Does a contractor have to comply with FOIL request if they are contracted to a county government?
We have a [person] requesting information about a Security Guard who is a Contract Employee (employed by another government entity). All I know is the Guard's 1st name- which is on no paperwork we have. I have already told the requestor that the Guard is employed by an outside company. We are [REDACTED] County government and contract through [REDACTED Other Public Agency] - What do we have to do legally?
New York's Freedom of Information Law, or “FOIL”, applies to government agencies (including public libraries) but cannot be used to compel private companies (or individuals) to allow inspection or copying or records.
So, in the scenario described by the member, the private company employing the guard is not subject to FOIL, but the library is, as is the county, so information about the security company can be accessed.
Of course, that doesn't mean a person gets everything they might want, but it does mean that information about private companies working for public entities can be accessed.
We'll talk about this in more detail, but to illustrate my point, here is a short, one-act play:
CITIZEN (to security guard at public library): Who are you?!?! The Power of FOIL compels you!
SECURITY GUARD: Well, as you can see on my ID, my name is Phil. But I am not subject to FOIL. Ask my boss.
CITIZEN (to Phil's private employer, whose company name and logo are on the ID): Who is that guy "Phil"?!? What's his last name and his qualifications?!? What does he get paid a year?!? The Power of FOIL compels you!
PRIVATE SECURITY COMPANY: We're so glad you like Phil! We do, too. Unfortunately, we are not subject to FOIL, and we don't provide information about private employee to third parties.
CITIZEN (to the library): Your private security company is hiding information! Tell me everything about Phil! EVERYTHING!!! The Power of FOIL compels you!
LIBRARY (answering within 5 days): Your request is a bit broad, but we do have records relating to how we arranged the services of a security company through the County. Would you like to inspect those records, or be provided with copies?
CITIZEN (to the county): I don't just want to know "the arrangement," I want to know about Phil, the actual guy providing security at the Library! Give me all the information you have on him!!! The Power of FOIL compels you!
COUNTY (replying within 5 days, and helping to narrow down the request): We are not quite sure what you're asking for, but we can definitely provide information about the security company. Do you want just the contract, or the complete procurement process, including their proposal?
Of course, in this (hopefully fictional) scenario, the citizen asking for the information might not be able to get (such as what "Phil" is making per hour, or Phil's address, or Phil's resume). But if the information the person is really hoping to access falls into the accessible materials held by an entity subject to FOIL (like a county or a public library), they will hopefully get what they need.
Unfortunately, we live in a world where many times requests under FOIL can be perceived as aggressive. And sometimes the FOIL request is clearly being made by a person with an axe to grind.
That's one of the many prices, to be cheerfully paid, of living in a democracy. Good government thrives on transparency, and prompt disclosures show respect for the public, as well as competence.
In my experience, the best way for an entity subject to FOIL to de-escalate any hostility accompanying a FOIL request is to:
All of the above-listed bullets can be achieved through a policy that sets out the proper timelines and procedures for following the law.
The great thing about a FOIL request being submitted to a library is that if there is one thing librarians know how to do, it's how to help people find information. So, unlike other "agencies" subject to FOIL, where records management and disclosure can be perceived as a hassle, in some ways, fulfilling a FOIL request is just business as usual: enable access.
The below "Template Public Library FOIL Policy" is based on the model policy supplied by the New York State Committee on Open Government (the COOG), found at https://opengovernment.ny.gov/freedom-information-law. Since it is right from the COOG (with a few added bells and whistles from me), it checks all the boxes on mandatory reply times, providing copies, and how to reply to a request.
Having a policy, and a posting a summary setting out how to request a library record under FOIL, is a good way to diffuse any tension underlying a FOIL request.
As with any template, before a public library's board passes a version based on this one, it is best to have it reviewed by your library's lawyer.
NAME Public Library FOIL Compliance Policy
Date adopted: INSERT
To be posted at: INSERT
Position primarily responsible for coordinating compliance: INSERT
Records Access Officer: INSERT
FOIL Appeal Officer: INSERT
Position Responsible for annual check of Subject Matter list: INSERT
Review annual at the MONTH meeting by the Trustees to ensure familiarity, compliance, and budget support.
Appendix: Model FOIL Notice for posting
Related policies: Record Retention Policy
Section 1: Purpose and scope of this FOIL Compliance Policy:
The NAME Library (the "Library") believes in the right of the People to know the process of decision-making and to have access to the documents and information underlying the operations of the Library.
In addition, a part of the mission of the Library is to enable access to information the public is entitled to.
To that end, the Library shall furnish to the public the information and records required by the Freedom of Information Law, using this policy to enable, effect, and document such compliance.
Section 2: Designation of Library Records Access Officer:
Job title or name: _____________________________________________
Business address: _____________________________________________
Email address: ________________________________________________
Section 3: Location
Records shall be available for public inspection and copying at:
Section 4: Hours for public inspection:
Requests for public access to records shall be accepted and records produced during all hours the Library is regularly open for business, however, timing of fulfillment will be impacted by staff capacity.
Section 5: Requests for public access to records
Section 6: Subject matter list
Section 7: Denial of access to records
Title or position: ____________________________________________
Address for FOIL purposes:___________________________________
Section 8: Fees
Section 9: Public notice
A notice containing:
shall be posted in a conspicuous location in the Library, and on the Library website at ADDRESS.
Section 10: Severability
If any provision of these regulations or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of these regulations or the application thereof to other persons and circumstances.
NAME Public Library FOIL Compliance Public Notice
Date adopted: INSERT
To be posted at: INSERT
Position primarily responsible for coordinating compliance: INSERT
Records Access Officer: INSERT
FOIL Appeal Officer: INSERT
Position Responsible for annual check of Subject Matter list: INSERT
Review annual at the MONTH meeting by the Trustees to ensure familiarity, compliance, and budget support.
Appendix: Model FOIL Notice for posting
Related policies: Record Retention Policy
YOU HAVE A RIGHT TO SEE YOUR LIBRARY'S PUBLIC RECORDS
The amended Freedom of Information Law ("FOIL"), which took effect on January 1, 1978, gives you the right of access to many public records, including many of those related to the operation of your public library.
Records related to the Library, if not considered exempt from FOIL, can be seen and copied at:
The following Library employee(s) will help you to exercise your right to access:
Library Records Access Officer(s)
If you are denied access to a record, you may appeal to the following person(s) or body:
 I personally have ground down at least three metaphorical axes, making FOIL requests over the years.
 These will be different people/groups.
 LGS-1 is the NYS Archives Retention and Disposition Schedule for New York Local Government Records and can be found at: http://www.archives.nysed.gov/records/local-government-record-schedule/lgs-1-title-page
As part of a town bicentennial celebration, the committee wants to create a map of historic properties. There would be a description of the property noting its historic significance, the address, and ideally a photo. Many of the properties are privately owned. Do owners need to give permission for their property to be included? We would publish the address and describe the history of the property, but current owners' names would not be disclosed. We want to share history, but respect privacy. What legalities should we be aware of?
In addition to being something of a historic preservationist, I am also a design fan, and a booster for my adopted hometown of Buffalo NY. This means I am on several social media groups that discuss:
On these groups, there is regularly a debate about the legalities, ethics, and diplomacy of taking pictures, providing information, and commenting in a public forum about privately owned property.
Issues that are frequently raised include:
The issue can also take on tension if a person lives in a home they prefer to not have considered "historic," which can place added pressure and actual legal restrictions on the owner of the home.
On the flip side, many who proudly own "historic" or otherwise noteworthy properties glory in their building's appearance and history. These are people who not only want their structure listed in print and online resources, but carry a jump drive they can distribute easily to make sure the building is described properly.
When it comes to the risks of listing historic properties in a printed or online resource, there are very few direct legal issues. With the exception of certain high-security locations, it is not illegal in any way to publish information related to real property, its ownership, and its historic nature (or other significant factors). In fact, although not everybody realizes it, such information is generally available to the public in the form of tax maps, real property deeds, and other information housed by a county clerk.
That said, and in answer to the member's question, legal concerns can arise if a resident or owner can attribute negative consequences directly to the listing. For instance, if a listing suggests that a property is open to the public, when in fact it is not open, a property owner could have legal recourse. Similarly, if a write-up is directly connected to resulting harassment or vandalism, there could be an allegation of legal responsibility--although such allegations would not lead to liability unless a precise set of factors were present.
The stakes can also be higher when the listing is the result of a formal publication by an actual entity, such as a local library, historical society, religious corporation, or not-for-profit corporation. This is because such organizations typically have a larger platform to communicate from, and are also perceived as having "deep pockets," as well as insurance. They are also more vulnerable to public criticism, since they depend on public good will.
How can an organization mitigate such risk? Here are three steps:
Step 1. If your organization is going to publish a guide, check with the organization's insurance carrier to see if its insurance includes coverage for "advertising injury" and other claims related to publication. While not every "general liability policy" has this feature, it is a fairly common type of coverage, and any group that is regularly publishing brochures or pamphlets--or even listing information on its website--should consider getting coverage for allegations of defamation and copyright infringement.
2. Early in the initiative, decide what the precise criteria is for inclusion in your directory, and if your directory of local historic properties will have an "opt out" for people who don't wish their property to be listed or depicted.
3. Once the criteria and any option for "opt out" is determined, consider using a form to notify people of the directory, and to allow people to supply information about their property or to opt out. For instance:
[Info about your organization, upcoming event, pleasantries, etc.]
The NAME is preparing a directory of local historic properties, including your historic property at ADDRESS.
The criteria for the listing in the directory are INSERT. The listing will include the address, a photo taken from the street, and a brief history of the property. We will ensure there is no automobile with a legible license plate or people in the image.
To personalize this initiative and add depth to our information, we would like to provide you with an opportunity to send us information about the property, including any work you have done to steward it over the years, and any photos or legacy information you may have. You can send anything you like to INSERT ADDRESS. By sending information, you are giving the NAME a license to adapt it for use in the directory (both print and online), only.
In addition, because we appreciate that not everyone will want to supply information or have a picture of their property included in the directory, we are providing an "opt out" of the photo depiction. If you do not want a photo of your property included in the directory, please check the box below:
Please do NOT include a photo of my property at ________________ in the directory. I understand this "opt out" is a courtesy and information regarding my property is part of the public record.
The directory text will be finalized by DATE and we anticipate publication by DATE. Therefore, to be able to include your materials or remove a photo, we appreciate your reply by DATE.
[nice things, etc.]
If at all possible, the organization's attorney should review the final letter before it goes out, which will allow the organization to address any concerns specific to the project or the particular locality.
Thank you for submitting an interesting and sensitive question. Respect for those who steward historic structures is important...as is celebrating the legacy they preserve.
 Woe betide your guide if a "coppice" is mistakenly called a "cornice."
 I have never heard of a directory of historic properties being used to "dox" (harass via release of private information) somebody, but I can imagine it happening.
 For example, if the write up said "This is the historic Bailey mansion. Legend has it if you throw a rock through a window, your wish comes true. Bring a rock and have at it!"
 As in, money to pay for damages.
 Is it on the state registry, federal registry, or considered "historic" due to a local designation? Or are the criteria simply that the structure was built before a certain year, hosted a significant event, or was once owned by a noteworthy person?
How long should the library retain employee records, payroll records, sales and purchase records, mortgage and loan documents, and other records
Several considerations impact the answer to this question:
For a public library, the bare minimum record retention periods are found in a document called "the LGS-1." The LGS-1 has rules for retention covering everything from your library's charter, to how long you hold onto circulation records.
For an association library, which does not have to follow the LGS-1, those retention rules in the LGS-1 are a good baseline, but you have a bit more latitude.
However, no matter what baseline a library or other cultural organization chooses to adopt, it is good to keep in mind that required retention periods are routinely extended by things like:
In addition, while it can't be considered a formal "retention period", documents are also "retained" by institutions simply due to a tendency to hoard records. At times, this can be a healthy tendency (like when letters from a first grade class from 1945, written to thank the local library for a story hour, are found in moisture-resistant storage, and they are turned into an exhibit). Other times, it is not so healthy (like when borrower records from 5 years prior are accessed during a burglary or hack).
For a large library (or museum, or other cultural institution) with robust funding and a large staff, "records management" per the LGS-1 or a customized "record retention policy" is often part of a person’s (or department's) job description--and is supported in the annual budget. For a smaller library (or museum, or other cultural institution) with less-than-robust funding, and a smaller staff, "records management" is often an afterthought. This can cause complications when the records pile up, and there is no person--or budget--to sort through them and make sure they are properly retained/purged.
But this question is about retention periods, not the drama they can cause! So here is the answer:
For the types of records mentioned in the question ("employee records, payroll records, sales and purchase records, mortgage and loan documents"), the retention periods vary; some are "permanent", and others are as short at 6 years. The LGS-1 (which will pop up when you search "LGS-1") will give you the breakdown.
For an association library that doesn't want to follow the precise requirements of the LGS-1, but still wants a retention policy, below is a model policy.
Thank you for submitting an important question!
[ABC] ASSOCIATION LIBRARY
RECORD RETENTION AND DISPOSAL POLICY
Items in yellow are to be changed or removed
The ABC Library retains and disposes of records as required by law, contracts, and based on the board's determination of what is in the operational best interests of the Library.
I. Records are retained as follows:
-Association Library Charter, bylaws, Plan(s) of Service, Annual Reports: PERMANENT
-All records made available per the Open Meetings Law: PERMANENT
-Contracts: (includes leases, mortgages, loan documents, vendor contracts, employee benefit contracts, warrantees, use of independent contractors): Seven years after termination of all obligations and rights created by contract; in some cases, PERMANENT. See "Archives."
-Employee-related: Seven years after termination of employee. See "Archives."
NOTE: This will be impacted by an association library's union contracts, employee manual provisions, and employee-related policies; check these documents to ensure consistency.
-Fiscal & Financial: Seven years, unless the relevant fiscal policy, document or transaction it is related to requires longer. See "Archives."
-Records pertaining to library operations (based on the LGS-1 to ensure consistency with non-association libraries in the XYZ Library System):
-Accession records: 1 year after accessioning procedure becomes obsolete
NOTE: Some libraries accession manuscripts, rare books and special collections, but not their general library holdings. In these cases, the accession records need to be retained only for the kinds of materials still accessioned.
-Informational copies of records prepared by and received from public library system, including but not limited to directories, minutes, budgets and reports: 0 after superseded or obsolete
-Directory of public library system and member libraries, prepared by public library system (member library's copy): 0 after superseded or obsolete
-Library card application records: 3 years after card expires or is inactive
-Borrowing or loaning records: 0 after no longer needed
-Interlibrary loan records, including requests to borrow or copy materials from other libraries, receipts for materials, copy logs, accounting records, and circulation records
a) When no copies of original materials are requested: 0 after no longer needed
b) When copies of original materials are requested: 5 years after order is completed
-Catalog of holdings
a) Manuscript or published catalog: PERMANENT
b) Continuously updated catalog: 0 after superseded or obsolete
-Individual title purchase requisition which has been filled or found to be unfillable: 1 year
-Records documenting selection of books and other library materials:
0 after no longer needed
-Library material censorship and complaint records, including evaluations by staff, patrons' complaints and record of final decision: 6 years after last entry NOTE: Appraise these records for historical significance prior to disposition. Some library censorship records deal with serious constitutional issues and may have value for future research.
-Patron's registration for use of rare, valuable or restricted non-circulating materials: 6 years
-Program and exhibit file documenting planning and implementation of programs, services and exhibits sponsored or co-sponsored by the library, including but not limited to photographs, sketches, worksheets, publicity, brochures, exhibit catalogs, inventory lists, loan agreements, correspondence, attendance sheets or registration forms, and parental consent forms:
a) Parental consent records: 6 years, or 3 years after child attains age 18, whichever is longer
NOTE: Photo release records are covered under item no. 68 in General Administration section. Local Government Schedule (LGS-1) Library/Library System
b) Attendance sheets and registration forms, when no fee is charged: 0 after no longer needed
c) All other records: 6 years after exhibit closed or program ended
NOTE: Appraise these records for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice
II. Records are disposed of as follows:
At the end of the retention period, physical copies are purged via shredding as their retention period expires.
At the end of the retention period, electronic records are routinely disposed of by [insert input from your IT professional].
Prior to purging, all records of the Library are appraised for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Records retained permanently due to historic or research value are designated as "Archives."
 For more "Ask the Lawyer" on the LGS-1, see https://www.wnylrc.org/ask-the-lawyer/raqs/253. The 2022 version of the LGS-1 was, as of April 11, 2022, found here: http://www.archives.nysed.gov/common/archives/files/lgs-1-2022.pdf.
 I know library systems are very good about ensuring borrower records are purged from ILS once they are no longer needed, as authorized by the LGS-1. This is just an extreme example to make my point.
 For more information on appropriate ways to dispose of physical copies, visit http://www.archives.nysed.gov/common/archives/files/mr_pub41.pdf.
We recently received 2 questions that raised related issues, so we've merged them in this "Ask the Lawyer Meeting Room Question Mash-Up" RAQ.
Here is question 1:
"Students frequently meet in the library with tutors. This typically happens in the open areas of the library but also in a few small study rooms. These rooms are available to everyone, restricted only by number of people and available for 1 hour on a first come, first served basis. Individuals and groups may stay longer in a particular room if no one else is waiting for the space. Rooms are not available to book ahead of time.
Some of the tutors are likely charging for their time, though many are not (studying with friends or similar). We have always considered the library's service to the students as paramount over any benefit to the tutor but is this an allowable use of library space due to the possible inurement and aid to an individual?"
Here is question 2:
"I've just finished viewing the first amendment audit webinar.... Such a great resource. Thank you!! I was wondering about meeting spaces and the language we can use to protect patrons in areas that they have been reserved for private meetings (scouting group in the meeting room, deposition in a tutoring room, tutoring, tele-med sessions, supervised visits etc.)"
These meeting-room related submissions to "Ask the Lawyer" were inspired by two separate resources: the first one, an "Ask the Lawyer" RAQ on meeting room policies, and the second, an ESLN-sponsored training.
If you've read the questions, you know they will not have the same answer. So, as recent viewers of the new Spider-Man movie may have asked, why the mash-up?
Because the answers share the same foundation: the rules around community access to space.
The first question is based on a concern we addressed in the RAQ on meeting room policies. Here is the part that inspired the question:
"No, there is no legal requirement for public libraries to limit access to space to non-profit organizations.
However, there IS a requirement for any "charitable" entity in New York to not allow any of its assets to “inure” to any one individual, while non-association libraries have to follow an even stricter rule against "aid" to individual people or businesses as set by the NY Constitution (this is why a town library can't use funds to throw a big "bon voyage" party to celebrate a retiring employee, but its not-for-profit "Friends" can)."
The second question is asking for model language, within the framework of what is allowed, to protect the rights of those using the rooms.
So, like a webslinger arcing majestically from issue to issue, let's do this.
The First Question
Is a person using free resources at the library for personal gain violating the law against "inurements"? Most likely: no.
The resources at public libraries can often serve as the first, critical building blocks of a small business. A person wanting to research an idea, create a 3-D printing of a product prototype, select neutral ground to meet a potential investor, or offer compensated services (such as tutoring) can often find what they need--for free--at the library.
The dawn of the co-working space might be changing this for people who can afford to rent space in a co-working facility that will supply desk space, internet, and even a mailing address. But for fledging entrepreneurs on a budget, the free resources and information provided by libraries can be essential.
And why doesn't such use of library resources for a business/personal gain risk tripping the bar on "inurements"?
Because the resource is available to the community equally, per library policy. In the member's scenario, the library is providing first-come, first-served space suitable for, among other things: group work, a political discussion, or tutoring (with or without compensation). The library is providing a place for people to sit and talk, so long as they arrive in time to gain access to a finite resource.
Once people are availing themselves of library services, a library can't set further rules about the relationship between the parties; so long as their interaction remains within library policy (not disruptive, not in excess of established time limits, etc.). In other words, the relationship between the parties, or an activity that fits within authorized use, can't change the otherwise compliant use of the library space.
Where the member's scenario could get out of hand would be if:
In each of the above examples, the service is exceeding the use generally available to any person using the library. This is where the "inurement" can begin, and the use of public library resources for unambiguously private gain would begin. But so long as no one is claiming or actually using the resource in excess of what is generally allowed, there is no issue.
The Second Question
Now that we've reviewed that "what applies to one must apply to all," we can turn to the other question: how can a library designate space used per policy and by reservation as "private," to avoid meeting crashers?
Below this answer is listed a myriad of resources from the ALA on this topic. I urge readers to review these, as each one sets out important considerations on the use of library space. But for now, we're dealing with this single, incremental question in the State of New York.
Once a library policy sets the terms of community access to private meeting space, here is language for signage at the entrance to the meeting space:
When reserved, this space is for designated users only. To reserve this space, or to obtain a copy of the rules and contract for reservation, please visit [INSERT] or [INSERT].
And there we go!
Thanks to both members for their insightful questions.
For those of you who wanting more at the intersection of law, libraries, and meeting rooms, paralegal Klara in the LOSA assembled this list of resources from ALA:
- overview on library meeting rooms, suggestions for policies
- includes standard definitions for terms included in policies
- lists what meeting room policies should cover
- an ALA eBook by Mary Minow, Tomas Lipinski, Gretchen McCord
- limited public forum vs. designated public forum vs. nonpublic forum
- lists legal cases relevant to library meeting rooms and exhibit spaces
5. OIF Blog - Library Meeting Rooms for All, by James LaRue (former director of the ALA Office for Intellectual Freedom)
 The answer to the Spider-Man part of this is of course obvious: because it’s a witty convergence of web-slingers. Of course, as a Gen X nerd (b. 1973), I was a target demographic. Well played, Marvel.
Such a policy would be far too overbroad. If a paid babysitter takes the kids to the library regularly, would that be a violation? If an accountant uses a library computer to check the tax code, would that be a violation? If a professional writer uses the reading room every day to write/think/draft, would that be a violation? That said, a policy against the sale or distribution of material items makes sense.
 Including those identifying as "First Amendment auditors"...a term I am loath to use. I am a huge fan of the First Amendment, but those claiming to “audit” for it often demonstrate a less-than-fully developed familiarity with the Constitution. To me, people trying to film in a library while asking questions about budget, etc. are just "people who want to record in the library," and they warrant the same respect, and must follow the same rules, as other people who may want to record in the library.
 ALA is the national go-to for information on library matters, and we try not to replicate materials already available. At "Ask the Lawyer" we deal with the legal nitty-gritty in New York, only.
