Accessibility options for school ebooks - 01/05/2021
Students in a school are reading a simultaneous use eBook. The students with IEPs[1] have access t...
Posted: Tuesday, January 4, 2022 Permalink

MEMBER QUESTION

Students in a school are reading a simultaneous use eBook. The students with IEPs[1] have access to a screen reader but this feature is very robotic and doesn't meet their needs. The school librarian and the School Library System searched for an audio version of this book but could not find one for purchase. Several students need a high-quality audio version of the book that is not robotic because of their learning needs. Would the school library be covered under fair use if they recorded a reading of the book for the students and posted it in Google Classroom for the students? This would be in a closed platform and not open to everybody on the internet.



[1] IEP stands for "Individual Education Program, “which is a tool used in elementary and secondary schools to effect ADA accommodations for students.  For more info on that, see https://www2.ed.gov/about/offices/list/ocr/504faq.html.

 

WNYLRC ATTORNEY'S RESPONSE

The school may be covered by Fair Use but for this scenario, it doesn't need to be in order to make the recording proposed by the member.

Why?

Because Section 121 of the Copyright Act allows "authorized entities" (like schools serving those with IEP's)[1] the right to make a copy in an "accessible format" (like an audio file) for "eligible persons" (like a student with an IEP), without it being an infringement.

Of course, there's always a catch.  In addition to precautions like the one described by the member (limiting access to only those who need it), the exception under Section 121 has other requirements, such as:

  • The accessible copy has to have a copyright notice.
  • The accessible copy has to have a note stating no further copies are authorized.
  • It doesn't apply to computer programs.[2]

I am putting a copy of Section 121, which was most recently amended in 2018, below this answer, so members can review its requirements and consider how it might apply in their institution.

Now, I will say that if there wasn't a Section 121, there is a strong chance the format conversion described by the member would qualify as a Fair Use.  In fact, the 2nd Circuit Court of Appeal, which is the first level of appeal for copyright cases in New York State, has found Section 121's to bolster educational institutions' claims of Fair Use.[3]

But between a rock-solid exemption like Section 121, and a shifting, 4-part formulaic one like Section 107 ("Fair Use"), I say: go for the rock-solid exemption. 

The law takes assured access for those with disabilities seriously, and that regard is important to strengthen through robust and repeated use.

Thanks for a valuable and carefully thought-out question.

 

Here is the full text of section 121:

(a)

Notwithstanding the provisions of section 106, it is not an infringement of copyright for an authorized entity to reproduce or to distribute in the United States copies or phonorecords of a previously published literary work or of a previously published musical work that has been fixed in the form of text or notation if such copies or phonorecords are reproduced or distributed in accessible formats exclusively for use by eligible persons.

 

(b)

(1)Copies or phonorecords to which this section applies shall—

(A)  not be reproduced or distributed in the United States in a format other than an accessible format exclusively for use by eligible persons;

(B) bear a notice that any further reproduction or distribution in a format other than an accessible format is an infringement; and

(C) include a copyright notice identifying the copyright owner and the date of the original publication.

(2)The provisions of this subsection shall not apply to standardized, secure, or norm-referenced tests and related testing material, or to computer programs, except the portions thereof that are in conventional human language (including descriptions of pictorial works) and displayed to users in the ordinary course of using the computer programs.

 

(c)

Notwithstanding the provisions of section 106, it is not an infringement of copyright for a publisher of print instructional materials for use in elementary or secondary schools to create and distribute to the National Instructional Materials Access Center copies of the electronic files described in sections 612(a)(23)(C), 613(a)(6), and section 674(e) of the Individuals with Disabilities Education Act that contain the contents of print instructional materials using the National Instructional Material Accessibility Standard (as defined in section 674(e)(3) of that Act), if—

(1) the inclusion of the contents of such print instructional materials is required by any State educational agency or local educational agency;

(2) the publisher had the right to publish such print instructional materials in print formats; and

(3) such copies are used solely for reproduction or distribution of the contents of such print instructional materials in accessible formats.

 

(d)For purposes of this section, the term—

(1) “accessible format” means an alternative manner or form that gives an eligible person access to the work when the copy or phonorecord in the accessible format is used exclusively by the eligible person to permit him or her to have access as feasibly and comfortably as a person without such disability as described in paragraph (3);

(2) “authorized entity” means a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities;

(3)“eligible person” means an individual who, regardless of any other disability—

(A) is blind;

(B) has a visual impairment or perceptual or reading disability that cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or

(C) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would be normally acceptable for reading; and

(4) “print instructional materials” has the meaning given under section 674(e)(3)(C) of the Individuals with Disabilities Education Act.



[1] The literal definition of "authorized entity" is "a nonprofit organization or a governmental agency that has a primary mission to provide specialized services relating to training, education, or adaptive reading or information access needs of blind or other persons with disabilities."  The only case law construing this language interprets it to include educational institutions with obligations to provide ADA access.  For more on that, see footnote #4.

[2] An eBook is not a computer program.

[3] In the 2014 Hathi Trust case (Authors Guild, Inc. v Hathi Trust, 755 F3d 87 [2d Cir 2014])), the court opined that an academic library could qualify for 121's exemption because of its obligation to provide access under the ADA.  This was bootstrapped into an allowance for Fair Use, too.  It's not the smoothest finding, but it's there, and it’s the only line of cases citing 121 as of December 19, 2021.

Tags: Accessibility, Accomodations, Copyright, Digital Access, Fair Use

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