RAQs: Recently Asked Questions

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

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.