 "LOSA" = The Law Office of Stephanie Adams, PLLC.
Sometimes, people nap in the library, particularly people who we believe might not have stable or sufficient housing. We feel that a library should not exclude people who need a secure place to rest, so long as there is no interference with library operations, but are there any legal considerations to this issue?
This is a VERY sensitive issue. There are many factors that could contribute to a person sleeping in a public space, including:
Each one of these brings their own array of legal (and ethical, and moral) considerations.
But before we get into all that, let's discuss: for purposes of this question, what is "sleep"?
For purposes of this question, let's call "sleep" a "state of healthy, restful, and restorative unconsciousness." In other words, "sleep" is that great thing we all do when our eyes get heavy, we yawn, and lie down, dozing into blissful unawareness.
Sleep: we all do it, and many of us love it.
Now, let's talk about what sleep isn't for purpose of this question. "Sleep" isn't, for purposes of this question; the result of a concussion, a seizure, a stroke, an opioid overdose, or dangerously low blood sugar. And yet, to the untrained eye, any one of these dangerous conditions could be mistaken for "sleep."
Because of this, no matter how much my bleeding heart and sense compassion want to say, "Just let the person sleep in the library, and don't say anything," I can't. I just can't bring myself to normalize ignoring what could be "sleep" one day, and a diabetic coma the next.
That said, because it could be related to a real or perceived medical condition and/or disability, denying or restricting library services (including the right to simply be present in the library) on the basis of simply falling asleep could pose risks of disability discrimination. Sleep happens, folks, and sometimes people can't help it.
So, what is the solution, here?
Well, as with many things, there is no one "right" answer. But I will say:
1. Every library should have a policy, or at least a "standard operating procedure" (or "SOP"), regarding "Suspected or Actual Medical Events in The Library." That policy should address (among other things) what to do about perceived loss of consciousness or coherence by library users.
2. A" Suspected or Actual Medical Events in the Library" policy or SOP can also address incidental (meaning unintended) and deliberate use of the library for napping.
3. This is where a library's discretion and autonomy kick in.
A library can decide if it is going to normalize sleeping in the library, or not.
If a library decides NOT to normalize sleep in the library, a simple statement such as "For assurance of safety, the library is a no-nap, no-sleep zone. Thank you for helping us maintain this rule. We understand that sleep happens; if you need to request ADA accommodations due to this rule, please contact NAME at INFO." Then, as a rule, patrons who fall asleep should be awoken (just as patrons who bring food in might be asked to remove it, or patrons who don't wear shoes might be asked to put some on).
On the flip side, if a library decides, as a matter of policy, to allow users to sleep in the library, such a policy can also create the protocol for "safe napping," with those planning to sleep notifying staff, so the nap is not mistaken for an overdose, seizure, etc.
NOTE: Before selecting this option, a library should check with its general liability insurance carrier to make sure it is consistent with the library's risk threshold and coverage.
What does a "Suspected or Actual Medical Events in the Library" with a "sleeping" section look like? Here is an example (with both a "sleep okay" and "no sleep" option at the end):
The XYZ Community Library is a welcoming, service-oriented, and inclusive space for all. To promote the health and safety of those using our library, the following possible medical events will result in the staff calling 911:
who does not expressly instruct staff that immediate medical attention is not required;
For this policy, "loss of sustained coherence or consciousness" is the inability to communicate meaningfully with library employees in the user's primary language.
For this policy, express instructions to staff that "immediate medical attention is not required" may be disregarded at the considered discretion of the library employees; such a decision will be based on consideration of: the specific facts of the situation, respect for the agency of the user, and respect for the mission and operational needs of the library.
If a library user has a medical condition that can potentially result in perceived or actual loss of coherence or consciousness, you may use the library's ADA Accommodations policy to arrange reasonable accommodations so your library experience is not unnecessarily impacted by this policy. For example, if a library user has narcolepsy and wishes to be woken in the event, they fall asleep, the library can consider a reasonable accommodation such as allowing the user to use a specific type of alarm in an otherwise quiet space.
Whenever possible, the library uses the following specific guidelines from the CDC with respect to common medical events that can impact coherence or consciousness:
Seizures do not usually require emergency medical attention. Only call 911 if one or more of these are true:
Suspected opioid overdose
Call 911 if an overdose is suspected.
Recognizing an opioid overdose may be difficult. If it is unclear, treat the situation like an overdose and proceed with treatment. Even if the patient wakes up or seems better after one or two doses of naloxone, emergency medical assistance is still necessary.
Severely Low Blood Sugar
Blood sugar below 55 mg/dL is considered severely low. If any of the following happens, you should call 911:
Signs and symptoms of a dangerous concussion can include:
This policy, and sleeping in the Library
CHOICE 1: USE IF THE LIBRARY DECIDES TO NOT ALLOW PEOPLE TO SLEEP IN THE LIBRARY Because loss of consciousness can be a sign of a medical emergency, library users are asked not to deliberately sleep or nap in the library.
If a library user is asleep in the library, staff are instructed to wake them.
In applying this rule, the library will follow the requirements of the ADA; if a library user has a medical condition that can cause uncontrollable sleep, at that library user's discretion, they may alert staff so accommodations can be made (see "ADA" above).
CHOICE 2: USE IF THE LIBRARY DECIDES TO ALLOW PEOPLE TO SLEEP IN THE LIBRARY
If you have a medical condition that can cause uncontrollable sleep, at your discretion, you may alert staff so accommodations can be made (see "ADA" above).
If you simply find that the library is a nice, quiet place for you to take a nap, please alert us that you "Plan to take a nap" so our staff knows that you are asleep by desire, and not experiencing a medical emergency causing loss of consciousness or coherence. We'll give you a nice arrangement of purple flowers to keep near where you're sitting so staff know you're deliberately using the library space to rest and restore yourself.
Users must limit planned napping in the library to no later than one half-hour before close, so you have time to gather your thoughts and energy before it is time for us to close up the building.
If your nap creates loud snoring or other disruption, we may have to wake you! Please be gracious to staff who are responsible for making sure the library is a welcoming and inclusive space for all.
As with any template, before adopting a policy based on this one, review the final version with your lawyer (and, as noted above, your library's insurance carrier).
And a final note: I truly wish I had a better answer to this question. As I said at the beginning, this is a VERY sensitive issue. But if a commitment to library access, safety, and mission guide the decision, your library can find the best answer for YOUR library.
Thank you for this tough question.
 This bullet might be more properly be phrased “Sometimes people just want to take a damn nap,” meaning that forces that get in the way of said nap are unreasonable. I have to disagree in this case, but I get it.
 And if you suffer from insomnia, you may not do it enough. I feel you, fellow lying-awake-at-2AM-person.
 If you are a trained medical professional qualified to diagnose of a concussion, a seizure, a stroke, an opioid overdose, or dangerously low blood sugar, this statement obviously doesn't apply to you.
 One of my children has Type 1 Diabetes (the kind where you can't make your own insulin, because your immune system attacked the Beta cells in your pancreas) so this issue hits close to home.
 When in doubt, call 911.
 Just in case it isn't readily apparent, I am truly neutral on whether or not to "normalize" sleeping in a library. Truly, I can see the benefit to a decision either way; the point is to make a deliberate decision based on a commitment to access, safety, and smooth library operations.
 It doesn't need to be flowers (purple or otherwise), that’s just me being cute. The point is having a signifier or system, so employees know the lack of consciousness didn't start as a medical issue.
 I worked on this question while sitting in my back yard on a sunny day in May. I asked my 7-year-old neighbor, Matt, who is possessed of both a wise spirit and a blunt nature, if he thought people should be able to sleep in the library. "No," he said, after a moment’s reflection. "They might not be seen and could get locked in for the night." He then asked me: "You do this for your work?" Kids are the best.
Periodically, our library receives handwritten requests for information from individuals who are incarcerated at prisons and correctional facilities around the country.
We are an academic library at a private institution and our campus does not currently have a prison outreach program. As part of our ongoing social justice efforts within the library, we would like to be more purposeful about the way we handle these reference questions.
What are legal considerations we should keep in mind when providing reference services to incarcerated individuals? Ideally, we would want to treat these questions the same way we would questions from members of the general public. However, our team wants to be sure we understand whether there are ways we could unintentionally put ourselves or our institution at legal risk if we provide information that is somehow deemed problematic.
(Note: We are aware of the Prison Library Support Network and plan to participate in trainings they may offer.)
As I have written before, a big rule for the "Ask the Lawyer" service is "don't reinvent the wheel!"
So before I answer this, I will reiterate the member's mention of the "Prison Library Support Network", and refer readers to their excellent guide "Reference Letter Writing: A Volunteer Handbook."
The "Volunteer Handbook" reviews a lot of what I would otherwise supply: how to be respectful of an incarcerated person’s needs and personal considerations when responding to a reference request, how to be aware of and work within the larger social dynamics at play, and--critically--the practical considerations of sending mail to incarcerated people (it's also well-written, which is always a plus).
To the "Volunteer Handbook" I would add just a few considerations for a library at a private higher education institution:
First, it is important to recognize that while library services provided in the state of New York by both public libraries and academic libraries are confidential, incarcerated individuals do not have privacy with respect to information they receive via the mail. Therefore, the normal librarian/library user dynamic is "off."
Here is a sample of the scrutiny mail to a person living in jail or prison will be subject to:
(c) Printed or photocopied materials.
(1) When, in the course of inspection, printed or photocopied materials are found, the entire contents of such correspondence may be delayed through the correspondence unit for up to six days while the materials are subject to media review guidelines (see Part 712 of this Title).
(2) A limit of five pages of printed or photocopied materials (an individual newspaper clipping will be considered one page) may be received within a piece of regular correspondence (except as provided in paragraphs  and  of this subdivision). In order to facilitate media review, pages or clippings must not be taped, glued, or pasted together or to other papers.
(3) Not to exceed once every four months, an inmate may make a written request to the superintendent to receive in excess of five pages of printed or photocopied legal papers specifically related to the inmate's current legal matter (e.g., legal brief or trial transcript relating to the inmate's active case) within a piece of regular correspondence. The inmate shall make the request in advance...[etc.]
Ugh. That's a lot of compromised privacy. So, from the outset, just keep in mind that per 7 CRR-NY 720.4, as well as a facility's customized policies and procedures, the usual rule of confidentiality will not apply.
Aside from that, I add three things:
1. An academic library should specify via written policy if it offers library privileges to community members within a defined geographic scope (not just students, alumni, and employees).
2. An academic library should have a policy setting out its capacity and limits for providing hard copy/mailed responses to reference requests.
3. If a library is going to provide services specifically to incarcerated persons living beyond the geographic scope allowed by their policies (as the member's question says, they get questions "from around the country"), a specific policy should be developed for providing that service, even if the institution doesn't have a fully-developed prison outreach program.
These three policies should be applied evenly, fairly, and with attention to budget and capacity. This means:
With respect to #1, if an academic institution allows residents within 100 miles to have library privileges, and there is a prison within that radius, a person who is incarcerated may have library privileges (although their ability to exercise them may be limited).
With respect to #2, if an academic library provides written, mailed responses to users, there should be time and resource limits on providing that service to users, and those limits should be uniformly applied with respect to both staff hours, and copying/mailing budget.
And with respect to #3, if a private academic institution wants to provide services to persons living in jail or prison beyond the scope of their usual services, but it not able to develop a full prison outreach program, such services should still be done per a specific policy.
Why a specific policy, if there isn't a fully developed outreach program? A few reasons. First, it will help set the boundaries for the service, based on the library's capacity. By establishing those boundaries, the library/institution will be able to show that the resource is being allocated fairly. And finally, it provides clarity on how such services are provided, who is responsible for providing them, and how much is allocated for the expense associated with them (useful information if your institution ever wants to expand the service through a grant).
Here is a sample policy:
[ABC Library] Policy on Reference Services to Incarcerated Persons
As part of our mission, the [ABC College Library] provides up to [20 hours per month] of reference services to persons incarcerated anywhere within [the United States].
Upon receiving a reference request from a person who is incarcerated, the ABC Library assesses if the inquiry can be answered by the library within [one month (30 days)].
If it can be answered, the question is placed in a queue to be answered in order of receipt, and an answer will be sent via the USPS within 30 days of receipt.
If it cannot be answered, either due to a large queue, or because it is not within the capability of the institution, a reply is sent stating "The ABC Library received your request for reference services, and regrets that answering your question is not within our capability at this time."
The position responsible for reviewing requests, and for assessing and effecting a timely response, is [INSERT]. This responsibility may be delegated, based on capacity.
OPTIONAL: To the greatest extent possible, persons within [NAME Correctional Facility], which is in the Library's area of service, are served per the library's policy on community members, and hours spent serving such users are not counted against the monthly amount allowed under this policy].
I appreciate that for many institutions of higher education, this question is deeply related to mission. Therefore, in adopting even the most informal policy, such as the one above, I also suggest considering a recital of how the work specifically plays into the mission of the institution.
Thank you for a thoughtful question.
 I get why, but as someone opposed to the carceral system in general (we can do better), this is just another reason to develop a better system.
 [Text in Brackets] in this sample policy indicates places where customization is most needed.
 An institution should research what time frame they feel is fair to offer; for some inquiries, sixty, or even ninety days may be reasonable. This depends on the type of inquiries your institution is receiving...especially since this is a policy for a reactive service, rather than a deliberative outreach program.
This is an issue that's come up in recent conversation. If an individual who no longer works at an institution finds that their picture is still being used by said institution, whether in promotional photos or on staff/faculty pages, does that individual have any legal recourse? It seems wrong for an institution to continue to use photos of faculty, staff, or even students who are no longer affiliated with the institution but it seems to promote the idea that they are. Sometimes it could be carelessness, other times it seems like there is an illusion of diversity being promoted. What could someone do if they find that their image/likeness is still being used by their former employer, for whatever reason?
This question needs to be answered on a sliding scale.
Here are three scenarios to show how the scale can slide:
Scenario 1: "Scrapbooking"
A museum makes robust use of social media to connect with its community. At different events, a staffer or two are expected to take lots of photos, including shots of staff and guest speakers interacting with the community. Members often comment how much they enjoy the images and connectivity.
Since the Museum got in on the ground floor of social media and the practice started on the Museum's website, some of the content is almost 3 decades years old ("born and aging digital"). At this point, some of the employees in the images have not only simply moved on--they've retired.
No written, signed permission to use the employees' images is obtained.
Scenario 2: "Image Crafting"
A library is working to show its commitment to diversity, equity, and inclusion. The employee in charge of the web site and social media culls through photos of employees and patrons to post selected images on static pages that refer to a DEI commitment; while other use of the website and social media is managed as usual, these pages remain unchanged as stand-alone statements.
No written, signed permission to use the employees' images is obtained.
Scenario 3: "Stone Cold Marketing"
An association library is creating a brochure to kick off a capital campaign to build a new library on a donated piece of property. The donated land is more centrally located in the library's area of service. To raise funds for the hoped-for building that will serve a new generation of library users, the library asks all the employees and their kids to attend a photo shoot on the new land. The idea is they will sit on blankets, reading, on the currently-empty lot, and the library's graphic designer will put a semi-transparent rendering of the future building over them, showing the library of the future.
No written, signed permission to use the employees' images (or their kids' images) is obtained.
In New York, the law is pretty straightforward on the unauthorized commercial use of living people; NY Civil Rights Law Section 50 "Right of privacy" says "a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor."
Recently, the law was expanded to restrict the commercial use of the image of deceased "personalities": NY Civil Rights Law Section 50-F 2. a. provides "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision four of this section, shall be liable for any damages sustained by the person or persons injured as a result thereof."
"Ask the Lawyer" has addressed this issue a bit before: see https://www.wnylrc.org/ask-the-lawyer/raqs/255 and https://www.wnylrc.org/ask-the-lawyer/raqs/49, but we haven't focused on solutions to the question posed by the member: If an individual who no longer works at an institution finds that their picture is still being used by said institution, whether in promotional photos or on staff/faculty pages, does that individual have any legal recourse?
This is where our scenarios come in.
If the use is what I've called "scrapbooking" in the first scenario--part of a collection documenting events as they unfolded, and not featured or linked in a way that advertises the institution or asks for money--the law does not have much recourse. That said, a former employee can always ask for an image to be removed as an act of courtesy, and if there is a compelling reason (safety, emotional well-being, not wanting to be affiliated with the institution any more) an attorney could help the person isolate and make a convincing argument for removal.
As the scale continues to slide, if the use is what I've called "image crafting" (the use referenced by the member in the question), if written permission was not granted, there may be grounds for demanding removal under the law. A current or former employee who feels strongly about this should consider working with a lawyer, since the first request should accurately set out the basis for the requested removal.
On the final end of the scale, when the use is clearly for "advertising purposes, or for the purposes of trade" (like a posting soliciting a capital donation), written permission should have been obtained, and a former or current employee--unless their job description includes serving as a model or posing for published pictures--has a strong basis to demand removal under the law.
What can a cultural institution do to avoid the risk of unauthorized commercial use of an employee's image? A few things:
First, unless it is part of the employee's job description, do not require use of the employee’s image on print publications and social media. If the institution has determined that, for the sake of public relations and service, all public-facing employees will have their picture on the website, it should ensure that due attention to safety and privacy is factored into the requirement.
Second, even when an employee seems "okay" with being featured in a publication (print or online), it is good to get written permission. While not all uses will qualify as "commercial" and thus risk violation of the law, it shows respect and proper attention to employee agency and safety.
Third, if feasible, consider a default position that every employee, unless it is in their job description, has "opted out" for use of employee images on institutional publications. Then ask who would want to be featured. For example: "To respect employee privacy, the library does not intentionally use the name and images of employees except to the extent they are listed on the website and in published board materials. If you would like to be featured in library social media and publications, please alert the Director, so we can obtain a written image release. This is not a requirement!"
Fourth, if your library or other cultural institution needs to rely on the personality and persona of an employee to the point where use of their name and image in association with the library is part of their job, consider putting that in their job description. For example, "The [insert title] position is a community-facing position and in addition to routine interaction with the public, will be required to interface with the public via materials published by the [library] from time to time, including use of their name, signature, and recorded images of their likeness and voice."
And fifth, when in doubt, get an image release.
An image release can come in many forms; to be on the safe side, an image release should be custom-written for your institution, and the use it plans to make of authorized images.
That said, here is a sample:
NAME, who is at least 18 years of age, consents to the use of their image, name, and likeness, as governed by New York Civil Rights Law 50 for purposes of informing the public about events, opportunities, and initiatives of the XYZ Library, including fundraising initiatives. As an employee, I understand that such consent is not a requirement of my position, and I may revoke this consent at any time by sending a written request to make no further use of my image under this Image Release. I understand that "revoking consent" means no further use will be made of my image, but that past use will not be removed. Unless revoked by me personally, this release shall be binding on my heirs and cover the institution's use of my "right of personality" as covered by New York Civil Rights Law 50-F.
Records retention period of this release: PERMANENT.
A well-written release can cover you whether you are "scrapbooking", "image crafting", or engaging in "stone cold marketing."
Thank you for a thoughtful question!
 I won't list them all here, but there are many exceptions to this law for use by artists, journalists, etc. If you are just learning about Civil Rights Law 50-F in this RAQ, please don't let it stifle your archive, art, or journalism! You can find the list of exceptions here: https://www.nysenate.gov/legislation/laws/CVR/50-F.
 I could write a whole chapter on this consideration, but we'll leave it there for now.
"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.
To answer these questions, we've created an "Open Meetings Law 2022 Library Board Chart and Checklist" that sets out:
Below that are the requested sample resolutions and policies.
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.
(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.
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:
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.
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
[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.
[Insert rules of broadcasting meeting if applicable]
 As with all things template, whenever possible, review this guidance with your library's attorney.
 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.
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!
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. 
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, 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?
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?
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, 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.
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, 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.
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 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:
Reason it's relevant
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.
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.
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.
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.
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]
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.
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!
 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).
 Including two people credited for the theme song.
 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.
 I realize that these categories overlap, especially these days, but we'll talk about why the distinctions are important.
 It's official: I am using a lower-case "p" to write "podcast." Congratulations, podcast, you've been genericized.
 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."
 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.
 In this case, "unauthorized" means without written, signed permission.
 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.
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!
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.
2. Copying protected works is sometimes allowed under "fair use." 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, and we want to help you (or a person you are assisting) exercise your rights.
4. Under the TEACH Act, 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.
 17 U.S.C. 106 reserves the making of copies to the copyright owner.
 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!
 Section 110 of the Copyright Act.
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!
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.
2. Copying protected works is sometimes allowed under "fair use." 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, 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.
The copy machines are here for your use, and we appreciate your consideration of these laws.
 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.
 17 U.S.C. 106 reserves the making of copies to the copyright owner.
 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!
 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.
 Seriously, if we see you doing that, we have to ask you to stop.
Local police walked through our Library earlier today with no explanation. Later on, we noticed 2 teens on premises, who we assume should have been in school. We thought the police may have been looking for them as truants, but that is not confirmed. The question is, if the police were to ask if we saw the teens, are we able to answer or is that considered a violation of patron privacy as it is with patron information and records?
There is no one right answer to this question, but there is a formula for any library to come up with its own, unique answer.
Here is the formula:
[Situation] x [Ethics + Law] / [POLICY/Precedent] = YES or NO
Let me break this approach down. And trust me, I will give a clear reply to the member's question at the end of all this.
The formula starts with the situation. In the scenario we have here:
"Local police walked through our Library earlier today with no explanation. Later on, we noticed 2 teens on premises, who we assume should have been in school. We thought the police may have been looking for them as truants, but that is not confirmed."
There is a lot that can be said about this description, but one important aspect of it is the library's care to not reach a conclusion about why the teens were at the library instead of school (while the member describes an "assumption," there is no action on that assumption). And as noted, law enforcement was not called; rather they "walked through...with no explanation."
This situation is then multiplied by the combined factor of ethics and law. Both the ALA and NYLA Codes of ethics emphasize patron confidentiality. Meanwhile, New York's Civil Practice Law and Rules ("CPLR") Section 4509, the state law requiring a subpoena or judicial order before a user's library records can be shared without that patron's consent, does not define "library records" other than to state that they include "personally identifying details." This is why whatever the situation, ethics, and law are, the answer must be assessed under a library's policy governing patron records (while considering past applications of the policy, to ensure consistent application).
It is at this last factor--policy--where things can get complicated. With the advent of (sorta) new technologies, the definition of "library records" is not just internet searches and checked-out materials. It could be what a person printed on a 3D printer, or their image on a surveillance camera, or their use of library wi-fi. None of these things, right now, are listed in CPLR 4509, but many library professionals would consider them to be library records.
