RAQs: Recently Asked Questions

Topic: Requirements for public access to SUNY libraries - 7/27/2020
[Submitted from a SUNY Library] (1) What are the requirements for a SUNY library to provide acce...
Posted: Monday, July 27, 2020 Permalink

MEMBER QUESTION

[Submitted from a SUNY Library]

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?
(2) Are their specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?
(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?
(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

WNYLRC ATTORNEY'S RESPONSE

This is a deep array of questions, requiring a deep array of answers.

But let’s start with the basics.

There are 64 SUNY campuses, some with more than one library.

What’s cool about these libraries?  They aren’t just collections of books on a campus, but distinct entities within their institutions, governed by the body of laws that apply to all libraries in New York, as well as the law that is SUNY-library specific.

The “SUNY-library specific” law is Education Law 249-a, which states:

The state university trustees and the board of higher education of the city of New York are hereby authorized to establish such rules and regulations as may be necessary and appropriate to make provision for access and use by the residents of the state of the libraries and library facilities of the public institutions of higher education under their respective jurisdictions.

In other words: SUNY and CUNY have libraries, and the boards of SUNY and CUNY can set those libraries’ rules, including the rules governing access.

SUNY’s[1]  board has established “such rules” by, among other things, adopting a policy on “Public Access to SUNY Libraries[2]  which states:

It is the policy of the State University of New York (University) that the public is given access to University libraries insofar as possible. Since implementation of this policy has fiscal and administrative implications, campuses may extend the facilities of their libraries to the public whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.

 

What does this mean for public access to those libraries?

State law gives SUNY broad authority “to establish such rules…for access and use by the residents of the state.” SUNY then uses that authority to develop a policy requiring “that the public is given access to University libraries insofar as possible.”  BUT, after asserting that broad goal, SUNY allows individual campuses to tailor that access based on the “fiscal” and “administrative” considerations of individual institutions.  So while access to the public is the stated goal, the conditions for access are really up to the individual libraries (and the academic leadership they report to).

I tooled around a few SUNY library web sites (I couldn’t resist the Charles B. Sears Law Library at SUNY Buffalo, my alma mater), and each have their own unique conditions for giving the public access.  Some make it easier to find that information than others.  I saw a range of conditions for access…anecdotal evidence that the libraries are using the latitude granted to them by SUNY policy.

And with that background established, I’ll answer the questions.

(1) What are the requirements for a SUNY library to provide access to the general non-campus community/public (those outside staff, faculty, students)?

While the law only goes so far as to “authorize” SUNY to provide for public access, SUNY-wide policy is that “the public is given access to University libraries insofar as possible… whenever it can be done and in a manner that is both fiscally sound and consistent with their primary educational mission.”

So my answer to the first question is: based on SUNY policy, public access to a SUNY library must be provided insofar as possible, provided the use by the public doesn’t interfere with the use of the students and faculty, and the burden of public use doesn’t throw off the budget.[3]

(2) Are there specific requirements/repercussions academic libraries should be aware of in regards to public access or prohibiting public access?

Absolutely, there are requirements and potential repercussions for access to libraries at state institutions.  I could write an entire book on them (and I bet someone has[4]), but here is my quick summary:

  • Requirement: develop budgets, staffing plans, and operational policies that ensure the public is given access to University libraries “insofar as possible.”
  • Requirement: in coordination with Campus Safety or Campus Police, develop a process to address the most serious public patron behavioral concerns. 
  • Requirement: develop a privacy policy regarding the rights students, employees, and public patrons have under CPLR 4509.
  • Repercussion: be ready to address civil rights concerns related to the library’s status as a public institution.

(3) What are the Section 108 repercussions for not allowing public access, specifically related to the pandemic? Would libraries still be protected if they provide public 'access by appointment' only? Would "temporary" non-public access still allow for application of the 108 exceptions?

For readers not familiar with it, “Section 108” is the portion of the Copyright Act, which gives special exemptions from infringement to libraries and archives that are open to the public.

Section 108 does not go into great lengths regarding what the requirement “open to the public” means, but some insight can be gained from how it handles access to special collections closed to the general public; such collections qualify for Section 108’s protection so long as they are open “to other persons doing research in [that] specialized field.”  So it is clear that “open to the public” is not intended to be a carte blanche free-for-all.

The current pandemic and SUNY’s efforts to combat it will certainly impact SUNY libraries’ ability to be “open to the public.”  However, I feel confident writing my conclusion that any institution that temporarily restricts all patron access will not be found to have not meet the requirements of section 108.  And I feel just as confident saying that scheduled visits by appointment—if that is what a SUNY library needs to do to ensure safety—would not cause a 108 concern, either.[5]

That said, I cannot feel the same confidence for any Safety Plan that completely and utterly removes all public access.  Public access, even if severely restricted, must still be a component in order to meet the requirements of 108.

