A school district public library is considering installing closed-circuit cameras and thinking of enabling sound recordings, too. Is it legal to record sound, thinking it is a violation of patron privacy? Can board members review the tapes?
The answer to these highly specific questions will assume readers have reviewed the ALA's excellent general guidance at https://www.ala.org/advocacy/privacy/guidelines/videosurveillance and the "Ask the Lawyer" guidance here: https://wnylrc.org/raq/patron-privacy-and-police.
With that background taken as read, let's address these questions related to a closed-circuit camera with audio recording at a school district public library:
Is it legal to record sound [and/or] it is a violation of patron privacy?
In New York, recording third parties without their permission is illegal "Eavesdropping" per Penal Law Section 250.05: a class E felony.
Section 250.05 is part of Penal Law Article 250 "Offenses Against the Right to Privacy," so from both the legal and ethical perspective, such recording is a violation.
Can board members review the tapes?
Assuming the tapes are visual only (and not illegal Eavesdropping), from the legal perspective, a board member could view a security camera recording, but from the ethical and risk management perspective, such viewing should only be per an established policy.
How does this all play out in the real world?
A non-association library board in New York State considering use of a security camera system should ensure such a system is only used once there is a policy in place, and that policy should address the following questions:
- What is the purpose of the cameras?
- Where are the cameras pointing?
- How does the library ensure use of them is consistent with applicable ethics?
- Are any of the generated recordings patron library records?
- How long are the recordings kept for?
- Once the retention period is past, how are the recordings disposed of?
- How are the records secured against data breach or misappropriation?
- Who gets to view the recordings, and why?
- How will FOIL requests for the footage be handled?
- How will other requests for the footage be handled?
- When the library deems it necessary to retain recordings past their retention term, how are the recordings saved?
- Will any of the records be archived?
Below is a template policy for a non-association public library addressing the above questions. Areas in yellow may be customized for the needs of a particular library (make sure you remove the footnotes).
Thank you for an important array of questions.
NAME Library Policy Regarding Use of Security Cameras and Recordings
Adopted by the board on: DATE
Position responsible for coordinating compliance: Director
Reviewed by the board: Annually
To achieve the desired balance user privacy assurance and on-site security, any use of security cameras and of records generated by such cameras ("Security Recordings") in the Library will follow the below provisions.
A. Limited Use
Cameras will be used to generally monitor the areas noted on the floor plan or survey attached as "A."
Cameras will never be used to monitor the following: [insert specific areas or angles to affirmatively be excluded; common examples are bathrooms, reference desk, check-out desk].
Cameras will be set up so they do not record the content of media accessed by patrons.
In all areas subject to security camera recording, the Library will post a sign: "The Library values patron privacy and security. This area is monitored by security cameras."
C. Patron Records
Security Recordings showing people are considered to be patron records and the Library will not release such recordings to third parties without a court order or subpoena.
D. Viewing and Use of Security Recordings by the Library
The Library will use Security Recordings to address general and specific security needs, including but not limited to:
- Assessing safety concerns
- Addressing Code of Conduct-related incidents
- Assessing operational and facility needs
When footage must be reviewed by the Library, such review must be authorized by either the Library Director or by a resolution of the Library’s Board of Trustees.
When a Security Recording must be retained past the period set by Section G of this policy, for any reason, the basis and plan for the retention must be authorized by either the Library Director or by a resolution of the Library’s Board of Trustees.
E. FOIL Requests
Request for Security Recordings generated at a particular date and time shall be evaluated by the Library per its FOIL policy.
In keeping with the applicable laws, Security Recordings featuring Library users shall not be made available in response to FOIL requests.
F. Warrants, Subpoenas, Litigation Hold
Requests to disclose copies of or to retain Security Recordings per a warrant, duly issued subpoena, or "litigation hold" demand will be evaluated by the Library Director or designee with advice of legal counsel as needed.
G. Retention & Data Security
The Library retains Security Recordings for [period decided by Library], unless a specific segment is required to be retained for operational purposes, in which case, such segment is retained for three (3) years as required by the Retention and Disposition Schedule for New York Local Government Records.
The Library may also identify certain footage it decides is worthy of being retained in permanent archives.
H. Budget and Capacity
The board shall no less than annually review of the budget and operational capacity needed to assure that the retention, disposal, and security of Security Recordings may remain as required by this policy.
 Very often, the "type" of public library is directly relevant to a legal question. In this case, while there could be some overlap (especially if the library operates on district-owned property, or the library is covered by the sponsoring district's security), the type of public library does not impact the legal analysis.
 The actual wording of what is illegal is "intentional overhearing or recording of a conversation or discussion, without the consent of at least one party thereto, by a person not present thereat, by means of any instrument, device or equipment." This wording is from the "definitions" (in this case, of "Eavesdropping" in Penal Law Section 250.00)
 POLICY DRAFTING TIP: This can be further delegated but should not be a board responsibility.
 POLICY DRAFTING TIP: You don't need to use a map or floorplan, but I find it handy.
 POLICY DRAFTING TIP: This can reflect the tone your library wants to take on this issue and can change from location to location within the library.
 POLICY DRAFTING TIP: There is no law stating that security footage showing use of a library is a "library record," so a library can also decide that it is NOT a library record. That said, defaulting to a firm and broad stance on privacy of library records is always a good idea and positions a library to reject a generalized request for security camera footage on the very sensible basis that doing so would violate the privacy of those in the recording.
 POLICY DRAFTING TIP: This can be done only by the Director, or only by resolution of the Board, but should NEVER be accomplished via the authorization of one board member, since trustees act as a body, not as individuals.
 POLICY DRAFTING TIP: See footnote 6. This section can only remain if the library has decided that security recordings with library users in them is a private library record.
 POLICY DRAFTING TIP: A "litigation hold" is when a library receives a demand to hold possible evidence. They are usually sent by law offices and the "RE" line usually contains the phrase "litigation hold" or "duty to preserve evidence." If your library gets one, this is a good thing to review with your lawyer!
 POLICY DRAFTING TIP: I included this so that the library is continually reassessing if the security system has changed and if the employees need more support for retention, destruction, or making copies of recordings.