The trick is making sure that when a library takes a position about library records (especially with regard to records that, at first glance, are not about library services, but more about security), it is supported by their policy.
Okay, I know I promised a "clear answer". So let's re-state the question: "if the police were to ask if we saw the teens, are we able to answer or is that considered a violation of patron privacy as it is with patron information and records?"
Based on a fictitious library consulting a fictitious lawyer, here is one possible answer:
To the ABC Library:
You have requested legal advice regarding whether a library may provide a substantive answer in response to law enforcement enquiring about the presence of a patron in the library.
Your concern is that such a disclosure, based on the visual observations of library employees rather than written/recorded records, could still be considered a violation of patron privacy. You confirmed that at the time of the inquiry, the library had no operational need to release any such information.
I have reviewed the library's policy on patron confidentiality, and based on the below clause, I advise to not release such information unless there is a subpoena or judicial order:
"Consistent with the ALA and NYLA Codes of Ethics, the ABC library considers any record or information that indicates an individual's use of library services and/or facilities to be a library record under CPLR 4509, unless specifically excluded by this policy."
Therefore, I advise not providing such information without a subpoena or judicial order, unless the requestor accurately points out that a specific law requires it.
Thank you for trusting me with this question.
Very truly yours,
A. Hypothetical Lawyer, Esq.
Of course, as the "formula" at the start of this answer points out, the "situation" may vary from time to time. And CPLR 4509 does leave room for mandatory disclosure "when otherwise required by statute."  Those are the times when a library may want to consult a local attorney to obtain quick advice in the moment.
Since this formulaic balancing of facts, ethics, legal obligations, and policy can be difficult to keep in mind, it may be helpful to summarize it to library trustees, employees, and volunteers this way: “A patron's use of the library and our services are confidential. If anyone asks about a patron using or being at the library, our standard reply is 'Since patron information is confidential, I need to refer you to [the Director].’”
Thanks for a very thought-provoking question.
 As of November 12, 2021, here is the text of CPLR 4509: "Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute."
 What are examples of things to exclude? If a library is in shared space with a shared security surveillance system, that should be excluded (unless the library has confirmed via written contract that the footage of the library will only be reviewed per the policy). If the library has a snack bar or gift shop and wants to monitor the point of sale for theft, that could be excluded. Security footage of a community room used by third-party groups (not individuals) under a space rental agreement is another possible example.
 Even lawyers need to look this stuff up sometimes. Just like I don't have some of the finer points of the Domestic Relations Law at my fingertips, not all lawyers can recite the requirements of CPLR 4509.
 Or designated positions with regular training and/or adequate experience to appreciate the fine points of the library's policy.
In light of recent accusations of alleged misconduct by community organization volunteers utilizing public library facilities, how should libraries protect themselves moving forward?
Many of our libraries have community rooms that are reserved at no cost, or minimal cost, for service organizations, community groups, or private events. Typically these events are not monitored by library staff, and often occur outside of normal library operating hours. Although community room use by the public may be limited based on scheduling and other parameters, discrimination based on the type of program/service is generally prohibited.
What best practice measures should libraries implement to reduce liability? Is there particular language that we should include in our community room rental agreements or policies?
On a related note, what about other library visitors that make use of library common space on a regular basis for tutoring or counseling that doesn't constitute a library sponsored program or group? Library staff cannot always monitor what occurs out of view of staff workstations, and cameras don't typically capture every secluded space within the building.
Finally, what about staff who often work alone in the library, or alone in the children’s' room? Even with policies regarding unattended children under a particular age, those age limits are often well below adulthood and library staff are in a one-on-one situation for extended periods of time.
This concern is primarily related to accusations of sexual misconduct and abuse of minors, but could apply to anyone, at any time, for any reason.
In 2012, I was an in-house attorney at a university when the "Penn State Scandal" broke. Along with the nation, I was horrified to learn about the serial sexual abuse of children by a powerful coach in an NCAA Division I football program--and just as critically, the system that allowed the abuse to go unchecked for so long.
If I hadn't been before, at that point I became acutely aware of the responsibility of an institution to safeguard the vulnerable populations it serves—even when only hosting or renting a part of its facility. I looked to the law and other guidance for solutions, and spent time working on contracts, policies, and trainings for safeguarding minors--and avoid liability for failing to do so.
As the member's questions point out, in a busy, community-oriented library, that liability can enter the scene in many ways. Let's tackle their questions one-by-one.
Member question: Many of our libraries have community rooms that are reserved at no cost, or minimal cost, for service organizations, community groups, or private events. What best practice measures should libraries implement to reduce liability? Is there particular language that we should include in our community room rental agreements or policies?
I have spent a lot of time over the last four years reviewing various library policies. And if there is one thing I have learned, it's that almost every library governs the use of its space by outside organizations differently.
This makes a uniform approach to this question difficult, but I think I can give you some good initial food for thought by providing two answers:
ANSWER #1: adopt a “Protection of Minors” addendum to written policies and (ahem) "handshake procedures" for allowing use of your facilities for one-time (or very rare) use by outside groups.
Thank you for using the ABC Library for your gathering!
At the ABC Library, our mission is based on service to the community, and that includes a commitment to practices that keep our community safe.
Therefore, a representative of your organization must fill out this "Assurance Regarding Minors" before granting you permission to use the space.
1. Will your event include minors (children under the age of 18)? YES NO
If "NO", we're all set, please sign and date below.
If "YES", please continue
2. Will your event require the guardian or parent of any minors attending to be present?
If "YES", we're all set, please sign and date below.
If "NO", please continue
3. If minors unaccompanied by a parent or guardian will be at your event, please list the adults responsible for the well-being of the minors, and how your organization has confirmed they do not pose a risk to the minors.
Role in your organization
Method of risk assessment
Thank you for filling out this assurance.
PRINT NAME: ________________________
PRINT NAME: ________________________
ANSWER #2: Add a "Protection of Minors" provision to the standard contract your library uses to set the terms of regular/routine use of your facilities by outside groups.
[NOTE: A "Facility Use Agreement" should name the organization in the contract, set out the rules for use, confirm if the use is paid, bar use for political purposes, and—critically—if there is a heightened risk to the activity, require insurance. What I have set out below is just the provision related to minors. A template facility use agreement is on "Ask the Lawyer" at https://www.wnylrc.org/ask-the-lawyer/raqs/167.]
Protection of Minors
The ABC Library expressly forbids abuse or sexual abuse of minors on its premises.
As a condition of using space in the Library, ORGANIZATION represents and warrants:
a. ORGANIZATION has verified, and shall verify every six months, that all employees and volunteers who will be at the Library per this Facility Use Agreement are not listed on the New York State Sex Offender Registry.
b. ORGANIZATION maintains a policy barring sexual abuse within its operations, and requires all employees and volunteers to report instances of sexual abuse to law enforcement within 24 hours of observation or receiving a report of sexual abuse; a copy of the policy is attached.
c. The indemnification and insurance provisions in this agreement expressly include indemnification and coverage of the Library, its trustees, officers, employees, volunteers and agents for any complaint, claim, or cause of action related to alleged sexual abuse.
Next member question: On a related note, what about other library visitors that make use of library common space on a regular basis for tutoring or counseling that doesn't constitute a library sponsored program or group?
This is a very tough one, because the risk will vary based on the design and capacity of your library.
Libraries with space in wide-open areas near circulation and reference desks obviously have an advantage in this regard: there is lots of space for people to meet as described in the question, without the seclusion that can provide protective cover for illegal behavior.
That said, libraries also provide secluded areas so people have places for quiet contemplation. Quiet contemplation being one of the things we need more of in this world, I imagine most libraries are not considering totally getting rid of it any time soon.
There is no perfect solution to this issue, but here is the best input I can offer: once every few years (at least), a library should review its floorplan, policies, and any and all safety-related concerns with the library's insurance carrier. They will be in a position to help the library assess its unique position in this regard.
Finally, what about staff who often work alone in the library, or alone in the children's room? Even with policies regarding unattended children under a particular age, those age limits are often well below adulthood and library staff are in a one-on-one situation for extended periods of time.
At least once a year, staff—especially staff who work alone or in isolated areas—should be trained on practices to keep themselves and others safe. This should include:
For some libraries, this training will draw on a large collection of formal policies. For others, it will simply be running through a series of standard operating procedures.
The goal of such training--and the answer to the member's question--is to develop and enforce good boundaries (set by written policy or a well-articulated "standard operating procedure" or "SOP") that includes a clear set of rules for how to interact with minors, and every person and co-worker in the library. By developing such rules/procedures while focusing on the entire spectrum of how a library keeps its employees and patrons safe, the energy spent on training and thinking about safety-related best practices will be maximized.
...positions a library to both diminish the risk of child abuse at its premises, and to have the documentation to show the library did the best it could to diminish that risk. This reduces both the likelihood of harm, and liability.
And as always when it comes to managing risk and liability, as often as is practical, invite your attorney and your insurance carrier to participate in these efforts--they are critical partners in such initiatives.
Thank you for a very important set of questions.
 I am sure you can Google it, but here is a link to a thorough summary: https://www.chronicle.com/package/penn-state-scandal/.
 I am also a parent. However, you'll only get the cool, rational lawyer part of my brain for this answer, since the "parent" part of my brain does not think about this issue either coolly or rationally.
 That's right, "Ask the Lawyer" has been around for almost four years!
 Since COVID has killed the handshake, we'll just call these "unwritten policies."
 In the sample language, I am calling the organization using the library's room "ORGANIZATION."
 For more on this political issue, see https://www.wnylrc.org/ask-the-lawyer/raqs/95.
 Like learning how to make stained glass (which can lead to nasty palm cuts), and leading a group of minors (which requires consideration of how an organization guards against abuse).
 Like, for instance, not having physical contact with patrons (no matter what their age). Of course, such a protocol is a lot easier to enforce in COVID-times.
 If I ran your library, those rules would be: no physical contact with patrons (regardless of age), no unaccompanied minors under 16 allowed if the library only has one employee on staff, no leaving the circulation desk when patrons are in the library if there is only one employee on hand, no being in a room alone with an unaccompanied minor. It would also be a rule that these rules are consistently applied.
 Answer #2.
 Answer #1.
There are so many ways the relationship between a library and their Friends can get "complicated."
Can you provide a template for an agreement between a library and their Friends?
NOTE: As a primer to this answer, which mostly consists of the requested template, I suggest reviewing the materials in the ever-excellent "NYLA Handbook for Library Trustees," particularly the guidance and links on page 85.
"Ask the Lawyer" has addressed the issue of "Friends" relationships before. This question presents a chance to address some common areas of concern pro-actively.
Of course, since an agreement is only as good as the lines of communication between the parties who are in it, aside from reviewing this template in advance of discussing it with your Friends, get ready to spend some time on this. A good agreement is the product of a lot of discussion, back-and forth, and work for clarity—not the other way around. And if you can, invite your lawyer to the table.
That said, a simple template can be a handy way to frame the discussion. So with that, here it is:
TEMPLATE Cooperation Agreement
Friends of the ______________ Library
This agreement (the "Agreement") between the _________________ Library (the "Library") and the Friends of the _____________ Library, Inc. (the "Friends") is intended to further the mission of the Library and the mission of the Friends by clarifying the mission-driven collaboration, shared commitments, and terms for collaboration between the two institutions ("Collaboration").
In all matters involving the Collaboration, the Library and the Friends shall be guided by their missions.
The mission of the Library is:
The mission of the Friends is:
In furtherance of their missions, the Parties set forth the below "Shared Commitments."
Shared Commitments of the Library and the Friends
Shared Commitment to Ethics
In all matters involving the Collaboration, the Library and the Friends shall be guided by the ethics of their institutions, including the American Library Code of Ethics, the Library Board's Code of Ethics, the oaths of office of the Library Board Members, and the Friends Board's Code of Ethics, and each parties' Conflict of Interest policy.
Shared Commitment to Legal Compliance and Transparency
As not-for-profit institutions governed by a variety of federal and state laws and regulations, the Parties operate under an array of legal obligations, and hereby commit to model compliance and all appropriate transparency in their stewardship of Library and Friend's resources.
Shared Commitment to the Success of the Library
The Parties agree that the very purpose of the creation of the Friends is the continued viability and growth of the Library, and all their Collaboration shall be to that end.
In furtherance of their shared commitments, the Parties set forth the below "Collaboration Terms."
Use of Name
In consideration of the support enabled by this Agreement, the _________________ Library consents to the use of the Library's name in the name of the Friends.
Distinguishing the Entities
Although the Friends are allowed, by this Agreement, to incorporate the name of the Library into their name, each party agrees to exert extreme care to consistently distinguish one entity from the other, and to use their respective EIN's, proper corporate names, when relevant proper Charities Bureau number and corporate identification number, at all times to distinguish one from the other.
This obligation shall be especially critical during any marketing, contracting, fund-raising, event-planning, and when either party communicates with the public or any oversight authority.
To ensure mutual awareness of each other, the boards shall maintain a shared record of the current information for both parties, as it is available:
By no later than DATE, the Library and the Friends shall create and maintain a "Library-Friends Collaboration Committee," with at least three board members from each organization, for the coordination of any aspect of the Collaboration, and shall invite no less than three Library board members to serve on the committee in a voting capacity. The committee itself may also appoint three additional members, by majority vote, but the total membership shall not exceed nine.
The Library-Friends Collaboration Committee shall have no authority to bind either the Friends or the Library.
Committee members shall serve one-year, renewable terms, which run from January to December (the Friend’s fiscal year). The Committee shall be co-chaired by one appointee from each board, as named by the President of that board.
The stated purpose and authority of the committee shall be "To maintain a strong and routine collaboration between the Library and the Friends, to facilitate planning in furtherance of the mission of the Friends, and to ensure clarity in matters of fund-raising, fiscal goals, and specific donations."
The Library-Friends Collaboration Committee shall meet no less than quarterly, in furtherance of the commitments of this Agreement.
Annual Contribution Ratio
The Friends shall aspire to direct no less than INSERT% of their total annual income to the Library. Any departure from this percentage shall be subject to a vote by both parties, based on the planned need to temporarily direct resources in another way, for the benefit of the library (for example, the Friends contracting with registered fund-raising counsel for a capital campaign).
Annual Planning Sheet
As part of the operations of "Library-Friends Collaboration Committee" the committee shall create for each fiscal year an "Annual Planning Sheet." This sheet will list the special asks the library has (including but not limited to funding for acquisitions, equipment, programming, board discretionary funds, or a capital campaign), and will be used by the Committee and the Friends to determine fund-raising objectives for the year, and to pre-identify any departure from the annual contribution ratio.
The Friends will encourage donors to make "unrestricted" donations (donations without conditions).
If a restricted donation is accepted (for instance, a donation that requires a naming right, or a certain work of art be placed in the Library) the conditions of the donations must first be reviewed for consistency with the Library's controlling documents and strategic plan, and then accepted via a majority vote by the Library's board.
It is expected that at all times the Friends shall maintain appropriate records of donations and donor-restricted donations and shall issue, in a timely manner, letters of acknowledgement in furtherance of any tax credit the donor may qualify for.
The Friends may apply for grants from government and private entities for the benefit of the Library, but prior to applying for the grant, the conditions of the grant must first be reviewed for consistency with the Library's controlling documents and strategic plan, and then accepted via a majority vote by the Library's board. This is to ensure that the time and resources used to apply for the grant are not wasted.
If the Friends apply for grants from government and private entities for the benefit of the Friends (for instance, to purchase donor management software, or to buy equipment the Friends will use for events), the Library does not need to be consulted. However, the Friends and the Library will, through the Collaboration Committee, maintain awareness of grant applications, to ensure there are no redundant requests.
In MONTH of each year, the Treasurer of the Library, and the Treasurer of the Friends, shall meet to exchange financial reports, and to independently and/or jointly develop any observations or advice they as Treasurers may have for the Committee or their respective boards.
No Library Resources for Fund-Raising
It is understood between the Library and the Friends that no library employees shall staff a Friends' fund-raising event, and no Library resources whatsoever shall be used in furtherance of such event.
To avoid any concerns regarding authority and responsibility, no members of the Friends Board shall volunteer at the Library.
To avoid any concerns to the detriment of the Friends or the Library, in the event either party believes the other has violated its mission, formation documents, charitable purpose, applicable laws and regulations, or this Agreement, the concerned party shall notify the other in writing.
If the dispute is not resolved within ten days, the parties shall agree to retain a New York Bar Association-listed mediator to resolve the dispute. To select the mediator, the Library shall supply a list of 5 qualified candidates, and the Friends shall select the mediator from the list. As part of their service as a neutral party, the Mediator shall certify that they may serve without a conflict of interest.
If one full-day session of mediation does not resolve the dispute, the concerned party may seek such other relief as appropriate.
Bi-annual Agreement Review and Amendment
This agreement shall continue for so long as the Friends continue activities for the benefit of the ______________ Library.
Every two years, the officers of the Friends and the Library, shall meet to review this Agreement, or refine their practices that are governed by it, as needed.
This Agreement may be amended through a two-thirds vote by both boards within the same two-month period.
Effective Date and Term
The Agreement is effective upon the date of incorporation of the Friends, and shall continue for so long as both parties are in existence.
With this understanding, on ________, the Board of the ___________________ Library passed a resolution to enter this Agreement effective as of _________________, and the Board of the Friends of the _____________ Library, Inc. passed a resolution to enter this Agreement effective as of ____________, as signified by the signatures below.
[insert signatures, etc.]
Can you provide a template facility use agreement for renting or allowing community groups to regularly use space in a public or association library?
Yes, I can! But first, a few caveats:
FACILITY USE CONTRACT
This contract for facility use is between the ABC Library (the "Library") and INSERT NAME ("Organization") an [insert type organization/individual] ("Organization") with an address of [INSERT], for temporary use of [INSERT ROOM# or Description] in the Library (the "Space").
Details of Temporary Use
Date(s) and time(s) of use
NOTE: If use is routine ("Every Monday in 2020") note the routine
Purpose of use (the "Event/s"). Please describe the activity to be conducted while you are using the Space.
Estimated maximum attendees
Will you bring in any contractors or third parties under contract for this event?
If so, you must provide the Library with a copy of the contract and they must name the Library on their certificate of insurance.
Please list any special details
Person from Organization who will oversee Organization's use of the Space (must be present at all times) and their back-up person
Rental Fee on a per-use basis
NOTE: If the use is charitable and the fee is to be waived, the use must not involve any political activity as defined by the IRS.
Fee is payable to [INSERT] and shall be paid by:
Will minors unaccompanied by parents/guardians be attending the event at the Space?
If yes: does Organization have a policy barring abuse of minors, and requiring instances of abuse of minors in connection with Organization's programs to be reported to law enforcement within 24 hours?
Is Organization a chapter or affiliate of a larger organization?
If so, include larger organization's name.
Will the event involve food or the creation of materials to dispose of?
If yes, what time will clean-up, including removal of all trash and recycling generated by the event, be completed?
Organization's Library Contact (the person who will help them with any questions and address any concerns)
The ABC Library's mission is [INSERT].
As part of its mission, the Library requires that all people on Library property abide by all the Library's policies. In addition, while using the Space, Organization and any person at the Space in affiliation with Organization must at all times follow the below rules, and any reasonable request of any Library representative.
No harassing, abusive, or demeaning activity directed at any person or the Space.
No contact that violates any applicable law or regulation.
In the event of an emergency at the Library, Organization shall abide not only by the reasonable request of any Library representative, but also any first responder assisting with the emergency.
In the event of any injury to any person, or incident of property damage while the Space is in use, Organization will immediately notify the Library Contact listed in the chart above immediately. In the event of a crime or medical emergency, call 911.
Aside from those attending the event(s) in the Space sponsored by Organization, no filming or taking pictures of any individual in the library (visitor or employee) is allowed, without their express permission.
After use, the Space will be restored to the condition it was in prior to Organization's use, by the Organization, unless otherwise specifically confirmed with the Library Contact.
Organization will not promote the event using the Library/Space as the location until this contract is fully signed and (if applicable) Organization has paid the applicable Rental Fee.
Drafting note: if the Library does not own the building, add any other rules based on requirements in the lease.
Violation of any rules may result in the termination of this Contract with no refund, and denial of future use.
This Contract guarantees that Library will reserve the Space for Organization as set forth in the "Details" section, above. However, in the event the Library or a related entity experiences an emergency which, in the sole determination of the Library, requires the cancellation of the use (including but not limited to condition at the facility, weather emergency, or event requiring Library's emergency use of the space), Library shall notify Organization as soon as possible, and work with Organization to refund the fee or determine a new date, whichever is preferable.
To the greatest extent allowed by law, Organization hereby agrees to indemnify and defend and hold harmless the Library, its Board of Trustees, employees, agents, and volunteers, from any and all causes of action, complaints, violations, and penalties, and shall pay the cost of defending same, as well as any related fines, penalties, and fees, including reasonable attorneys' fees, related to Organization's use of the Space, including conduct by any third party or contractor present at the Space as part of the Event/s.
Organization shall provide insurance meeting the requirements shown in exhibit "A."
Drafting Note/Instruction: the person at the Library organizing the contract will either select the default insurance requirement, which is the conventional insurance demand, or it shall be determined that no insurance is required. For organizations conducting routine meetings, and especially if children are served by the Organization, the library's lawyer, and/or your insurance carrier will almost always advise insurance be required.
Person signing for Organization
The person signing on the line below on behalf of organization is at least 18 years of age and has the power to sign for the Organization.
Venue for Dispute
This contract and any related action shall be governed according to the laws of the state of New York, and Venue for any dispute shall be INSERT county, New York.
Accepted on behalf of the Library:___________________ on:___________
Accepted on behalf of the Organization:___________________ on:___________
My Director has asked me to ask you the following question. In normal circumstances the library would host the meetings of local organizations that do not have a building of their own. The library hosts the meetings of organizations like "Concerned Citizens", "Race Unity Circle", the "Bahá'í society", etc. All nonprofits that do not have large budgets and utilize the library for their meetings. Is the library legally allowed to use the library's Zoom subscription to host meetings for these groups as an Outreach Program? In the same way the librarian would be there to book the meeting, set up tables/chairs, and greet the group, the Zoom meeting would be booked, the link distributed to members, and the librarian there to open the meeting up at the specified time. I would be interested if your answer is different depending on whether the library is in an emergency closure situation or not.