(4) Can a SUNY library deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety?

Broadly and boldly speaking: yes.

BUT.

As discussed at the beginning of this answer, the law of the state of New York and the policies of SUNY give a great deal of latitude to libraries on a campus-by-campus basis.  Different campuses exercise this latitude in different ways.  This means that while the library in one SUNY location may be operating per a Safety Plan confirmed by a central coordinator, another library may be given a directive to develop their own. 

Or, as (former[6]) SUNY Chancellor Kristina M. Johnson put it:

We understand that…each of our campuses is a complex ecosystem with regular engagement with their respective surrounding communities.

Within those different plans will be different solutions for the safe operations of different sites.  Some of those plans will call for masks, because masks will be the only way the planned operations will be able to be conducted safely.  Other plans may only include modified operations that may be performed safely without masks.  And of course, any plan requiring a mask will include the proper ADA accommodations information for those who are not able to wear one.

While the country has watched as some people challenge the requirement to wear PPE on the basis of civil rights, a limited requirement to wear a certain type of protective gear for a narrowly tailored purpose with a general application is not likely to be found a violation of the First Amendment. But of course, when it comes to civil rights, the devil is often in the details.  If, for instance, only a certain type of facemask was required, and that facemask type did not work well with a certain body type, or the need to wear a hijab, it is possible that could trigger an ADA or First Amendment claim. The guidance being assembled by the Center for Disease Control and the Occupational Safety and Health Administration takes into account the diversity of bodies and identities that Safety Plans will need to serve. By using properly credentialed resources and thinking through Safety Plans from multiple perspectives, a SUNY library should be positioned to deny entry to students/faculty refusing to wear a mask in the facility if it's justified in the interests of health and safety.

Last note

In responding to these questions, I am mindful that general legal services are provided to SUNY institutions through the office of the NY State Attorney General, and many campuses have lawyers on staff. Therefore, to the greatest extent possible, any SUNY library, department, center, school, college or university finalizing a Safety Plan should take care that whenever possible, coordinated guidance from SUNY’s recognized legal advisers is incorporated. (Very often, this will have been done at the level where the institution is planning its emergency response.)  I am always gratified when a SUNY lawyer, or another lawyer, calls me to discuss my work for libraries, and I welcome those calls.[7]

As of this date (June 26, 2020) I have found no publicly accessible model safety plan or guidance from SUNY HQ with regard to the resumption of operations.  Rather, the SUNY page for COVID questions shows that the State University of New York is very much in an assessment and response mode, and the SUNY Library Consortium’s page shows that plans are still in development.[8] I am sure that will change as the situation evolves, and I encourage people to be attentive to that page, and their own administrations, for further specific guidance.   At the same time, since no one knows a library better than the librarians who works at it, I encourage pro-active assessment and formulation of access and safety plans by library leadership, informed by the people who work and study there.

This guidance was assembled directly from available materials, and while not legal advice, it is consistent with published SUNY materials and the law.  I hope it is helpful to SUNY libraries as you consider the continuation of your operations.

Thank you for a great array of thoughtful questions. I wish our SUNY libraries much health and strength for the days ahead.

    



[1] The rest of this answer will focus on SUNY, since that is the focus of the member’s questions.

[2] Found on June 8, 2020 at https://www.suny.edu/sunypp/documents.cfm?doc_id=330 and not to be confused with the “Open Access To State University Libraries” policy found that same day at https://www.suny.edu/sunypp/documents.cfm?doc_id=329.

[3] Having sat through budget meetings of all types as a student leader, journalist, academic administrator, and lawyer, I realize that the words “fiscal” and “mission” can be applied to many divergent ends.  Let’s not go there, this is about the law.

[4] I will ask my paralegal Jill to research this question and alert me if she finds one.  If she does, we’ll update this footnote.  Otherwise, you’ll know we didn’t find one.

[5] I am punting on the very practical consideration of the recent Supreme Court ruling regarding sovereign immunity, which arguably positions SUNY to not be very concerned about qualifying for protection under 108.  I am punting because, as the court put it, I am sure SUNY does not want to be seen as a “serial infringer.”  For more on that, see https://www.scotusblog.com/case-files/cases/allen-v-cooper/

[7] (716) 464-3386

[8] This is not a criticism. A good plan takes time. And no plan other than a good plan should be implemented.

Tags: Academic Libraries, COVID-19, Emergency Response, Reopening policies, Section 108, Public Access, SUNY

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