Submission Date:
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!
Answer:
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!
(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!
[5] See NY Education Law 260-a, and "Ask the Lawyer" ‘Posting recorded meetings under Open Meetings Law’, and ‘Trustee Addresses for Open Meetings’.
[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.