Life is full of surprises. When I was in third grade, I was surprised to learn that this strange country called “Canada” occupied the upper half of North America. When I was in fifteen, I was surprised to learn that “brooch” rhymes with “roach.” And upon researching the answer to this question, I was surprised to learn that Zoom doesn’t have an “exclusive use” clause in their service agreement.
You may not offer or enable any third parties to use the Services purchased by You, display on any website or otherwise publish the Services or any Content obtained from a Service (other than Content created by You) or otherwise generate income from the Services or use the Services for the development, production or marketing of a service or product substantially similar to the Services.
In other words, Zoom doesn’t want you to “offer” your account out to another party (even if that party is a legit not-for-profit).
But the member has asked if they can serve as the “host” of the meeting, mirroring the way their library opens its doors for certain groups and gatherings. Both functionally and grammatically—and thus legally—this means the library is the one using the service. It’s like my law firm using our Zoom to host a board meeting for a client, since I need to be there anyway. Or, perhaps more closely, an educational institution letting a student group use its Zoom, so the student newspaper can soldier on.
So the stark, simple answer to the member’s question (“Is the library legally allowed to use the library's Zoom subscription to host meetings for these groups as an Outreach Program?”) is “YES.”
That said, being a detail-oriented, pro-risk-management, and liability-averse kind of attorney, I can’t just leave it there.
Physical meetings at your library all must follow some rules. Some libraries set these rules by policy, others confirm them with both a written policy and a facility use contract.
These documents ensure that the particular rules at that library will be followed. The same should apply when the library is hosting a Zoom meeting for your community.
Zoom’s “Acceptable Use” Policy expressly bars numerous types of activity, including but not limited to:
I imagine most libraries can endorse these conditions, but some may be (rightly) wary to impose content restrictions on meetings. While the limits your library has agreed to with Zoom is a contract the library has voluntarily accepted, I can see a (very) few instances where perhaps a first amendment concern could loom. So any library considering hosting Zoom meetings for users should think that aspect through thoroughly, and be ready to address it just as you address such concerns for physical meetings.
To help a library navigate these straightforward but choppy legal waters—especially the Zoom Terms’ bar on letting a third party use your account—here is a template “Virtual Meeting” Agreement.
NOTE: As always, template agreements should be reviewed by your library’s legal counsel to ensure they conform with your library’s charter, bylaws, unique identity, and other policies.
Videoconference Meeting Agreement—TEMPLATE ONLY
Person filling out this form [must be cardholder]
Meeting date, time, duration
Target date to send out the invitation
Please note: for the orderly operation of the meeting, pre-registration should be required, OR attendees should be given only limited participation ability.
Purpose of meeting (must be a purpose consistent with library operations)
Estimated number of attendees
Live stream meeting? Please list where the livestream will be accessible
Please list your group’s Meeting Facilitator
[see Meeting Facilitator Responsibilities below]
[To be filled in by library]
Library Staff serving as “host” on the videoconference.
Facility Use Policy
On the above date and time, the [NAME] library will host a meeting of the above-listed group for the above listed purpose.
It is understood that every attendee of the meaning will be expected to abide by both all the applicable rules of the library for meetings at our facility, and to observe any and all above-listed additional conditions.
The above-listed “Meeting Facilitator” should be logged in to the meeting at least 10 minutes before so they can discuss the orderly conduct of the meeting with Library Staff.
The Meeting Facilitator must discuss the functional aspects of the meeting with library staff before the start of the meeting; they should be prepared to discuss how attendees will be able to interact and how the relevant functions of the meeting will be used to meet the meeting's stated purpose.
The Meeting Facilitator should also be comfortable with using Zoom's capabilities to assist the Library Staff in hosting the meeting (monitoring the chat, moderating the discussion, muting or removing participants if needed).
When it is time for the meeting to begin, the library staff hosting the meeting will state:
“Welcome to [MEETING NAME]. Hosting an online meeting with your group is a service the library provides to our community groups without charge. Just as with hosting meetings in our physical space, the library must enforce rules regarding respect, non-discrimination, and accessibility. If you have concerns in that regard, please let me know by sending me a private message during the meeting. And now I’ll turn it over to [NAME] to start the meeting.”
It is expressly understood on behalf of the group that:
Please alert the library to any ADA considerations for hosting this meeting. For meetings with more than 50 participants, the Meeting Facilitator should be ready to discuss accessibility objectives with the Library Staff member.
We welcome your ideas for making our co-hosted meetings better. Constructive feedback may be sent to [e-mail].
Acknowledged: __________________________________ on DATE: ______________.
Unless there is a bylaw, policy, or contract barring staff serving as the meeting host, this is most definitely a service that can be offered even when your library cannot be physically open to the public. However, at all times, it must be clear that this is the library’s meeting. Account ID’s, passwords, and hosting capabilities should not be given away. Co-hosting should never be converted into changing the host. The meeting “intro-text” should be read every time; it is there to make sure that the library’s primary role is documented in every single meeting you host. Just like a meeting room should never be used when the library is not staffed, the virtual meeting room must remain in the control of your institution—otherwise, there could be concerns with the license.
And with that, I wish whoever at your library becomes the “virtual meeting staffer,” a stout heart, a quick finger on the mute button, and lots of community-oriented fun.
 I have since been informed that either pronunciation is acceptable. Fortunately, with my spare fashion sense, it is not a word I use often.
 The conditions in these documents will change from library to library. Some libraries have to enforce the rules of a landlord. Others will decide to charge a nominal fee (DO NOT do that for a Zoom meeting), or restrict use to a charitable use.
 By the time I got to this part of the list, I was thinking “Jeez, it’s an ugly world out there, and Zoom has a front-row seat to it.”
As we look to re-opening our public libraries with abridged services, we want to limit the chances of legal challenge from organizations who seek to make a statement about government response to COVID-19 and social distancing measures. We are considering a recommendation to have a brief policy manual addendum with policy adjustments that supersede the policy manual, have a short review and renew period (aligned with the library board meeting schedule), and are triggered by an objective, external to the library, event. What elements would we need to include in this addendum to make it legally enforceable, while not re-writing the entire policy manual?
Take, for instance, a library's meeting room policy. For a library with a 2,000 sq ft community room, with a normal occupancy of 250 persons and a seated occupancy of 150 persons (fake numbers), in which the board meets every other month.
- Initial addendum policy would have a line which said "Meeting Room: The meeting room is closed to all groups. Policy approved April 27, 2020. Will expire June 26, 2020."
- At the June board meeting the board passed "Meeting Room: The meeting room will open for library sponsored programming July 1st. Registration will be required and limited to 20 persons to follow current social distancing guidelines. Policy approved June 26, 2020. Will expire August 27, 2020."
And so on.
What are recommendations for the pre-amble of such an addendum? What should we make sure to include in the board motion to enact the emergency policy addendum such that it supersedes the standard manual?
This answer is being composed on May 9, 2020. New York is still fully on PAUSE, but the Governor has divided the State into ten districts who must hit seven defined metrics to begin rolling back various restrictions. Careful prognosticators are cautioning that what is rolled back can also be re-implemented, so caution and flexibility are the watchwords of the times.
In this context, many libraries are considering a phased resumption or extension of operations, and to do so, may need to adjust many of their standing policies.
As the member’s question highlights, the stakes for such adjustments can be high. The greatest risk in taking emergency and temporary measures are that: 1) they are not legal; 2) they create legal but mission-averse collateral consequences; 3) they are legal and perfectly mission-aligned, but still just make people mad.
Right now, libraries don’t have the luxury of time to fully mitigate these risks. But collecting, assessing, and documenting some steps, a library can do its best to avoid them.
Here is how to do that:
Step 1: Inventory your board’s authority and obligations
Library leadership seeking to temporarily adjust library policy to address COVID-19 must first assemble the following:
Many libraries will already have these assembled from previous such exercises.
Step 2: Inventory the specific policies your library needs to adjust
This “inventory” should include a citation to each policy your library needs to adjust, the basis of the need, any legal compliance considerations, what the precise terms of the proposed temporary change are, and, as the member writes, the reversion trigger of duration of the change.
This sounds painstaking and arduous, and it will be. Fortunately, when it comes to the painstaking and arduous act of organizing information, libraries have a home team advantage.
And don’t worry, in the next step I give you a chart to sort it all out.
Step 3: Identify what’s needed: alteration of the policy, or complete suspension?
In some cases, a policy will just need some small, temporary alterations to continue serving the requirements of the law and the needs of the library and its community. However, some policies are so complex, or so rife with temporarily unsafe practices, they will simply need to be suspended.
Here is a chart template that sets the “inventory” categories of Step 2, with examples the two types of adjustments:
1. Policy or obligation to adjust
2. Basis of need to adjust
3. Law or policy governing change
5. Reversion trigger or duration
Example: Policy temporarily altered
Policy B-2: Board Meetings
Limits on large gatherings and social distancing requirements requires limiting in-person contact
Board meetings are controlled by the Education Law Section 260 and Article 7 of the Public Officers’ Law (“Open Meetings Law”), but are temporarily governed by Executive Order 202.12.
As allowed by the EO 202.12, the Board shall meet via teleconference, and the audio shall be simultaneously available at a link on the library’s website, as well as recorded and transcribed.
This adjustment shall be in effect until the expiration of the terms of EO 202.12.
Example: Policy temporarily suspended
Meeting Room Policy allowing use on a reservation basis.
The Library wants to use the Meeting Room but must suspend community use to observe current social distancing requirements and health-oriented practices.
Executive Order # and #, as well as the usual laws governing use of library property.
To ensure observance of [cite EOs] the Meeting Room policy is suspended until two weeks after the last remaining restriction is lifted.
To allow time for cleaning and operational adjustment, the regular policy will go back into effect two weeks after the last remaining restriction is lifted.
Step 4: Contrast the adjustments with your library’s obligations
This is really a second look at the third column- “Law or policy governing change.”
It encourages your leadership—and ideally, your lawyer—to take a deep look at any standing legal obligations, and make sure your temporary adjustment doesn’t run afoul of them.
For instance, in the Meeting Room Policy example, let’s say that, per the policy, the library had a standing, written agreement for the room to be used by a writer’s group on a weekly basis. This might require an extra step in your adjustment to the policy, with some targeted outreach to cancel what might be regarded by the group as a written contract.
SPECIAL NOTE FOR LIBRARIES WITH UNIONS: Step 4 is especially critical if there is a union contract involved. Throughout this time of COVID-19 response, I have seen many examples of situations where a library’s prospective plans have been impacted by CBA provisions for emergency closure or other obligations. I have written about that at length elsewhere, so for now, will simply say: in all of this a library’s union should be an ally and critical stakeholder promoting employee well-being, and hopefully the need for any changes to routine policy and procedure can be approached in that spirit.
Step 5: Diplomacy Check
Technically, this is not a “legal” step, but I can say that in many ways this step is the most important part of avoiding needless legal threats and hostility.
Step 5 involves taking yet another look at the chart, and adding other two columns, covering: “Who will be impacted by this policy change?” and “How can we roll out the change to lessen any negative impact?”
Here is what these columns look like in my imaginary examples:
6. Who will be impacted by this policy change?
7. How can we roll out the change to lessen any negative effects?
Board Meeting Policy Example:
Everyone who relies on library board meetings as a chance to scour the budget and yell at the treasurer about how much was spent on new shelving, even though the purchase followed every bidding step required by state procurement rules.
The library will put up a sign on the front door, and in the usual places where the library sends formal notices about the meetings, saying:
“As you know, our board is meeting via telephone and working to keep our library ready to serve the community! You can hear our meetings at [link] or get a recording at [way]. We’ll have transcripts ready a month after the meeting. Please keep in touch by sending your comments to [NAME] at [ADDRESS].”
Meeting Room Policy Example:
People who really, really just want to see their writing group.
The director will ask [STAFF] to outreach to the regular groups, to see if they need assistance finding alternate resources while we wait to welcome them back.
And with all that legwork done, we can now answer the member’s core questions:
Question 1: What elements would we need to include in this addendum to make it legally enforceable, while not re-writing the entire policy manual?
The elements would be 1) a preamble setting forth the board’s authority, goal and process for the temporary changes; 2) a list identifying the policies that are temporarily suspended or temporarily altered; and 3) an articulation of the replacement policy or temporary changes.
Question 2: What are recommendations for the preamble of such an addendum?
Here is a template for the preamble:
The [NAME] Library was chartered in [YEAR] by the New York Board of Regents, and operates under the authority of that Charter, the New York Education and Not-for-Profit corporation law. In accordance with that authority and in compliance with the Library’s bylaws [OPTIONAL IF UNION AGREEMENT OR OTHER CONTRACTS ALSO GOVERN: and all other applicable obligating documents], to promote the mission of the library, the safety of all it serves and employs, and the needs of the community at this time, the following temporary changes to the following policies are made:
And here is how you link it to the other elements:
[INSERT chart with only columns 1, 4, and 5].
Question 3: What should we make sure to include in the board motion to enact the emergency policy addendum such that it supersedes the standard manual?
Here is template language for a board motion:
WHEREAS the State of New York is currently subject to Executive Orders governing the State’s response to the COVID-19 pandemic; and
WHEREAS the [NAME] Library’s mission is to [INSERT]; and
WHEREAS some of the Executive Orders impact the ability of the Library to fulfill its mission while abiding by its usual policies and procedures; and
[INSERT ONLY IF APPLICABLE] WHEREAS the Library is also subject to the terms of a collective bargaining agreement signed on DATE: and
[INSERT ONLY IF APPLICABLE] WHEREAS the Library is also subject to [variable]; and
WHEREAS the Library has developed temporary adjustments to its usual policies and procedures, with all due consideration of its standing obligations, to aid itself in operating safely and in compliance with the orders, and in period of recovery to follow;
BE IT RESOLVED that the following temporary changes, for the corresponding durations sets forth below, are enacted, effective immediately:
[insert chart with columns 1, 4, and 5]
AND BE IT FURTHER RESOLVED that the full chart setting forth these temporary adjustments shall be posted on the Library’s usual place for posting policies no later than [DATE]; and
AND BE IT FURTHER RESOLVED that the following measures to positively communicate these temporary adjustments shall be taken:
[INSERT measures identified in column 7].
When using these steps, it will be important to remember that an individual library’s response will be informed by not only their unique documents and priorities, but which of New York’s ten regions they are in. This means that what works for one library won’t necessarily work for a similar library in the next county over. Nor should one library be judged by what is being done at another.
And finally—and I have mentioned this in several columns lately, but I will mention it again—attorneys throughout New York State are stepping up to the pro bono plate these days. Now is the time to see if your library can enlist an attorney familiar with municipal, education, employment law, even if it is just to take a fresh, hard look at your final product. If you can’t find that attorney, you can ask for a referral from your local bar association.
By assembling the documents listed in this answer, and identifying your priorities and concerns in the chart, you’ll help that attorney help your library. In addition, I welcome questions from local attorneys who are helping their local libraries pro bono; they can reach me at firstname.lastname@example.org, or my library paralegal Jill at email@example.com.
As the member’s excellent question suggests, the more unified and well-developed the response of libraries can be, the more we can avoid challenges, and focus libraries’ energy on the business of serving the public. Sadly, the need for that energy will be great.
Thank you for giving me the opportunity to answer this very important question.
 Like a writers’ group saying: “Forget it. We’ll just meet at Starbuck’s.”
 For instance, if a patron brought a legal action under ADA, and the library reached a compromise it is legally bound to follow. Most libraries will not be subject to any such restrictions, but I want to ensure they aren’t forgotten.
 In my experience, unless the law mandates that you have one (for instance, certain libraries must, under the Education law, have an internet access policy) suspending a policy is also the way to avoid inviting arguments with people who will try and word-smith your temporary adjustments. As a lawyer, I do enjoy a good quibble, but there’s a time and place for it, and debating when a writer’s group can get back in the community room might not be the best use of energy right now.
 It really sounds like I am picking on this writer’s group! I’m not, we’re a fan of writer’s groups in my law firm (they produce writers, who are part of our client base). I think it’s just that in my mind everyone is, at this mid-May point, is very eager to resume normal social activity. I know I am. Meeting on Zoom is like eating low-fat olive oil.
 This is not a legal tactic tested on the bar exam. I learned this from my mentors at Niagara University, where I served as General Counsel for ten years. When legal strategy was proposed, their first thoughts were always about how it would hit the very real people involved.
 One of my favorite quotes about this phenomenon is from Parks and Recreation: “So what I hear when I am being yelled at is people caring loudly at me.”
 My poor staff. They just got used to New York being divided into nine library council districts, and 23 public library system districts. Val, our keeper of the “library map,” should be getting danger pay.
What laws or limits should libraries consider when storing and collecting patron account debts?
Who is responsible for compliance: the library where a patron is registered (they set their own blocking policies), or the system maintaining the records?
Similarly, does the library system (who manages an ILS on behalf of its member libraries) have the authority over library records, including that of purging library patron accounts, according to local policy?
On the surface, these questions are very simple, since they boil down to: what are the laws impacting the flow of data comprising patron debt records (bills, fines, referral to collections), and who needs to follow those laws?
Of course, underneath that simplicity, the questions are mission-critical. Libraries and library systems need to follow the relevant laws without error, and to ensure that while doing so, they reinforce the mission of their institutions.
For this question, we’ll assume “patron account debts” as referred to by the member, are the four most typical “cost” records that a library maintains about patrons:
Expressly excluded from this list of “patron account debts,” and from consideration in this answer, is debt related to deliberate property damage, personal injury, or express contractual liability.
And with those specifications in mind, here we go.
What laws or limits should libraries consider when storing and collecting patron account debts?
To get to the important details in this question, we have to start with the fundamentals.
The first legal consideration when storing and collecting patron account debts is the nature of your library or library system, which is governed by a combination of the New York State Education Law (“Ed Law”), and the New York Not-For-Profit Corporations Law (“NFPC Law”), your charter, and bylaws.
These laws and documents impact how your library or system 1) owns property; 2) sets the terms for that property to be borrowed; 3) maintains records regarding such activity; and 4) (if relevant) contracts with third parties (such as collection agencies or data repositories) to manage them.
The second legal consideration is the nature of the patron debts: are they set by law or regulation (like a tax or permit fee), or are they the by-product of a policy or agreement (like a service contract)?
The Ed Law and the NYPC Law, and related regulations, do not prescribe late fees, replacement fees, hold fees, or ancillary fees for patrons. Rather, the Ed Law emphasizes that use of a library should be without costs to its community, as can be seen in this excerpt from Ed Law Section 253:
The term “public” library as used in this chapter shall be construed to mean a library, other than professional, technical or public school library, established for free public purposes by official action of a municipality or district or the legislature, where the whole interests belong to the public; the term “association” library shall be construed to mean a library established and controlled, in whole or in part, by a group of private individuals operating as an association, close corporation or as trustees under the provisions of a will or deed of trust; and the term “free” as applied to a library shall be construed to mean a library maintained for the benefit and free use on equal terms of all the people of the community in which the library is located. [emphasis added]
This “free” access within the area of service is also emphasized in Ed Law Section 262, which states:
Every library established under section two hundred fifty-five of this chapter shall be forever free to the inhabitants of the municipality or district or Indian reservation, which establishes it, subject always to rules of the library trustees who shall have authority to exclude any person who wilfully [sic] violates such rules; and the trustees may, under such conditions as they think expedient, extend the privileges of the library to persons living outside such municipality or district or Indian reservation.
That said, state law does contemplate the need for libraries to incentivize the return of books, and in solving that problem, it does not mess around. As provided in Ed Law Section 265:
Whoever wilfully [sic] detains any book, newspaper, magazine, pamphlet, manuscript or other property belonging to any public or incorporated library, reading-room, museum or other educational institution, for thirty days after notice in writing to return the same, given after the expiration of the time which by the rules of such institution, such article or other property may be kept, shall be punished by a fine of not less than one nor more than twenty-five dollars, or by imprisonment in jail not exceeding six months, and the said notice shall bear on its face a copy of this section.
Forgive me if you find this boring, but I find it fascinating: New York State law’s only mention of fines in the context of accessing library services is a section that authorizes libraries to work with local law enforcement to impose fines and enforce the return of books through criminal prosecution. Meanwhile, the law makes NO mention of collection of late fees or penalties per policy or through civil debt collection.
Although Ed Law 265 is the only legislation to prescribe a remedy for failure to timely return library materials, I am not aware of any public or association library that actively uses it, although this ability has been on the books in its current form since 1950.
So if the debt a library patron owes a library isn’t a “fine” under Ed Law Section 265 (or up to six months in jail!), what is it?
Rather than pursue the “265” option, most libraries have elected to use the authority of their boards under Ed Law 226, and the NFPC Law, to simply condition the acquisition of a library card (and thus, access to core library services) on the patron’s knowing consent to a voluntary system of fines and penalties. In other words, patrons agree to pay money in return for the ongoing privilege of borrowing books.
While recent developments under consumer protection laws characterize it otherwise, this voluntary, quid-pro-quo condition of otherwise free library access is viewed by the law as “contractual.”
Library boards, empowered by the law to set policy for the proper functioning of the library, use this contractual system to:
This was a long answer to this second consideration, but it is critical. What is the nature of patron debt? It’s contractual. This is what enables library debt to be farmed out for collections, or certain patron debt to be discharged in bankruptcy. This will become relevant further into our analysis.
The third legal consideration is that every record related to patron debt is subject to the requirements of New York’s CPLR 4509, which means that—other than as needed for the proper functioning of the library—the records must be kept confidential. They are just as private as circulation records and internet searches.
The fourth legal consideration is the medium of the record: hard copy, or electronic (or both)? In the event the record is electronic, the SHIELD ACT, which went into effect this March, may govern the keeper’s security and data breach requirements.
And finally, the fifth legal consideration is: what are the parameters for enforcing or collecting on the debt, anyway? A combination of state and federal law, together with the library/system’s policy. We’ll tackle this factor in-depth in the “diagnostic” section, below.
Which brings us to the member’s next two questions:
Who is responsible for compliance: the library where a patron is registered (they set their own blocking policies), or the system maintaining the records?
Similarly, does the library system (who manages an ILS on behalf of its member libraries) have the authority over library records, including that of purging library patron accounts, according to local policy?
As you can probably tell by the remaining length of this “Ask the Lawyer”, there is not one, simple answer to either of these questions. In fact, there are multiple answers, controlled by multiple factors.
Here is a process for sorting those factors out, and ensuring your library or system is enforcing fines and fees within the boundaries of the law.
Does the library or library system avail itself of Ed Law 265?
Are you one of the rare institutions actually using (not just threatening to use) law enforcement to assist with returns? If “yes,” there should be a written policy for sending out notices and coordinating with local law enforcement.
Also, if you do this, please write me at firstname.lastname@example.org, because it would be really interesting to hear about your experience, you bibliophilic unicorn.
If the answer is “no” …
What document shows the patron has expressly agreed to pay the debt your library is charging as a condition of having a library card?
This would be the policies or terms the patron consented to follow when they signed up for their card. It should be a clear statement of fines and fees that patrons expressly agree to, and the patron’s express consent to that agreement (signified by a signature or authenticable electronic signature) should be demonstrable at any later date the library or system needs to enforce the debt. In some systems, this might even be covered in the member agreement (or a policy).
If the conditions showing a clear consent to fees aren’t clearly set forth in one document, or present at the time they are incurred (in a way that will show the patron knowingly incurred the cost), that should be corrected.
Many boards and staff inherited fee structures from previous administrations. It is wise to revisit the compliance and function of fine policies and the systems for enforcing them no less than every five years. This is particularly true since in the last five years, there have been changes to how fines may be collected, and changes to laws regarding maintenance of electronic records.
Is that “debt agreement” with a single library, or an entire system serving that library? Whoever the agreement is with (the “creditor”) is the entity directly responsible for how the debt is enforced and related legal compliance.
This is important to clarify. If the debt agreement is with a system, that system is the “creditor” and the system should be the entity maintaining the information, not the patron’s main library. On the flip side, if the debt agreement is solely with a library (and the system has separate terms, or there is no system involved) that library is the creditor, and is the party responsible for the information’s use and maintenance. The documentation related to fees, and the enabling policies, should leave no room for ambiguity in this.
This does not mean that any library within a system needs to conform its fine policy to all the others in that system. Rather, within the bounds of the law, it means that a system enforcing multiple member library policies must ensure that patrons have notice of the different fee structures they might be agreeing to, before the imposition of a fee.
Wait! What about library systems that maintain overdue records and enforce collections on behalf of member libraries? Or libraries and systems that contract those services out.
This is where terminology becomes important. In a policy to charge fees for late books and replacements, a patron becomes a “debtor” (an entity who owes money to another entity). The entity they owe it to (the library or system) is the “creditor.” Meanwhile, any third party hired to track the information related to the debt on behalf of the creditor is a “contractor.”
It is the creditor—the entity situated to assert a debt in a court of law—who is responsible for the proper management of debt-related information. While they can retain a contractor to manage the database, and even perform related functions (sending out notices, making calls to encourage returns), they remain the party ultimately responsible for use and maintenance of the information. They are also the sole party empowered to sign over the authority to collect the debt to an agent (a “collection agency”).
In New York, some library systems are the creditors, but some (if its founding documents, the membership agreement, and policies provide for it) are just the contractors for their member libraries. The ability to set this relationship up, and to effect the resulting responsibility and authority, starts with the entity type and its contractual affiliations, which will vary from system to system, and will change based on charter, bylaws, and strategic decisions.
This is why founding documents are always the “first legal consideration.”
What policy at the entity required to maintain the information (the creditor library or system) clearly sets out how debt-related information is generated, maintained, used, and purged?
It can have any number of names, but this policy should reference the terms the patrons have agreed to, all relevant laws, and be tied into the institution’s policy for data breach. If the creditor uses a third party to store the data, or a collection agency, baseline criteria for those contracts is also part of this answer. Further, the policy should specifically address how long fee records are maintained after they are incurred, and under what terms patrons might be forever barred from borrowing privileges based on such fees.
For libraries and systems that use fees, below is a sample policy that covers the different considerations of charging fees. Variable items are in yellow, critical items (meaning a library/system should have a clear policy and provision regarding this) are in red:
TEMPLATE Policy Regarding Terms, Records, and Payment of Patron Fees
Terms of Borrowing
As a condition of borrowing privileges, patrons agree to fees as set forth in [all documents listing a fee].
Education Law 265
The [XXX library/system] [does/does not] use the remedies allowed by Education Law 265 for the return of late items.
Threshold for Suspension of Borrowing
Patrons with over [$amount] of unpaid fees will have their borrowing privileged suspended.
Information regarding fees is housed on [place/entity housing information].
The security provision for [place] are [insert].
[Place] is only accessible to trained employees of [institution and any affiliates who must access it].
Notice of fees owed will only be sent out via sealed envelope sent via USPS, to the email of record of the patron, or provided on a printed paper upon the patron’s request in person.
Information related to fines shall not be conveyed over the phone unless as an ADA accommodation.
Once outstanding fees reach [$threshold amount], a third-party collection agency may be used.
The contract for any collection agency shall include a commitment to follow all relevant consumer protection laws and [insert priorities of the library regarding contact with patrons].
To ensure confidentiality of patron records as required by CPLR 4509, no such agency shall be authorized to contact patrons at their residence in person or via the telephone.
The [library/system] shall cease collection efforts as to any patron who informs the library that they have filed bankruptcy. To re-institute borrowing privileges during bankruptcy, the patron should send a copy of the bankruptcy filing to the library. In the event new charges after the bankruptcy filing again reach the threshold for suspending borrowing privileges, privileges will be suspended.
Other than trained employees, and any third-party collection agency, only the patron and those duly authorized per CPLR 4509 may access records related to patron fees. Collection notices may only be sent via USPS, and to the email of record to the patron; contact may only be via phone if initiated by the patron.
In the event a patron fee record is authorized or accessed in violation of this policy, the library/system will take all appropriate corrective action, and if required, will follow the notification procedures in the library/system’s policy regarding data breach.
Payment of fees
Fees will only be accepted by the [library/system] per the relevant fiscal controls, as set out in [reference fiscal control policy/ies, or the terms in a collection agency contract].
Unpaid fees are listed as “receivables” and accounted for in book-keeping as required by GAGAS.
Unpaid fees are no longer collectible in a court of law six (6) years after they are incurred, and thus are written off the books after six (6) years.
After unpaid fees are written off the books, the library will purge all print and electronic records of such fees, except for preserving de-identified data for purposes of assessing library operations.
Permanent Loss of Privileges
Patrons responsible for [$amount] of unpaid fees (based on any combination of late fees, replacement costs, or other unpaid fees), unless the debt is discharged in bankruptcy, will be permanently barred from applying for another card from the [library/system], and such record shall be maintained in perpetuity.
Template language, of course, is only provided so it can be conformed to the unique position, practices, and goals of your library/system. Within the scope set out above, there is a lot of latitude to do things in a way that reflects the unique needs of your institution. What is important is that there be clarity about the use of fees, and how they are managed. Further, institutions placing a high priority on collectability of fines should have the full suite of language reviewed by their lawyer annually.
What policy or standard operating procedure at an entity NOT required to maintain the information, but accessing it for customer service, clearly sets out how debt-related information is accessed and not improperly shared?
For collaborating entities with access but not responsibility for fee records (for instance, a member library within a system, or a system who must follow a member’s policy) compliance with a clear policy or SOP should be part of routine training for employees and volunteers.
Standard Operating Procedure Regarding Confidentiality of Patron Fees
The [XXX library/system] maintains confidential data regarding patron fees, including late fees and hold fees, on a password-protected database only available to trained employees.
The [adopting institution] accesses and adds to this information to assist patrons in accessing and addressing issues related to fees.
Other than trained employees, only the patron and those duly authorized per CPLR 4509 may access records related to a patron’s fees.
Notice of fees owed will only be sent out via sealed envelope sent via USPS, to the email of record to the patron, or provided on a printed paper upon the patron’s request in person. Information related to fines shall not be conveyed over the phone unless as an ADA accommodation.
In the event a patron fee record is authorized or accessed in violation of this procedure, the [adopting institution] will take all appropriate corrective action, and if required, will let [XXX library system] know, so it can follow the notification procedures in the [XXXlibrary/system]’s policy regarding data breach.
Fees will only be collected per the attached [relevant fiscal controls/policy/member agreement].
Employees are trained on this standard operating procedure prior to doing any work related to fees, and not less than annually.
This template language, is only provided to inspire a standard operating procedure that addresses critical details; any final SOP should be conformed to the unique practices of your library and system.
If a collection agency is used to encourage returns and enforce late fees, who retains the agency and monitors its performance?
This should only be the entity expressly authorized by the patron agreement to collect the debt (the “creditor”).
Is there a written policy for how the library or system accounts for patron debt in its books? When, if ever, is that debt written off?
Patron debt is a “receivable,” meaning it is on the books as money owed to the library, until the debt is forgiven or written off.
How long is a patron’s debt enforceable?
In New York, a debt owed per a contract is enforceable for six years, unless otherwise provided. Unless reduced to a judgment, efforts to collect debts that are enforceable run the risk of being considered unfair debt collection practices. However, a library can continue to condition borrowing privileges on truing up past accounts and returning/replacing lost items, even if they are not collectible in a court of law.
Does the record-keeping policy of the library or system tracking the patron debt continue the consequences for the debt after it is written off? Or does the policy not write off the debt, ever?
There is no “right” answer here, but there should be mission-sensitive harmony between policies and how the library is accounting for the debt. If a 1995 debt was written off the books in 2005, it might not make sense to enforce the debt’s consequences past 2015. Figuring this out is a great excuse for a library’s treasurer, accountant, and director to go out for lunch.
The final, final answers to the member’s question are therefore:
1) Every library and library system will have a different array of answers to the member’s questions.
2) The key take-away is that to ensure legal compliance about managing patron debt, an institution must address the above-listed considerations.
OK. I said I wasn't going to say anything, but I have to.
Anyone who reads the law can see that use of late fees is not a practice baked into the legal roots of public and association libraries. Rather, libraries in New York State are expressly created as free institutions—institutions assured the collaboration of law enforcement when there is an abuse of their free resources.
I appreciate that viewing the problem of unreturned books as a “criminal” matter can pose some concern for libraries. However, as a former criminal defense attorney, and now a business attorney, I can tell you that in many ways, a system that caps fines at $25 and holds the threat of jail time for anyone—even those who can easily afford larger library fees than some—is actually comparatively egalitarian.
That said, the fact that Education Law 265 is not more utilized shows that at some point, critical connections within communities (libraries and municipal prosecuting attorneys) were not forged to empower this approach. Rather, it seems that many libraries resorted to fines and collection operations, monetizing the human tendency to forget to return library books.
Over time, these fees were regarded as a revenue stream. In some places, it might even supplement budgets that should be fully supplied by sponsoring municipalities.
I see this failure to use 265 as a failing of the law. And as someone who has devoted their adult life to the law, that is disappointing to see.
That said, I take heart that in 2015, 30 states’ Attorneys General took action to ensure library fees could no longer impact people’s credit, limiting the toolbox of collection agencies enforcing library fees. And I am glad many libraries are taking fresh, critical looks at how to encourage responsible library use and good stewardship of library assets, without resorting to financial fees.
The plain and repeated language in New York’s Education Law states that public and association libraries are “free” to their communities. Compliance with that language should be the aim of every public and association library, even as they exercise their authority, also created by law, to protect their assets and serve their unique areas of service.
 Much data-driven, well-researched, and passionate content has been generated about libraries’ use of fines and penalties. This answer just sticks to using them with an eye to legal compliance.
 Meaning the debt is based on a specific, written contract with the precise amount owed set forth and signed by the patron.
 Since the maximum imprisonment term of six months makes the detention of a library book a misdemeanor, this remedy is “criminal”.
 Further, when one looks at the centralized guidance for operating a public or free association library in New York, the issue of fines and fees is not substantively addressed. While the excellent guidance here: http://www.nysl.nysed.gov/libdev/helpful/helpful.pdf states that policies, including those about fines, should be well-thought out, there is no background or guidance on fines.
 Without turning this into a law review article, I’ll simply say that since 2015, credit reporting agencies have not been allowed to add library fines to credit reports, because they are not viewed as “contractual” (see the settlement terms found at https://ag.ny.gov/pdfs/CRA%20Agreement%20Fully%20Executed%203.8.15.pdf). That said, in the legal biz, the conditioning of access upon the agreement to pay fines is “contractual,” and based on that construct, some libraries do use collection agencies to sue for unpaid fees.
It has been my conclusion that hold fees within cooperative library systems are contrary to relevant law and regulations. But that’s a column for another day.
 Of course, collection agency contracts should have protections and assurances requiring the agent to follow the law. That is partially to protect the creditor in the event their agent violates the law (and can also function to protect the library-patron relationship).
 An illustration of how such receivables are viewed under accounting procedures for public libraries can be found in this 2014 NYS Comptroller’s audit of Oswego Public Library: https://www.osc.state.ny.us/localgov/audits/libraries/2014/oswego_sd.pdf
 See Section 213 of New York’s Civil Procedure Laws and Rules. The limitation period to use Ed Law 265 is two years, but since 265 doesn’t seem like a popular option, we’ll just stick that fact in a footnote.
 The Fair Debt Collection Practices Act (“FDCPA”) prohibits the use of any false, deceptive, or misleading representation or means in connection with the collection of any debt (see 15 U.S.C.S. § 1692e).
 In many ways, it is akin to the addiction municipalities have to municipal court fees. If you ever need to hear a good rant, ask me about that one.
 The legal action discussed in footnote 7.
A note from the author:
When I was the in-house attorney at Niagara University (2006-2017), I had the privilege to be trained in the National Incident Management System’s Incident Command System (ICS), the nation’s system for organizing crisis response. At NU, I also co-authored the Pandemic Response Plan, and along with the IT Department, developed a system for not-for-profit “enterprise risk management” (addressing mission-threatening risks).
Through that work, I gained familiarity with the mechanics of pandemic response and recovery, and managing related issues.
Now, in collaboration with WNYLRC and other regional library councils, my law firm provides the “Ask the Lawyer” service to libraries. On a regular basis, I answer questions from libraries about board operations, property issues, and employee issues. Through that work, which I consider a great privilege, I have gained familiarity with New York’s libraries (although there is always more to learn), and the strong, diverse people who run them.
In addition, on a regular basis, I call upon the excellent resources from New York’s robust community of legal, regulatory, and career professionals, including the invaluable “Handbook for Library Trustees in New York State.”
This “Top Ten” guidance is the distillation of all that experience, combined with what I know about the COVID-19 situation as of April 7, 2020. I hope it is helpful. If you identify ways to make it better, or clearer, or easier to implement, please write me at email@example.com.
During a pandemic, all we can do it our best…on limited time.
I wish you strength as you lead your library through this crisis.
So, what are the “Top Ten Actions” a library board can take to foster a library’s mission and ensure its viability during the Covid-19 pandemic crisis? Here you go:
#1. Commit for each member to perform board work no less than weekly
Why? As you will see in the Remaining 9 items, even if your library is closed or operating at less than full capacity, there is a lot you can do.
#2. Set a “Crisis Response Goal” defining how your library will handle the current emergency and eventual recovery period.
We all know the COVID-19 pandemic, and our communities’ recovery from it, will not be over in April… or May…or June. It will affect us long beyond 2020. The impact will be deep and far-ranging.
Knowing this, we also know that a community library, open to all, will be a critical resource for every member of your community in the times ahead. With that in mind, defining how to preserve, promote, and connect that resource to its area of service is this critical--even at this time of reduced operations.
How do you do that? It starts with a simple statement by your board's leadership, known as a “Crisis Response Goal.”
How does a board develop a Crisis Response Goal? By envisioning and articulating what it wants to do and be throughout and after the crisis.
What does that look like? A good Goal articulates and reinforces your library's unique role in the community, and sets forth broad ways it will fill that role during this unprecedented time (the Goal is not where you worry about minutiae).
An example Goal is:
“During and after the COVID-19 pandemic, The Library will serve the community, fulfill its mission, and meet the goals of its plan of service by meeting the public's need for reliable information, providing access to critical resources, and serving as a hub of community organization.”
The key is to focus on what you will do (not how you will do it).
The template to create your library’s Crisis Response Goal is:
During and after the COVID-19 pandemic, The [NAME] Library will serve the community, fulfill its mission, and meet the goals of its plan of service by __________________________, ______________________________, and .______________________________________.”
And that is your Goal…your library’s statement to the world about what it will be and do through this crisis.
The remaining items on this list are how your Board will rally your resources to make the Goal a reality.
#3. Use a “Crisis Response Team” approach
At this time, an effective board is concerned about numerous things: The safety of the library and the community it serves, the fiscal impact of the current crisis, the reduced or eliminated operations of the library, its relationship with its community, making appropriate decisions about employees, the stewardship of the library's physical assets, and how to meet its plan of service.
No board can meet as a single body and address all of these things effectively, even if they meet once a week. There would be too many voices at the table (or too many people being seen and not heard). There would be no room for assessing facts and novel thinking.
How does a board handle this multi-faceted crisis situation? Create teams.
What will those teams do? Well, at least one person who can navigate the OSHA website should have primary and consistent responsibility for safety. At the same time, people with the fiscal skills and experience must gather to assess the immediate and long-term impact of the situation on the library's finances. Meanwhile, another group with business and HR skills and experience should focus on mission and plan of service (“operations”). And finally, a person or small group with communications skills should have primary responsibility for thinking about public relations and outreach to the library's primary stakeholders.
Finally, one or two people should play the role of team leader. The Team Leader’s primary role will be connecting the work of each group, and the professional staff, to enable critical decision-making and developing a response plan.
The Team Leader will also ensure the library director is supported as they continue their duties under a time of duress, that the director is positioned to contribute to the work of the teams as needed, getting them vital information, and collaborating on the formation of the library’s strategic response.
The rest of this guide is about creating teams to use this approach.
#4. Assess your board’s capacity, and reinforce it where needed
When considering a crisis response team approach, which organizes a board into small sections working towards the same Goal, it is important to be honest about your capacity. As a group, you need to take stock of your board.
Many of the skills and attributes that make someone a valuable board member in non-pandemic times (fund-raising, deep knowledge of books and culture, ability to rally volunteers) might not be the only things needed during the initial phases of a pandemic response.
Further, many boards, faced with this crisis, may be feeling overwhelmed. Unless a person has guided a not-for-profit organization through a crisis such as a fire, major PR event, or disaster such as 9/11, the experience of the average board member might be tested by the current situation.
That is OK. We are all feeling tested.
The good news is, if your board does not have the capacity to assemble teams with the experience listed in #3, your board is allowed to add non-board members to non-voting committees, or to invite them to meetings as guest advisors. Now is the time to bring on a few “ringers.”
How can that be done?
If you don't have anyone on your board who feels up to the task of considering safety first at all times, invite someone on who has experience with OSHA regulations or standards from the New York Department of Labor.
If your fiscal team doesn't have access to a seasoned accountant or CPA who can assess the current budget, run fiscal projections, and help you develop models for your library's financial options, see if you can find one who will donate some time to your library.
If your board does not have someone experienced in business, employee relations or human resources, and you need to take action regarding contracts and employees, bring a new person on.
And if your board doesn't have someone with public outreach skills, perhaps you can find someone with appropriate experience from within your own community networks—or reach out to someone new.
As you assess your board’s capacity and look to shore up any needs during this time of pandemic response, remember this: this is a special time. Some people may be working more than ever, and not able to help out more, or at all…while others are finding themselves under-occupied. Small business owners on your board may not be able to help at all. Others may be on unemployment and able to step into the gap. ALL OF THAT IS OKAY.
If you identify a gap in your board's experience, it may be that you can fill it just by asking. The important thing is to be honest about what your board can do, and not fudge it.
#5. Form your board’s Safety Team
The COVID-19 pandemic is causing incalculable impact on business operations and the functions of day-to-day society. However, it remains first and foremost a public health crisis. That is why, if you choose to use a crisis response team approach, the first team your board should appoint is the team responsible for safety.
What is the “Safety Team’s” role?
When the full board is considering a team's recommendation, the safety team’s role is to ensure the board fully considers the safety implications of any one course of action.
For instance, if there is a decision to have one library employee check the mail every day, the safety team is asking: Is this safe? Is there a way it could be made safer?
If your Safety Team has the time, they should also be available to your other teams during the later phases of crafting a recommendation, so work is not wasted. In addition, your library director should at least be a consulting member of this team, since they are in charge of the staff, and will be responsible for putting emergency procedures into effect.
Your Safety Team will spend time on public health resources such as the CDC website, the OSHA website, and will monitor your county health department's recommendations and advisories. In any action related to your library's response, they are only thinking about safety and the health of the community. This includes the health and safety of employees, volunteers, and the board.
While other members of your board, on other teams, may be worried about fiscal viability, public relations, or operations, your Safety Team is always putting safety first. This includes planning for the safety and well-being of your community when your library is contributing to your community's recovery.
The Safety Team takes on this primary responsibility so the other teams can focus on their roles, while the full board knows it is set up to always put safety front and center.
#6. Form your board’s Fiscal Team
The current crisis is going to hit public libraries in a variety of ways, and for many, the fiscal hit will be especially hard.
While some communities will immediately rally around their library as a critical central resource, others may use the crisis as an opportunity to seek budget cuts and de-funding. Libraries that have relied on fines and hold fees as revenue sources will find those sources diminished. And always, there is the question of how to compensate and retain staff at this unprecedented time.
This is why appointing a Fiscal Team with the skills to assess the current situation, run projections, reach out to fiscal sponsors, and develop plans for the financial stability of your library is key.
While this group can be small, consisting of perhaps two or three people, it must be mighty. As mentioned in #4, at least one member—who might perhaps be an invited advisor or non-board committee member—should have seen a not-for-profit institution through a fiscal crisis in the past. You will need this person’s wisdom and perspective.
The immediate tasks of this group will be assessing the impact of the situation and developing a short-term plan for financial viability. That short-term plan shouldn't go much further than the end of April or mid-May. After that, the plans will need to consider various contingencies. For this reason, the group should include, or regularly invite, the library director.
Another immediate task is assessing the stimulus money your library may be able to rely on. For some libraries, this will include the Payroll Protection Plan, and other aid. For others, it may be collaborating with government funders to ensure some portion of government aid will be allotted through your government to your library. Identifying these options is something that group should focus on throughout mid-April.
It is this last area—identifying options and contingency plans-- where the team approach becomes truly valuable. While your Fiscal Team will be assessing your library's needs and the possible ways to obtain those needs, the Team Leader and/or Outreach team will be forging connections with funders to coordinate identified assistance that is needed. Between the team leader and the Fiscal Team, it is important to determine who will meet with municipal fiscal authorities on a regular basis (something I encourage, if your library is dependent on a tax levy from a sponsoring municipality).
It is the job of the Fiscal Team to provide solid, reliable, and situationally-adjusted financial information and options for the other teams (especially Operations) to work with.
#7. Form your board’s Operations Team
A bit of background on this one…
The state of New York has always encouraged local autonomy for libraries. This is a wonderful thing that means wherever you go in New York, there are unique and special libraries waiting to be discovered.
This also means that every library in our state is facing a slightly different situation when it comes to pandemic response. Rural libraries are facing different challenges than urban libraries. Suburban libraries in one county will face different challenges than suburban libraries in the next county over. And this isn’t just about location—it’s about service. While one library might be a beloved source of donated food, another may be the community's lifeline to certain key services. Another library may be a vital source of senior programming, while in another community, it’s the toddlers that will be missing out.
Considering this diversity, there is no one-size-fits-all package for developing a team that considers a library’s operations…you are all just too darn unique.
So with that background, what is the role of an Operations Team during the crisis response? It considers the critical operations of the library, and develops plans to adopt or carry on those operations during a time of crisis response and—critically--recovery.
This starts with an inventory of operations.
For instance, it is the responsibility of the Operations Team to consider the impact of the situation on and develop solutions for staff at this time. And while this work must be informed by both the Safety Team and the Fiscal Team, the Operations Team is the one that should have the human resources or labor law experience to consider how to continue or adjust the employment terms of the staff at this time period.
Another task will be to review the routine activities of the library, and determine which ones will be suspended and which ones will be adapted and carried forward into the present situation, and how that will be rolled out.
It is important to emphasize that the Operations Team will not make these decisions, but rather, informed by the Goal, and with the input of the director (just as with any operations planning process), will bring forward well-developed recommendations for the consideration of the full board.
Many of the items the Operations Team will consider will have implications for safety. The operations team should do their best to build consideration of safe practices into their recommendations, and only then have things reviewed with a fresh eye by the Safety Team.
Operations, because its span will be large, might be the largest team, and for reasons of efficiency, may wish to divide into sub-teams, and will require the most input from the director, who may also bring in further input from the staff. One way would be for some members to take the lead on operations during the emergency, while the rest develop ideas about how the library can help during recovery.
#8. Designate your board’s Crisis Response “Team Leader”
The purpose of breaking the responsibilities for a crisis response into teams is to allow work to happen with deep focus and great frequency. It is also to ensure that quick, decisive and well-informed action is not bogged down in the inefficiencies of a large group.
That said, a library's board must continue to function as a board, and per the bylaws that govern it.
Pulling all of these considerations together—effective use of teams, adherence to bylaws and policies—is the job of the Team Leader.
A natural fit for the Team Leader might be your library's board chair. However, if your board chair is a CPA and is best suited to doing the work of leading up the fiscal team, or will be spending the bulk of their time coordinating necessary aid with representatives from municipal government, it is appropriate to consider designating another board member as Team Leader.
What does the Team Leader do? The Team Leader pays attention to what is happening with each and every team, and connects and pulls their work together as needed. They also identify when matters are ready to be presented before the full board for discussion and a resolution, and ensure the work of the teams is done in healthy cross-collaboration with the work of the director.
This role does not have to be played by the board chair. This role should be played by someone who has the capacity to connect regularly and meaningfully with each team, who understands the proper dynamic between a board and paid staff, and who has the skills to identify when a matter is ripe for full board consideration. They should know the bylaws and library policies, and make sure the use of the team structure does not depart from them.
A good team leader, at this time, also needs to be accessible through phone, e-mail, and video conferencing. If a person can’t reach out in multiple ways, they might not be the best person to lead the teams. As with everything else, THIS IS OKAY. Regardless of the role a person plays, it is all part of your fiduciary duty to support the best interests of the library.
(P.S. on that last part: there is nothing wrong with a Team Leader designating an out-of-school child or grandchild as the “Library Crisis Response Team Leader Tech Support,” something that would look good on a future college or job application! Just make sure they can take the role of setting up calls and meetings seriously. My 15-year-old has been pressganged into helping with many a meeting.).
#9. Designate your board’s Public Relations Team
The impact of this crisis on your library will also have a huge impact on your community. The energy of those who support and are supported by your library (the “stakeholders”) need to be channeled to mitigate that impact as much as possible.
How do you harness that energy? Just like your Operations Team, the role of your PR Team is going to change depending on the unique situation of your library. However, the overall goal of any PR Team is to ensure that the “Goal” of the library, and the things it is doing to achieve that Goal, are articulated to the stakeholders in an accessible, regular and reliable way.
For example, if your Goal is:
“During and after the COVID-19 pandemic, The Library will serve the community, fulfill its mission, and meet the goals of its plan of service by meeting the public's need for reliable information, providing access to critical resources, and serving as a hub of community organization.”
It is the job of the PR Team to get that message out to stakeholders in a way that will be heard. This doesn't mean just repeating the goal everywhere verbatim (a good Goal never sounds very sexy). Rather, it means getting the message out in a way that will be actively observed.
For example, a plain-language way to promote the Goal above would be putting a poster on the front of the library that says “Our doors are closed but our librarians are here for you! Find us at @@@ or call ######!” Things like this are the job of the PR team (unless your library is so vast you have in-house PR, in which case, I doubt your library needs this “Top Ten” list in the first place).
It is also the job of the PR team to harvest all the information about how the library is reaching out to the public at this time. That way, when the time comes for budget review and fund-raising, your library will have a solid archive of examples about how it is invaluable. For this reason, consider having a staff member as an advisory member of this team—or even have a staffer perform this function as part of their adjusted job duties.
Because it must be nimble in its messaging, the PR Team is the one team that should be empowered to take action without a board vote. The “Crisis Response Team Formation Resolution” presented below takes that into consideration.
#10. Be Just Good Enough—and form a Crisis Response Team
Here are some hard truths:
But by using a Crisis Response Team-informed model, you will set your board up to succeed more than you fail.
If you choose to use this approach, my advice is to not just recycle the formations of your standing committees of the board. Consider the value of shaking things up, inviting “advisory” members, involving the director as needed, and organizing your teams to spur new and novel thinking. Consider carefully who is reaching out to your library system, your council, and your elected leaders.
For a small board, there will by necessity be some overlap in teams. That is fine. Just be careful to not overload any one person. This situation will be a marathon, not a sprint.
In the event you determine a crisis response model will be helpful to your library in the coming months and even year ahead, here is a resolution to enact it:
Crisis Response Team Formation Resolution
WHEREAS the current state of emergency due to the COVID-19 pandemic is still in effect as of [DATE OF MEETING]; and
WHEREAS the [NAME] library has already had to consider the impact of the state of emergency on the library; and
WHEREAS the board anticipates the state of emergency and following recovery period will impact library operations for the remainder of 2020; and
WHEREAS the board has determined that the emergency and recovery period will require and enhanced model of leadership to ensure the library emerges from the emergency and recovery period in a manner that best prepares it to serve the needs of the community and fulfill its mission and plan of service;
BE IT RESOLVED, that during and after the COVID-19 pandemic, the Goal of the [NAME] Library will serve the community, fulfill its mission, and meet the goals of its plan of service by __________________________, ______________________________, and .
BE IT FURTHER RESOLVED, that the board shall use a “crisis response team” model until it votes that the period of recovery is concluded and such structure is no longer needed; and
BE IT FURTHER RESOLVED that the board’s Crisis Response Team Leader, responsible for coordinating the work of the different teams and identifying when solutions are ready for board consideration and resolution, shall be NAME, and the designated back-up Team Leader shall be NAME; and
BE IT FURTHER resolved that a Safety Team consisting of NAME and NAME shall be responsible for maintaining awareness and raising the issue of safety in all actions related to the board's response to the pandemic emergency and recovery , including the safety and well-being of the community we serve and those the library employs, and shall comment on each recommendation brought to the full board for implementation per the bylaws, prior to any vote; and
BE IT FURTHER RESOLVED that a Fiscal Team consisting of NAME, NAME and NAME, responsible for assessing the financial impact of and financial options available to the library during this time of pandemic emergency and recovery such fiscal response team shall bring recommendations to the full board for implementation per the bylaws; and
BE IT FURTHER RESOLVED that an Operations Team consisting of NAME, NAME and NAME, responsible for assessing the impact on operations and options available to the library, including but not limited to operations related to mission, plan of service, employees, and the role of the library in the community's response to the pandemic, shall bring recommendations to the full board for implementation per the bylaws; and
BE IT FURTHER RESOLVED that a Public Relations Team consisting of NAME and NAME, responsible for creating and effecting accessible, regular, and reliable communications of how the library is meeting the Goal is empowered to send out messages as needed, in the medium deemed appropriate by that Team; and
BE IT FURTHER RESOLVED that the [board or other] may add participants to these groups as authorized by the bylaws; and
BE IT FURTHER RESOLVED that no team created by this Resolution may take any action or vote that binds the board, and are purely advisory; and
BE IT FURTHER RESOLVED that in no event is any action of this Crisis Response Team Plan to interfere with the ability of the public to have access to meetings and actions of the board; and
BE IT FURTHER RESOLVED that each team shall meet no less than weekly; that the Team Leader shall ensure the full board is advised to meet as needed to implement team recommendations when they are ready; and that all notifications and conduct of such board meetings shall be consistent with the bylaws and the requirements of any current or modified operations of the Open Meetings Law.
That’s it. It’s a lot, I know. But your library has probably weathered other storms: depressions, wars, local crises. Now is your time to add to that history. In that task, I wish you strength, health, and persistence.
Our library is arranging more online programming in response to COVID-19 closures and reductions. What should we be thinking about in making these arrangements?
Can a library sponsor an online class open to the public? YES.
There are just a few details to attend to:
1. The financial details
Libraries do not charge for programming, but can pay others to offer library programming for free, so as the member says, this online program should be open “to anyone.”
The instructor can still be paid, but the payment should come from the library, while the on-line attendees tune into this library program for free.
The trick in this is to avoid “fiscal hybridization,” (with the library hosting and promoting the event, and the instructor getting some payment from some attendees).
2. The online content details
Once your library has confirmed the financial details, there should be complete understanding about the following questions:
Can the library promote the class using the instructor’s name and likeness?
Will the session be recorded?
Who owns the recording?
Will the library be able to use the recording for as long as it wants?
What platforms will the session and recording be hosted on?
Will the recording be put in the collection of the library?
What social media will the session be promoted on?
Will the session use music (that could stop it from being posted some places, like YouTube)?
That’s it, nothing fancy, just have some things to have clarity about.
3. The participant details
Once you have the details of the way the class will go “out there,” confirm:
Who is our target audience?
Do they have any particular vulnerabilities?
Do we need to consider ADA access such as captioning?
How will we collect feedback on the programs?
4. The contract details
With all that minutia settled, here is a template agreement to organize the details.
Of course, as with all template contracts, if you can, have this template customized for your library by your local lawyer or insurance carrier.
ONLINE INSTRUCTION AGREEMENT
The [LIBRARY] (“Library”)and [NAME] (“Instructor”), with an address of [ADDRESS], to provide critical health programming at a time of state-wide pandemic emergency, agree as follows:
Instructor will offer classes in ____________ (“__________ Classes”) from [PHYSICAL LOCATION] to Library’s patrons and others via:
[INSERT HOSTING METHOD AND STREAMING SITE(S)]
Classes will be live streamed at [INSERT TIMES, DATES].
The ___________ Classes will be a target audience of those who can benefit from online social gatherings to participate in ___________________.
[in case of activity involving a professional license] Instructor’s professional license was granted by [LICENSING AUTHORITY] and is current; if the license expires or is revoked during the term of this agreement, Instructor will notify Library immediately.
[in case of instruction involving physical activity] To promote safe participation, at the start and end of every class, the screen will read, or the Instructor will say:
[INSERT Instructor’s preferred safety and wellness message; here is a sample that is customized for the times:
[ACTIVITY] is intended as a gentle but serious exercise. Please consult your physician prior to any physical activity that could impact your health, and only participate within your know abilities. Please stay safe during this time of social distancing and enjoy our class.]
___________ Classes will be promoted as a free program of the library and Instructor shall not charge individual attendees for these sessions.
Library will pay Instructor _____ per session.
Instructor has agreed to provide this programming on a volunteer basis.
Instructor agrees that no music or other copyrighted work other than content owned or properly licensed to Instructor and Library shall be used during recorded or live-streamed __________ Classes.
Instructor agrees that Library may use their name, likeness, and image when promoting ____________ Classes. Library agrees that Instructor may use its name, likeness, and image when promoting _____________ Classes.
All sessions of __________ will be recorded by [INSERT] and the recording will be jointly owned by Instructor and Library. This means both parties shall have the right to make copies, distribute in any way, or otherwise use the copyrights to the recordings.
Instructor hereby agrees to hold harmless and indemnify Library for any claim, cause of action, or injury arising from the creation, promotion, and participation in ________ Classes.
Instructor is an independent contractor and no partnership, joint venture, or relationship other than what is in this Agreement is created or implied by this Agreement.
The Parties both understand that this is an agreement during a time of emergency and this contract may be terminated without notice. Any changes to this contract shall be confirmed via e-mail reflecting clear mutual agreement by the parties.
This agreement is governed by the laws of the State of New York.
Signed for Library on _________:_______________________
Signed for Instructor on _________:_______________________
5. The assessment details
As with any library program, a live-streamed event is one for the staff to watch, monitor, and assess on a continual basis. This will allow you to assess if the promotion, the session, and the recordings comply with the Agreement, and to make enhancements based on participant feedback. It is also another way to limit the risks inherent in the activity.
Just as critical, though, will be feedback that the class felt accessible, gave good instruction, and had a positive impact.
I wish you many valuable and rewarding online programs.
 I also would not have a concern with it being restricted to card-holders within a system, or card-holders registering in advance to participate for free.
 The instructor could also do this as a volunteer, but if they do good work, it is nice for them to get paid.
 If you can, this template should be reviewed by the lawyer who knows your library best. But given the current crises and the need to reach people quickly, and the strain on budgets, I appreciate that you might laugh at this footnote.
We are seeking guidance as a result of the following:
We have been informed (by the Health Department and via news media) an individual who now has been confirmed to have COVID-19 attended a program at one of our libraries. I have been asked the following questions:
1. To what extent is it the responsibility of the library to notify participants who attended the library program the person now diagnosed with COVID-19 attended?
If the library bears no responsibility, would you recommend the library, as a courtesy, notify attendees? What of others who may have been in the library at the time of the program - in many cases, the names of these individuals are not known...are we placing the library in a liability situation if we notify some, but not others? If you suggest a courtesy call, can you please provide suggested language?
2. CPLR 4509 speaks to the confidentiality of library records. We have always employed that this further applies to the identification of anyone using the library, those participating in programs, etc. -- meaning that NO information can be provided to anyone without a proper subpoena. Given that this is a situation related to the health and well-being of our community should (they have not, but this is a question that has been asked) the Health Department request the names of program participants does CPLR apply? If so, can you recommend a response to such a question.
Thank you for your assistance.
To address this very serious array of questions, we’ll take them one at a time.
To what extent is it the responsibility of the library to notify participants who attended the library program the person now diagnosed with COVID-19 attended?
The library is not obligated to notify individual members of the public regarding possible exposure; the county health department is obligated to notify the New York State Department of Health, and will coordinate the necessary level of response.
If the library bears no responsibility, would you recommend the library, as a courtesy, notify attendees?
In a time of pandemic, information is power. If the library has the capacity to notify attendees in a way that connects them to meaningful next steps, AND the County Health Department agrees that such notification will be helpful, then: yes, that would be a good thing to do.
However, because the slightest bit of mis-information in this step could potentially cause harm, such a courtesy should only be done in collaboration with the County Health Department.
What of others who may have been in the library at the time of the program - in many cases, the names of these individuals are not known...are we placing the library in a liability situation if we notify some, but not others?
An effort to empower people, through information, to take care of themselves and minimize the spread of disease will not expose the library to liability in the event only known attendees can be alerted. As stressed above, the greater risk would be mis-informing the public, which is why coordination with the county health department is key.
If you suggest a courtesy call, can you please provide suggested language?
For reasons of confidentiality and accessibility, the notice should not be a verbal phone call, but rather (and only if confirmed as helpful by the County Health Department), a written notice sent to the library’s user’s email address.
Suggested text for your library to review with the health department is:
Dear Library Member:
As you know, the [INSERT] [County Department of Health] is monitoring the development of COVID-19 in our county.
As you can see at the listing [here], the Department has determined that on DATE, a person with COVID-19 attended the [INSERT PROGRAM NAME] program at our library, which ran from TIME to TIME on DATE.
Because the [NAME] Library values every member, and because we believe knowledge is power, we are working with the county to notify individuals who we know were present at the event. As advised by the County’s guidance [here], encourage you to monitor yourself daily for symptoms of COVID-19.
Further information on what to do in the event of a health concern is on the Health Department’s website at [link].
Your library information is confidential and your participation in the [NAME] event will not be released unless upon your request.
Given that this is a situation related to the health and well-being of our community…[if] the Health Department request the names of program participants does CPLR  apply? If so, can you recommend a response to such a question.
Yes, the confidentiality requirement of CPLR 4509 absolutely still applies. Here is the language of that law:
Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute.
Because CPLR 4509 is so clear in its protection of patron information, I am not comfortable concluding that disclosure to a County Health Department is allowed for the “proper operation” of the library, or even in the case of a declared emergency. Even during times of trouble, we need to follow the law.
However, if the library has the capacity to do so, upon request of the Health Department, the library can write to the impacted patron, and see if the patron will request the disclosure.
Sample outreach to see if the patron wants their information released is:
As a result of a person who visited the [NAME] library testing positive for COVID-19, the county health department has the name and contact information of other patrons who visited during the [EVENT].
By law, your library information is confidential. Therefore, the [NAME] Library will only disclose your information if you request that we do so.
Please let us know if you would like us to release your name, address, and phone number on file with the library to the [COUNTY] County Health Department.
You may also directly call the County Health Department about this at [NUMBER]; if you do, tell this it is regarding the COVID-19 case as the [NAME] Library.
In the alternative, the County Health Department may obtain the information via a subpoena or court order.
Those are my answers to the member’s questions. Here are some additional thoughts:
Legal compliance and ethics are strong supports during tough times. Thank you to the member for thinking this situation through so thoroughly.
 10 NYCRR 2.16v
What recourse may a library board take, if a former director removes all library files from a library owned computer that relate to the running of the public library?
Every employer struggles with this issue: give employees enough access to electronic information to do their jobs, but protect that information from accidental disclosure, file corruption, and theft.
Solid practices like routine security updates, back-ups, password re-sets, and employee training can help a library avoid the worst IT disasters. But what if someone in a position of trust simply abuses their access? What if a scenario like the member's question should arise?
There is a process to address this type of scenario. In order to ease an adrenalized mind, it is presented below in grid form.
Upon suspicion that files have been removed or inappropriately removed by a former library employee, follow these steps to assess what recourse a board might have:
Why you do this
1. Upon suspicion that files have been removed, if possible, do not take further steps alone.
Create an "Initial Response Team" of at least two people to do the next four steps, and designate one of them as the note-taker and document-keeper.
If your library's computer system is supplied or supported by a cooperative library system, one of these people should be from the system.
Organizing a time-line and take photos or screenshots of information showing the potential problem.
The facts you assemble and first steps you take may have far-reaching consequences for your library's response and recovery, as well as for the potential wrong doer.
At this stage, however, you'll just be documenting what appears to be missing. No deep-dive investigation. It should only take an hour or two.
Initial Response Team formed and responsibilities of team members made clear.
Note-taker assembling information.
2. Without letting it take more than an hour (or two) and without making any changes to your system, assess and create an informal list of what appears to be missing (file types, specific types of information, locations), when this was noticed, and what the first signs of the concern were. This will be your "Initial Inventory."
You need to have a foundation for your next steps, so you're creating a quick description of the possible situation.
An Initial Inventory you will use in the next few steps.
Note: The "Initial Inventory" is not an attempt to assess what happened, just to list what might be missing, and a few initial details.
3. Look over the Initial Inventory. Could any of the missing files contain personal/private information, such as: name, address, date of birth, ssn, library card number, credit card information, contact information, banking information, health-related information, computer use, passwords, or circulation records?
If the answer is "yes," add the phrase "…possibly includes loss or compromise of private information and/or library patron records" to the Initial Inventory.
This part of the Initial Inventory will help those assessing the issue quickly appreciate the possible privacy and confidentiality implications of the situation.
4. Contact the library's insurance carrier, and alert them that you may have had a loss of data related to "unauthorized computer access that may involve a former employee."
If your Initial Inventory includes a "yes" to Step #3, also state: "The situation may have involve personal and confidential information."
If your initial contact is by phone, confirm the notice via a letter or e-mail.
Depending on your library's insurance type, you may be covered for this type of event.
Notifying your carrier and following up in writing will help the library determine if the carrier will provide coverage and/or assistance for the event.
Timely notice to the library's insurance carrier, enabling your carrier to let you know if you have coverage and if they can provide assistance in recovering from the event.
NOTE: If the event is covered, some or all of the remaining steps could be impacted by the participation of the carrier.
5. With the Initial Inventory complete and the carrier on notice, the board (or director, if the board has delegated the right amount of authority to them) must decide who is in charge of next steps: the full board, a board committee, the Director and a team, or any combination of people needed to assess the matter.
This "Response Team" should have the power to appoint a qualified professional to assess the situation, to retain legal assistance if warranted, and to recommend a final course of action to the board.
In no event should a report to the board (or Executive Committee) extend the timeline for arranging a response beyond 3 business days.
Unauthorized computer access involving a former director (or any employee) is serious enough to warrant board involvement, whether or not personal and confidential information.
This is especially true since, in a worst-case scenario, the library may have to report a data breach, expend resources to re-create or retrieve the information, work with an insurance carrier to recover from the loss, consider if any aspects of the former employee's contract or severance apply (if there was either/or) and based on what is discovered, consider whether or not to file a report with law enforcement.
Clarity as to who is in charge, what level of authority they are working with, and who they will bring on to assist with the investigation and recovery.
6. Alert the library's lawyer by sending them a copy of the Initial Inventory, and connect them to the Response Team, so they can assist at needed.
It will be the lawyer's responsibility to work with the Response Team and others to ensure the library is positioned to seek relief from the carrier or the former employee, to assess any relevant contracts (for instance, if the files were deleted from a cloud server), and to advise the board about filing a report with law enforcement, or pursuing civil remedies.
Attorney-client privileged input to help assess response options in the best interests of the library.
7. The Response Team should retain a qualified IT/data security professional to assess and develop an "Incident Report" with a Final Inventory of what is confirmed as missing, a conclusion as to how it went missing, and if/how it can be recovered.
This should be done within 3 days of discovery and before there are any changes to the system. Ideally, this work should only be performed after the library and the IT professional sign a written contract that is reviewed by the lawyer.
A contract with a qualified firm;
A certificate of insurance from the professional firm;
A written Incident Report from the firm.
8. Based on the value, sensitivity, and type of information in the Final Inventory, work with the IT professional and lawyer to assess any legal steps the library must take to recover or to give required notifications of data breach.
Depending on what went missing, the library could have concerns under any number of laws.
The final recommendation should be a memo to the board, regarding any necessary steps (or confirming not are needed).
9. Based on the complete Incident Report's assessment of what is missing, how it went missing, and if/how it can be recovered, and any relevant details about the employee, develop a course of action.
For more on this aspect, see the rest of this RAQ.
What happens as part of number "9," is the actual answer to the member's question. But until a library follows steps "1" through "8," it can't fully know its options under "9."
And what can happen as part of "9"? The range of consequences for unauthorized computer access and/or data destruction is vast, running from criminal penalties to civil remedies. And if considered with solutions for how a library can recover from the loss, there are further possibilities.
If I was on the board where a former director removed all the library files from a library owned-computer that relate to the running of the public library, at the end of the day, here's what I'd want get out of "The Files Are Gone" process:
By demanding solid, well-documented and qualified answer to these questions (What happened? how does it impact the library? What can we do?) a board member is being a good fiduciary, and positioning the library to identify the best recourse.
Now let's say that, in the grand scheme of things, the "missing files" appear to be pretty minor (and do not involve private information). Let's say that, for whatever reason, the outgoing employee deleted all the library's "standard operating procedures." Not the policies--those are on the library's website and backed up in numerous places - but all the details about (as the question says) "running the library:" How to organize the courier manifest. The templates for the volunteer letters and community meeting notices. The budget template and calendar for strategic planning. Their own emails on their library account. Nothing private, no circulation or credit card information, but a body of work that represent hundreds of compensated hours…lost.
This may seem like the kind of loss that isn’t dire enough to warrant the steps I have outlined above, but it absolutely is. First, only a professional can say when data is truly "lost" (especially emails). And even if, at the end of the day, there is a board decision not to pursue any consequences (privately, civilly or criminally), such (in)action must be based on good information--not just the result of a decision not to investigate in the first place.
The budget for such response, if planned carefully, can be very modest (under $1500). Reaching out to a library's system and regional council to find the professional you need might help the library get those services at a reasonable price (and again, depending on the system-library service agreement, much more).
Why am I adamant about this follow-through, even for a "small" incident? Because sometimes a "small" incident is only the tip of a much larger iceberg. Unauthorized data destruction by a former employee could be a serious breach of their duty, the law--and even their oath of office. But it might not be. The right response, and the fair response, can only be formulated through careful documentation and analysis.
This is what positions the board to know what recourse it can take, when presented with such a serious situation.
Thank you for trusting "Ask the Lawyer" with this sensitive question.
 If you are reading this while working on this type of issue, take a deep breath. You've got this.
 There are too many types of IT supply/support arrangements out there for me to be more precise than this. Some systems are essentially the IT department for their member libraries. Others are not. This aspect will be governed by the System's member contract…but generally, a good place to start is on the phone!
 In keeping with the question, this chart addresses what to do if the person involved is former employee. If the person is a current employee, the Response Team should include someone qualified to assess an appropriate response that ensures 1) due process for the employee; 2) security for the investigation; and 3) stability for ongoing operations of the library.
 Is this a low-ball figure? Could it be much bigger? Yes. But if it gets much bigger, that should be because it's actually a big problem that needs to be solved.
We are a Special Legislative District Library. We are constructing a new library and will be selling our current building. I would like to know if there are any specific steps we are legally required to take in selling the property. For example is public notice of the sale required? Are we required to entertain a certain number of offers, etc.? Thank you for any information you can provide.
A new library building! How exciting. And what a huge additional array of additional duties it presents, as the library begins to think about moving.
Transitioning library space is a huge undertaking. And when it involves selling the legacy structure previously occupied, the task can get even bigger.
Here are just a few of the plot twists I have run into during real estate deals involving old buildings:
Why am I setting out this litany of events, when the member just wants to know if there are any posting/bidding/process requirements when a Special Legislative District or “SLD” public library sells a former building?
I mention them because every real property transaction—no matter what type of library is involved—is different. And while the base requirements to transfer the building are actually very simple (we’ll get to them soon), the lurking contingencies can create painful extra “required” steps if not addressed well before the sale.
So, before I confirm the one step that absolutely must be taken, here is the “Ask the Lawyer: Basic Factors for Painlessly Selling Your Library Building.”
Why You Consider It
What You Do With It
Your Library’s CHARTER
Your Charter may list the location of your current building. So before you move or move to sell the structure, make sure the details aren’t at odds with anything in your founding document.
Okay, this is very important: Start a folder or a file on a shared drive. Going forward through this list, we’ll call this your library’s “Sale File”.
The “Sale File” is going to contain everything your library needs to gather to anticipate complications and get your legacy property ready for sale.
Your Library’s BYLAWS
The bylaws may reference the library’s location, and more importantly, they are the key to a board resolution authorizing the sale.
Put the bylaws in the Sale File.
Your lawyer will prepare the resolution the board must pass to authorize the sale of the property based on what’s in the Bylaws.
The DEED to the property.
The deed is proof that your library owns the property; it is also proof of the exact boundaries of what is to be sold.
Put the deed in the Sale File.
If you can’t find it, DON’T PANIC, you can get a copy from your County Clerk.
The SURVEY of the property.
The survey is a precise measurement of the property. It is also a nice picture of the property, and shows important things like the exact acreage, and where your fence (if you have one) is.
Put the Survey in the Sale File.
If you can’t find it, DON’T PANIC, but alert your lawyer (see more on that below) because you’ll need one, and it will be an expense related to the sale.
Any DONOTION DOCUMENTS or CONTRACTS that the property is controlled by.
Your legacy building may have conditions on the ownership. This is a huge variable and it is important to address or rule in or out right away.
If you have any DONATION DOCUMENTS or CONTRACTS related to the building, put copies in the Sale File.
It will be the job of your lawyer to affirmatively rule out any donor direction or contract conditions controlling the property, but they can’t deal with what they aren’t aware of.
Any LIENS or MORTGAGES on the property.
Your legacy building may have been used to secure a loan, or perhaps a sub-contractor has a lien related to a contract dispute.
If a valuation of the property was conducted as part of a loan, that should go to the lawyer, too.
These also need to go in the Sale File. But generally, these are public documents, and can be obtained at the County Clerk’s. And if you don’t know about them, don’t worry: it will be the job of your lawyer to affirmatively rule out any “burdens” on the property (although the library will likely have to pay them off).
Any DEFECTS or DANGEROUS CONDITIONS the property has.
Hard-working, older legacy buildings can have problems, and your library’s awareness of any defective or dangerous conditions will likely have to be disclosed as part of the sale.
This is best planned up-front.
Once you have a lawyer for the sale, work with them to discuss any awareness the library has of lead paint, asbestos, mold, or any other conditions of concern. Although certain conditions must be disclosed as part of a sale, this initial discussion should be done during a consultation that is protected by attorney-client privilege.
The building’s ASSESSMENT.
Chances are, as a non-tax-paying entity, your library has not paid much attention to its assessment. However, if the sale is to a non-exempt party, this number is going to get relevant. It is good to consider that factor up front.
Yes, it goes in the Sale File.
The Library’s LAWYER
In the boxes above, the word “lawyer” appears more times than the rules for good writing allow (for pacing and to avoid being repetitive, I should have said “your attorney,” and “your legal counsel”, but I wanted to make a point here).
I trust you see the pattern that is emerging: real property transactions are complicated (we haven’t even gotten to the library and not-for-profit-specific stuff yet) and the sooner a knowledgeable attorney is assessing the transaction and making sure the library has addressed any contingencies, the better.
(NOTE: now that I have made my point, I will use synonyms for “lawyer”).
An attorney retained by the library to handle this transaction should bring the following to the table:
1. They should have handled at least three other transactions involving the transfer of real property owned by a not-for-profit;
2. They should provide the library with a retainer letter that quotes not only the rate for the closing (usually there is a “range” in a particular area), but the hourly rate for work on things like your bylaws resolution, dealing with any lingering concerns, etc.
3. The attorney should be asking for the items in the “Sale File” (and more) if they don’t have them already.
The board should not be afraid to ask for proposals and to comparison shop!
The library’s REAL ESTATE AGENT
This person should only be appointed after you determine your lawyer (if appointed at all). If your library does use a licensed realtor, they should be selected for both their previous experience with similar properties, and their ability to productively cooperate with the library’s attorney.
The real estate agent should also be under contract (a contract first examined by the library’s lawyer) and the library should never agree to the agent serving in a “dual” role for the seller (the library) and the buyer.
A VALUATION of the property
As fiduciaries of the library, your board owes it to the institution to work for the best possible price (unless the property is to transfer in something other than an “arms-length transaction”; more on that later). This means their vote to sell should be backed by reliable information, provided to the board without bias, and based on professional credentials.
The board should consider the valuation, along with the input of the lawyer and the real estate agent, prior to resolving to accept a contract of sale.
If relevant, the building’s LANDMARK status or location in a designated historic building, and any documents pertaining to its HISTORY.
This can impact the use your buyer can make of the building, and can also impact the costs of rehabilitating or renovating it.
Marketed properly, historic status is a benefit. But you have to find the right buyer. It is a big factor to plan around.
Once you’ve assembled the “Sale File,” the attorney retained to assist the with the sale will be able to help the library chart a path forward.
Why do I keep emphasizing the early involvement of an attorney? One look at all the variables created by the factors in the chart above (and my bullet list of “interesting” contingencies) shows why the early involvement of a lawyer is necessary.
Now, at this point the astute reader will probably say: “This is a great chart and all, Ms. Lawyer, but are you really answering the member’s question? They asked about required steps for the sale of a special legislative district library.”
The reason the chart (partially) answers the member’s question—or rather, positions someone to answer it—is because, based on the variables listed on the chart, there may be numerous steps required in the sale.
But what steps—no matter what—are required?
For a library whose building is not owned or controlled by a village/town/city/county, the sale is governed by a combination of the Education law, and the NY Not-for-Profit corporation law, which empowers a library’s governing board to acquire and dispose of library assets in a way that best stewards the overall well-being of the library. No public posting or precise bidding process is required. But there is one thing:
No matter what—the board will need to pass a resolution approving the sale…after receiving sufficient information to show they have examined the sale terms and made a decision in the best interests of the library.
How do you show the contract terms are in the library’s best interest? By considering them in light of the library’s overall position, and the factors in the Sale File.
Now, with all that being said, I do have to emphasize an important distinction: the transfer of a library building is different than the transfer of an entire library. The transfer of an entire public library as a “going concern” may be subject to a municipal vote, which is allowed by Education Law Section 266. But, as ruled in 1992 in the case of Briody v. Lewiston, Section 266 does NOT apply to the sale of only the library’s building.
The Briody case, by the way, is a great example of why a library sale requires careful legal planning. In that instance, the library conveyed its legacy building “pursuant to an agreement entered into in 1972, which provided that, if the Library moved to another location, it would convey its property to the Town and Village, which could dispose of the property for any purpose.” On the chart I provided above, this type of “Briody contingency” would be caught by a combination of factor 5, addressed by factor 9.
The good news is, when a library has already gone through the intricate dance required to fund, plan, and contract for a new building, they likely already have an attorney “briefed and ready” to assist with the sale of the old. That attorney will also be in the position to help the library plan for contingencies that could delay the move (such as—shudder—complications during construction).
So, what steps get you to that board resolution, and a smooth process? Assemble the Sale File, ask your attorney out for a stroll, and start planning a sale the board members can vote for with full confidence that they are making the best decision for the library.
Best wishes for an easy Certificate of Occupancy, a smooth transition to the new building, and a sale that shows the trustees are formidable fiduciaries!
 Man, they used to put that stuff in everything but breakfast cereal.
 SO COOL.
 Okay, I can’t promise it will be painless. But think of this as the difference between working out regularly and running a 5K without training.
 I probably don’t need to tell an audience of librarians what a great resource a county clerk can be. For instance, the Madison County Clerk has this great resource for finding deeds on their website: https://www.madisoncounty.ny.gov/DocumentCenter/View/152/How-to-Obtain-a-Copy-of-Your-Deed-or-Mortgage-PDF?bidId=
 I love buildings, especially when they ooze history and charm (sadly, this also means they might ooze lead and asbestos). When a cultural institution is transitioning space, I often call the “old” building the “legacy” building. It’s a way of saying “We’re looking to the future, but we honor the past.”
 Municipalities have to follow an array of “highest bidder” or return-on-investment rules, and yes, there will be some requirements on the process, too. But when those apply, it is not a sale by a public library, it is a sale by a municipality.
 Except for books. There are special rules on those (Education Law Section 226, the same law that gives library trustees authority over property). And of course, any assets governed by special grant terms or a donor contract.
 Unless the board is selling the building AND closing the library, or disposing of “substantially all” of its assets. THEN you need permission of either the NY Supreme Court or the NY Attorney General for the sale. But happily, that is not the situation here.
 591 N.Y.S.2d 909, 1992 N.Y. App. Div. LEXIS 14855, 188 A.D.2d 1017
With the NYS Shield Act taking effect in March 2020 what changes or precautions should libraries be thinking about to comply with the law and minimize the risk of data breaches?
There are many technical aspects to this question, and this answer will explore many of them. But first, I invite each reader to sit back, close their eyes, and envision the types of information their library takes in, maintains, or manages digitally.
Name…address…phone number…e-mail…library card number and account information. Perhaps a driver’s license, or other photo ID. Credit card information? Job applicant information, payroll, and employee data…. Donor information. Survey responses. Licensed lists. Content related to digitization. And (of course) every digital record related to a library’s core function: providing information access.
Now envision what someone with less-than-ethical intentions could do if they accessed or appropriated that digital information:
Disclose confidential library records…sell active credit card information on the dark web...use the information to design a very convincing phishing scheme….
And I bet you can easily think of more.
Scary? You bet it is. This is the type of risk-management New York’s lawmakers had in mind when they enacted the SHIELD Act, a far-reaching amendment to the state’s laws governing data security.
And as the member points out, the changes will impact your library.
So, what does this law require?
And here is where we get technical. Because the law will hit different types of institutions differently, this “Ask the Lawyer” can’t give you a word-by-word recital of the precise obligations the SHIELD Act will impose on your institution. But it can give you a plain-language DIAGNOSTIC FORM to help your board, your director, and your (internal or external) IT team a tool to start assessing your obligations.
So here, without further ado, is the ‘ASK THE LAWYER’ SHIELD ACT DIAGNOSTIC FORM. If you have a buddy to fill this in with, I suggest you invite them to help, this is not the type of exercise to do alone.
[NOTE: Any member of a library council in the State of NY is licensed to make a copy of this form for diagnostic purposes. However, THIS IS NOT INDIVIDUALIZED LEGAL ADVICE and no legal conclusion about the obligations of your institution should be made without the input of a lawyer. That said, filling this out will help that lawyer help you a lot faster.]
Does your library collect electronic versions of “personal information” as defined by SHIELD?
Here is the definition of “personal information”:
"Personal information" shall mean any information concerning a natural person which, because of name, number, personal mark, or other identifier, can be used to identify such natural person.
If your library collects “Personal information” as defined by SHIELD, it may be subject to SHIELD’s requirements.
So, if you marked “yes,” keep going!
Does your library’s network or equipment collect electronic versions of “private information” as defined by SHIELD?
Here is the type of data that, when combined with “personal information” becomes “private information” protected under SHIELD:
(1) social security number;
(2) driver's license number or non-driver identification card number;
(3) account number, credit or debit card number, in combination with any required security code, access code, [or] password or other information that would permit access to an individual's financial account;
(4) account number, credit or debit card number, if circumstances exist wherein such number could be used to access an individual's financial account without additional identifying information, security code, access code, or password; or
(5) biometric information, meaning data generated by electronic measurements of an individual's unique physical characteristics, such as a fingerprint, voice print, retina or iris image, or other unique physical
representation or digital representation of biometric data which are used to authenticate or ascertain the individual's identity; or
(ii) a user name or e-mail address in combination with a password or security question and answer that would permit access to an online account.
If your library collects “private information” as defined by SHIELD, it may be subject to SHIELD’s requirements.
So if you marked “yes,” keep going!
(NOTE: if any libraries out there are using biometric records like retina scans in place of library cards, please let me know, because that is Bladerunner-level cool).
Does the “private information” your library collects include information from residents of New York?
If your library collects “private information” relating to New Yorkers, it may be subject to SHIELD’s requirements.
So if you marked “yes,” keep going!
Is your library part of a larger institution such as a school, college, university, museum, religious institution, or hospital?
If the answer is “yes,” then STOP.
Your work on SHIELD ACT compliance should be coordinated with your full entity, who should be sensitive to not only your library’s obligations under CPLR 4509, but your institution’s obligations under SHIELD and other data security laws like FERPA and HIPAA.
Don’t go rogue!
Does your institution contract with another entity, like a library system, to maintain private information?
EXAMPLE: When a person applies for a library card, does the personal information supplied stay on the local library’s network, or does it simply flow through a terminal at the local library to a system’s network? This is a very common arrangement in NY.
If “yes” list and attach the contracts, along with the information maintained by the contractor.
This question applies to both parties.
If the answer is “yes,” gather the contract(s) governing the arrangement(s), and be ready to check the contracts for assurance of SHIELD compliance. This includes assurance of “reasonable security requirements,” and a clause governing data breach notification.
Now, aside from information maintained on another entity’s network as listed in #5 above, (library system, payroll service, credit card service provider, etc.) does your institution maintain any computer system with private information?
If yes, list the information gathered and where it is maintained:
If the answer is “no,” you only have to follow step #7, below.
If the answer is “yes,” make an appointment with your IT team, and be ready to do steps #7 through #15, too.
Contract compliance check:
If you answered “yes” to #5, above, the contracts governing that relationship would be clear about SHIELD Act compliance, including the notification procedures for data breach.
Who is the person at your institution who will do this work with your contractors?
This is a smart step because contract vendors must meet this standard:
Any person or business which maintains computerized data which includes private information which such person or business does not own shall notify the owner or licensee of the information of any breach of the security of the system immediately following discovery, if the private information was, or is reasonably believed to have been, accessed or acquired by a person without valid authorization.
Okay, so it looks like my institution has to comply with the SHIELD Act. What does that mean?
Any person or business which conducts business in New York state, and which owns or licenses computerized data which includes private information shall disclose any breach of the security of the system following discovery or notification of the breach in the security of the system to any resident of New York state whose private information was, or is reasonably believed to have been, accessed or acquired by a person without valid authorization.
So, does your institution have a policy for data breach notification?
Your institution may already have one! If so, it should be updated to reflect the changes in the law.
If it doesn’t have one, now is a good time to get a policy in motion.
The law lists the steps and requirements for notification. Among other things, those requirements can depend on the size and nature of the breach.
NOTE: a data breach response is something a library should respond to with a qualified IT team and, if there are concerns about liability and compliance, a lawyer and your insurance carrier.
Any person or business that owns or licenses computerized data which includes private information of a resident of New York shall develop, implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of the private information including, but not limited to, disposal of data.
Does your institution have a policy to implement these “reasonable security requirements?”
Your institution may already have one.
If so, it should be updated to reflect the changes in the law.
If it doesn’t have one, now is a good time to get a policy in motion!
NOTE: ***I have put the SHIELD Act’s criteria for a data security program next to three asterisks in the text following this form.
Thirdly, are you a small library and feeling panicked about your security requirements?
Don’t worry, if you’re a “small business,” the law has a provision related to your obligations.
Here is the SHIELD Act’s definition of a “small business”:
"Small business" shall mean any person or business with (i) fewer than fifty employees; (ii) less than three million dollars in gross annual revenue in each of the last three fiscal years; or (iii) less than five million dollars in year-end total assets, calculated in accordance with generally accepted accounting principles.
So (deep breath) are you a “small business?”
If the answer is “yes,” then your “reasonable security requirements” are tempered:
…if the small business's security program contains reasonable administrative, technical and physical safeguards that are appropriate for the size and complexity of the small business, the nature and scope of the small business's activities, and the sensitivity of the personal information the small business collects from or about consumers.
This analysis is why having an inventory of the private information maintained by your library (or for your library) is critical; depending on the “sensitivity” (or use) of what you maintain, your plan can adjusted for what is “appropriate.”
Just to reiterate: if you have gotten this far into the assessment diagnosis, you should probably have a “data breach” plan—even if it is just for coordinating with the entity who holds most of your data.
So: do you have a “Data Security and Data Breach Notification Policy and Procedure?”
As can be seen in the factors cited in the sections above, policy and procedures related to data security and data breach notification cannot be a cookie-cutter based simply on what other libraries do. Your policy and practices will be governed by many factors.
Are you insured for data breach and recovery?
This is a great question to ask your insurance carrier! You should also be familiar with their notice requirements in the event of a hack or breach.
Who at your institution is responsible for coordinating your data security program?
This responsibility should be confirmed in a job description and reinforced with regular training. Working with your system or other larger supporting entity may be important, too.
Who are your outside contractors assisting with emergency response in the event of data breach?
This is a good standing contract to have, and one that systems and councils might consider jointly negotiating for on behalf of members (and hopefully it is a service you never need to invoke!).
Did you ever think, when you chose a library career, you’d get to moonlight in IT?
IT and libraries: two great tastes that go great together….with enough planning.
And that’s the SHIELD Act.
How does a small not-for-profit tackle this expansion of data security laws? Like anything else: inventory your status under the law, establish a goal for compliance, develop a budget and a plan, make sure the responsibility is appropriately allocated, confirm insurance coverage alignment, use all the resources at your disposal (your system, council, insurance carrier, and board members who have lived through data breach compliance) and get it done.
In practical terms, this is also means:
The penalties for violation of the SHIELD Act are $5,000 per violation, in an action brought by the New York Attorney General (the law doesn’t create a private right to sue). Other changes to the law make it easier for the AG to learn of data breaches, and to coordinate with other law enforcement agencies trying to combat them. As we envisioned at the beginning of this article, the states for a breach are high.
But don’t worry. No matter where your diagnosis falls, remember: libraries have been operating under heightened privacy obligations since before there were computers. That mindset—awareness of an ethical duty to protect privacy--is the most important part of a program to minimize the risk of breaches.
You’ve got this.
Thanks for a great question.
***A data security program includes the following:
(A) reasonable administrative safeguards such as the following, in which the person or business:
(1) designates one or more employees to coordinate the security program;
(2) identifies reasonably foreseeable internal and external risks;
(3) assesses the sufficiency of safeguards in place to control the identified risks;
(4) trains and manages employees in the security program practices and procedures;
(5) selects service providers capable of maintaining appropriate safe-guards, and requires those safeguards by contract; and
(6) adjusts the security program in light of business changes or new circumstances; and
(B) reasonable technical safeguards such as the following, in which the person or business:
(1) assesses risks in network and software design;
(2) assesses risks in information processing, transmission and storage;
(3) detects, prevents and responds to attacks or system failures; and
(4) regularly tests and monitors the effectiveness of key controls, systems and procedures; and
(C) reasonable physical safeguards such as the following, in which the person or business:
(1) assesses risks of information storage and disposal;
(2) detects, prevents and responds to intrusions;
(3) protects against unauthorized access to or use of private information during or after the collection, transportation and destruction or disposal of the information; and
(4) disposes of private information within a reasonable amount of time after it is no longer needed for business purposes by erasing electronic media so that the information cannot be read or reconstructed.
 “We just need your bank information to refund your library fees since 1987 with interest!”
 SHIELD stands for "Stop Hacks and Improve Electronic Data Security".
 Why? Well, if you’re lucky, it’s because it will be boring. But chances are, it will be all too exciting, as you discuss the different types of data your library maintains and explore the data security obligations that come with it. And if that happens, you’ll need one person filling in the form, while the other one looks up information—and you’ll both want someone to share your sense of urgency when it’s over.
 NOTE: This is a huge change in the law, which used to only apply to businesses in New York. Now it applies to any business that collects the information of New Yorkers; a big difference and one that impacts businesses out-of-state.
 Institutions subject to HIPPAA have special provisions to ensure disclosure obligations aren’t redundant.
I need clarification about the IRS regulations on 501c3 organizations. A local political group asked to use our meeting room space for a 'meet the candidates' event, a library trustee thinks this is not compliant with the "The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations" https://www.irs.gov/charities-non-profits/charitable-organizations/the-restriction-of-political-campaign-intervention-by-section-501c3-tax-exempt-organizations
I think our meeting room policy is very out of date and restricting access to the room based on content of the meeting violates 1st amendment rights, as outlined by ALA: http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/meetingrooms
No staff are involved in this event, we have not helped plan it and it was made clear on all the publicity the political group put out that the library is only the venue, we are not hosting, this is not a library program.
This answer comes with many disclaimers, because the legal parameters of room access and rental at chartered libraries in New York is variable territory. In other words: the answer can depend on the library’s “type” (set by its charter), its fundamental rules (found in the bylaws), its IRS status (the “501 (c)(3) mentioned by the member”), its day-to-day rules (controlled by policies), its lease (not all libraries own the space they occupy), and any deed restrictions (although deed restrictions on the basis of speech would bring concerns).
That’s right: education law, not-for-profit corporation law, tax law, real property law…this question has it all!
That being said, the member’s question centers on federal tax law; specifically, the library’s 501(c)(3) status, which not only makes the library tax-exempt, but allows it to receive tax-deductible donations. This status is an important fund-raising asset, and its many conditions (including not engaging in politics) cannot be taken lightly.
Here is what IRS Publication 557, the go-to for creating a tax-exempt entity, has to say about political activity:
If any of the activities (whether or not substantial) of your [501(c)(3)] organization consist of participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office, your organization won't qualify for tax-exempt status under section 501(c)(3). Such participation or intervention includes the publishing or distributing of statements. Whether your organization is participating or intervening, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Certain voter education activities or public forums conducted in a nonpartisan manner may not be prohibited political activity under section 501(c) (3), while other so-called voter education activities may be prohibited. [emphasis added]
Like many guides from taxing agencies, this one is superficially helpful (I put that part in bold), but upon examination, employs a disclaim that gives very little concrete guidance (I underlined that part). So, what’s a library with a spare room to do?
As alluded to in both the member’s question and my opening paragraph, this question doesn’t turn solely on the IRS. Any 501(c)(3) library that rents or allows free use of space should have a robust “Facility Use Policy” that considers not only IRS regulations, but safety, equal access, and operational priorities (requiring users to clean up after their meeting, to not be noisy, to respect the space). For a library in a municipally-owned building, care must be taken to ensure use fees are applied in a way that does not violation the NYS Constitution. And for a library that rents, the Facility Use Policy must harmonize with the lease.
But the member’s question is about 501(c)(3). So, having established that this consideration is but one of many when giving access to or renting space, here are the three things to consider when a 501(c)(3) rents or gives access to space:
1) Rental income needs to be a very small percentage of the library’s revenue.
Section 501(c)(3) requires that income from renting space can’t outweigh donations and other sources of income related to the library’s tax-exempt purpose. This is something to discuss with the library’s accountant; while rental income isn’t barred, it can bring funding ration and tax consequences that warrant the attention of a professional.
2) The use of the space can’t “inure” to the benefit of any one company or individual.
Section 501(c)(3) also requires that a qualifying organization’s resources can’t directly benefit any one person or entity more than the general public. For example, free use of the spare room by a person conducting a stained-glass workshop with an admission fee (even a nominal one), can be considered an “inurement.” 
3) As raised by the member’s trustee, the use of the space cannot violate the bar on lobbying (influencing legislation) and political activity (supporting a particular candidate for office).
And as reviewed, Section 501(c)(3) bars political activity (as further defined in the excerpt from 557, above).
“Ask the Lawyer,” has had some fairly large answers, but I don’t have space to address every occurrence that could run afoul of the bar on “political activity.” But what about renting space, on the same terms as to any other entity, to an event like the one described by the member?
Here is what the IRS has to say:
Can a section 501(c)(3) organization conduct business activities with a candidate for public office?
A business activity such as selling or renting of mailing lists, the leasing of office space or the acceptance of paid political advertising may constitute prohibited political campaign activity. Some factors to consider in determining whether an organization is engaged in prohibited political activity campaign include:
a. Whether the good, service or facility is available to candidates in the same election on an equal basis,
b. Whether the good, service or facility is available only to candidates and not to the general public,
c. Whether the fees charged to candidates are at the organization’s customary and usual rates, and
d. Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate.
When developing a Facility Use Policy, if a library is a 501(c)(3) charitable organization, and wishes to be able to rent space to (among others) political organizations for event, the above-listed factors should be built right into the policy.
Here is some sample language (some of it will sound familiar):
As a 501(c)(3) organization, the NAME library does not participate or intervene, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Therefore, the use of space in our facility by political organizations or for partisan political events is only available on the same rental terms as for the general public, and is subject to a rental fee that is charged equally to any political group or other individual or group. NOTE: Certain voter education activities or public forums conducted in a nonpartisan manner may qualify for a fee waiver, just as do other free and open events conducted by a charitable entity for the benefit of the public.
So, what about the member’s scenario? In the absence of a spot-on facility use policy, I suggest the following process:
If the library’s past practices make following those three steps too blurry, it is best to take a pass on this precise event, and take the time to develop an up-to-date and thorough Facility Use Policy that considers the types of uses the library will allow, and how and when it will charge for them. There are many good models out there to draw inspiration from, but before the board passes such a policy, it would be good to have it reviewed by a lawyer (who has ready the charter, bylaws, other policies, lease, deed, and any other relevant documents).
The member’s library is fortunate to have leadership that is thinking about both the first amendment and safeguarding the organization’s tax status. Good work. No matter what the final decision, awareness and commitment to these values serves your community.
 The member has stated their policy might not be suited to addressing this situation. We’ll tackle that in a bit.
 If this just caused a stab of panic because your library let’s an instructor host a “Yoga for Seniors” class for a minimum fee to the instructor, don’t worry, this event can happen…you just have to do it right.
We have a pretty exhaustive personnel policy on the use/limits of use of Library technology and property, both for compliant work-related purposes and for personal purposes.
What we do *not* have, and are wondering if we should, is a policy that speaks to the permitted (or restricted) uses of *personal* phones and similar devices while at work.
The question has come up because of supervisors needing to repeatedly remind staff to not use personal phones while on the public service desk, without having an explicit "policy" to fall back on.
On the surface, this is a simple issue: if people are using their cell phone for personal use on the job, a simple policy to stop the use should solve the problem, right?
Not these days.
As technology continues to transform the workplace (and the world), “cell phones away, please,” is not as easy as it once was. People use their cell phones to monitor health, track their steps, and get emergency calls from kids at school. Some may even use their cell phones to save their lives, serve as a witness to illegal activity, and exercise their right to free speech.
Many of these functions depend on the proximity of the person to the phone (or the watch that connects them to it), and because of this, cell phones are becoming extensions of the people who own them. So a policy to keep them stowed and away, or secured in a locker, can be met with resistance.
Here are a few examples of how this “resistance” can play out on the job:
As can be seen, many of the reasons to keep a cell phone on one’s person are compelling; other uses may not be. And many of reasons/uses overlap with other library policies.
The goal, of course, is not to bar an employee from important connections and a tool for their well-being, but to make sure the use of personal electronics does not distract from the library’s professional environment and employee productivity (even on a slow day). To achieve that, there are two broad solutions: 1) rely on a collection of policies to address the variety of purposes for personal cell phones while at work; or 2) create a catch-all policy.
In a work environment where consistency for staff members is critical for professionalism and productivity, I prefer a combination of both. What does that combination look like?
It starts with policies for:
…which should all allow for appropriate use of personal cell phones and electronic devices. This doesn’t mean the policy has to mention cell phones specifically—just have enough flexibility to address them.
At the same time, assuming the above-listed policies harmonize with it, creating a specific “Policy on Use of Personal Cell Phones and Electronics,” as proposed by the member, can help employees and management navigate these issues in a rapidly changing world.
Here is an example of such a policy:
[INSERT LIBRARY NAME] Policy on Personal Use of Cell Phones and Electronics
The mission of the [INSERT LIBRARY NAME] depends on employees maintaining a professional, productive environment.
To maintain that environment, use of personal cell phones and electronics should only divert employees from work duties in the case of an emergency.
To achieve this, cell phones and personal electronics should be stored in a carrier, purse, or pocket where the screen is not visible during work time, and watches synched with other electronics should not divert employees from work except during designated breaks in designated break areas.
Sudden personal emergency needs that require use of a cell phone or other personal electronics should follow the established procedures for use of break time and personal time.
Use of cell phones and personal electronics for ADA accommodations, FMLA arrangements, personal emergency, and personal safety needs are exempted from this policy, and should be arranged on a case by case basis with a supervisor per the relevant policy.
As with most HR policies, this one sounds simple, but can be complex to administer. The need to be flexible and allow some cell phone use (especially ADA use, the basis of which may be confidential), can cause seeming inconsistency in enforcement. To address this, employees must be sensitized to the fact that some people may depend on a personal devise for an authorized (and confidential) use, while at the same time be given the clear message that keeping in touch with social media and personal contacts during work time is not allowed.
As technology puts pressure on the norms of society, it is important to draw (and re-draw) reliable and clear boundaries…especially in the workplace. So should a workplace have a policy on personal cell phones? Done right, and with due consideration of the law, it can help.
Thanks for a timely question.
 There are electronic devices and apps that enable sharing of blood glucose levels at all times; it’s both cool, and terrifying, since if blood glucose is too low, a child can faint, and if too high, a child’s blood can become toxic.
 Do not use stock language to create an employment policy without having a lawyer review the final product. Union contracts, local laws, other policies, current handbook language, and work conditions can all impact what a catch-all employment policy can look like.
Various individuals and organizations have organized historic marker/signage installations in Buffalo over the years, including the Buffalo History Museum, the Pomeroy Foundation, neighborhood organizations, etc. Sometimes one entity, an individual or nonprofit, organizes the project while another entity, a foundation or private company, underwrites it. And then a third party is involved when it comes to installing the marker, by providing permission to use either private or public land.
My question is: whose property are these markers once they are installed?
This question reminds me of a story told by writer/actress Sarah Vowell in her book, Assassination Vacation.
When researching in Buffalo for the McKinley chapters, Vowell met a resident with scars caused by a childhood bike crash into a marker related to the McKinley assassination.
I remember reading this passage and thinking (like any lawyer would): Hmm, who would be liable for that? And of course, the answer to that liability lies partly in the question: Hmm, who owns this thing in the first place?
Unfortunately, finding the answer is not as easy as crashing your bike into a marker.
The solution starts out simply enough: property that is “fixed” to land becomes a “fixture,” and title to it runs with the land. This is why when you buy a new house, the shed, patio, and built-in grill pit (but not the moveable grill) come with it. And unless something provides otherwise, a historic marker on the property would belong to you, too.
The problem is, there are a lot of “somethings,” that could provide “otherwise.”
In New York, most historic markers, if controlled by law at all, are controlled by local law (the New York State Museum maintains an excellent summary as to why on their “Historical Markers” page). And under state law, cities, towns and villages may pass their own rules for designating, funding, and installing markers at historic sites.
Meanwhile, many private organizations exist to support the site-specific preservation of history. As the member points out, one of the major supporters of this effort is the William G. Pomeroy Foundation (“WGP”), which operated in collaboration with the New York Museum to promote projects to install signs at historic sites.
As part of that work, WGP does not condition funding on ownership of the marker (quite the contrary). That is a typical approach. However, other private funders could insist on some ownership and/or rules for maintenance—conditions that would be controlled by a contract, donor letter, or bequest.
So, while a good default answer to “Who owns a marker?” is “Generally the landowner,” the only safe answer, before some research, is “It depends.”
How can a museum, library, or other stakeholder in a local historic marker now what “it depends” on? There is no one-size-fits-all answer, but here is a process that should help:
Step 1: Confirm the ownership of the land the marker was installed on (who of course might not be the property’s occupant).
Step 2: Confirm if any easement or other real property condition controls the area of the land with the marker.
Step 3: Assess what federal state and local law(s), resolution, or permits (if any), controlled the installation.
Step 4: Assess what contractual obligations (grant document, donation solicitation documents, installation permission document, maintenance agreement, designer/creator document, etc), may relate to the marker.
Step 5 (optional, but highly recommended): Take an informal—but thorough—poll regarding who is emotionally connected to the marker, and develop a plan to consider their investment in what comes next.
I know that not all of these steps are easy to do, and that for a third party who was not involved in the installation, Step 4 might be impossible. But it remains true: to assess the status of an historical marker, you need to know its history.
As for Step 5…that is more of a “best practice” than a legal consideration. Over the years, I’ve observed that before undertaking any action that could impact a monument’s physical condition, it is best to know who will write an angry letter if you disturb the patina (or worse, remove it—even if only for a temporary cleaning). This includes not only owners, but those who feel a connection to and love for the memorial. When in doubt, it is good to exercise diplomacy! And who knows, they might chip in on the maintenance fund.
History, property law, and signage are all serious business.
Thanks for a great question.
For those considering embarking on a “historic marker” journey, here is form to help make the archivists, librarians, museum directors, history buffs, and lawyers of the future grateful to you. Every project should have a one of these cataloged, and nowadays, perhaps out there in cyberspace.
The [INSERT NAME] Historical Marker Legal Abstract and Dossier
Sponsored by [INSERT NAME OF ORGANIZATION]
This form is for use when planning and generating a final file for the development, installation, and maintenance of an historic marker. This project might not require all the items below to be completed. When an item does not apply, enter “N/A” for “not applicable.”
[Attach picture of Marker]
Address of property Marker is located on:
Owner of property at time of installation:
Survey of property with Marker location noted: [attach after noting location on copy]
Attached signed copy of agreement with property owner:
[if easement or other property right granted, attach]
Installation start date:
Installation completion date:
Insert Description of Maintenance Plan or attach copy of plan:
Is there any money held in trust or budgeted for future maintenance? If so, please describe:
Federal law passed under:
[Attach copy of law and, if relevant, resolution or permit]
State law passed under:
[Attach copy of law and, if relevant, resolution or permit]
Local law passed under:
[Attach copy of law and, if relevant, resolution or permit]
Insert name and address of Funder 1 and attach copy of funding letter, grant contract, or bequest document:
Insert name and address of Funder 2 and attach copy of funding letter, grant contract, or bequest document:
Insert name and address of Funder 3 and attach copy of funding letter, grant contract, or bequest document:
Attach copy of any fundraising solicitation:
The Marker’s designer was:
[Attached contract with designer]
If there is a graphic, who owned the copyright?
The Marker’s fabricator was:
[Attached contract with designer]
Did the Organization’s board pass a resolution regarding the Marker? If so, attach a copy.
Did the Organization enter into a collaboration agreement to organize and effect the Marker? This would include a co-sponsorship agreement, an agreement to coordinate different aspects of the project, or an effort to coordinate property ownership, permissions, or endorsements of the project.
If such an agreement was entered into, please attach.
Name of person filling out form:
Complete file with all attachments is located at____________________________.
 See the case Ritchmyer v. Morss, 5 Abb. Pr. (n.s.) 44, 1866 N.Y. Misc., among many, many others.
“The Common Council, by majority vote and with the consent of a private property owner who agrees to maintain the same, may cause to be erected or affixed to a structure a local historic marker that provides information regarding a site that it deems to be of local historical interest, after verifying the accuracy of the information contained on said marker with a local historian and by properly designating and appropriating funds for the creation of the same. A local historic marker shall in no way deem the site or structure it describes as a landmark, landmark site or historic district as those terms are defined in this chapter, nor shall it afford the local site or structure any additional legal protections or benefits.” [emphasis added to address maintenance aspects of question]
 Since this was an important aspect of the question, I gave the WGP a call. I was fortunate to reach Christy Fuller, who was very gracious about answering a convoluted phone call from a lawyer at 9:30 on a Monday. Christy confirmed that WGP does not condition their grants on ownership of the resulting marker.
 A maintenance plan should really be part of any historic marker installation. The application guidance from WGP, for instance, mentions this. But if every marker had a perfect plan, I bet I wouldn’t have gotten this question.
We recently purchased equipment that is capable of converting VHS tapes to DVDs that will be used by staff and patrons. We were initially thinking of it being used for home movies, and such, but then a staff member raised the question about the legality of converting commercial (movies, TV shows) VHS tapes to DVDs. Are there copyrighting issues involved? If it's not legal to convert them, what language can we use in our literature to make sure they are aware that it is not allowed, and any penalty that they may incur if they do? (We won't be watching them when they use the equipment.)
Thank you very much for your response!
VHS-to-digital conversion can open up options for accessibility under the ADA.
Many people have treasured family memories they need to convert a more accessible format.
A converter can also help with the creation of critical and new works.
This converter will be a really valuable service for your patrons. But your staff member is right to be cautious.
“Ask the Lawyer” has previously addressed the issue of libraries and patrons making copies under various circumstances (search the “Ask the Lawyer” archives). In those previous answers, among other things, we reviewed the special rights libraries have to make and convert copies under Section 108 of the Copyright Act, which applies specifically to libraries and archives.
Those previous answers cover some of the fundamental elements of this question. They also each include a careful emphasis that patron duplication of audio-visual works (like movies) are mostly excluded from the protections of Section 108, even when the copy is being converted from a medium that is obsolete.
What does all this mean? The staffer is absolutely right—commercial movies might be a resource patrons are eager to convert using the library’s equipment. . . And that could create an infringement a concern
Fortunately, Section 108 has a remedy for this problem. So long as the converting machine displays a notice that “The making of a copy may be subject to copyright law,” the library will meet the requirements of 108 to avoid the imposition of liability for unsupervised patron use of the equipment.
The “unsupervised” requirement is critical, here. If a patron’s use of the equipment is supervised by an employee, or the patron’s behavior makes it obvious that systematic infringement is going on, 108 might not apply.
So, a few things to help you be cautious:
1.When setting up the new equipment, select a place where patron privacy can be honored and employees can’t “supervise” the use of the equipment.
2) Posting “The making of a copy may be subject to copyright law” is a requirement to limit the library’s liability for a patron’s “unsupervised” use.
3) Keep in mind that any obvious copyright violations (like someone stacking an entire collection of BBC miniseries next to the converter and generating multiple DVDs of each one) should be promptly addressed through your patron code of conduct.
Which brings us to the final part of the member’s question: what language, both posted and in a code of conduct, can position a library to observe that last bullet? Patron codes of conduct generally have copyright infringement sections, but if your library does not, a good start is:
The [NAME] library is committed to maximum content access through the Americans with Disabilities Act, Section 108 of the Copyright Act, Section 110 of the Copyright Act, and Section 107 of the Copyright Act (Fair Use). However, use of library resources to generate or access copies beyond those rights cannot be supported by our library. Although patron use of such resources is unsupervised, reproduction equipment such as photocopiers, scanners, 3-D printers, and VHS converters are all marked “The making of a copy may be subject to copyright law.”
Any observable use of library equipment to access or make multiple copies in violation of copyright, trademark, or patent law is prohibited under this policy and will be addressed as a violation of this Patron Code of Conduct.
Thank you for this insightful question. I hope many weddings, graduation ceremonies, and birthday parties recorded in the 1990s find a new digital life in your library!
 What it actually says, relevant to this question, is: “The rights of reproduction and distribution under this section do not apply to a musical work, a pictorial, graphic or sculptural work, or a motion picture or other audiovisual work other than an audiovisual work dealing with news….” [except to make a copy when a format is obsolete, AND a copy cannot be obtained for a reasonable price] so long as “any such copy or phonorecord that is reproduced in digital format is not made available to the public in that format outside the premises of the library or archives in lawful possession of such copy.”
 The law states: “(f)Nothing in this section—(1) shall be construed to impose liability for copyright infringement upon a library or archives or its employees for the unsupervised use of reproducing equipment located on its premises: Provided, That such equipment displays a notice that the making of a copy may be subject to the copyright law[.]”
 This time it says: “(g)The rights of reproduction and distribution under this section extend to the isolated and unrelated reproduction or distribution of a single copy or phonorecord of the same material on separate occasions, but do not extend to cases where the library or archives, or its employee—
(1) is aware or has substantial reason to believe that it is engaging in the related or concerted reproduction or distribution of multiple copies or phonorecords 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….”
I realize this is a lot of footnotes. I’m trying to summarize the situation in the article, but want to provide the footnotes in case any enterprising librarians want to read the law themselves.
 A scenario for which I would be hard-pressed to find a Fair Use or ADA justification for.
Many libraries have printers that require staff assistance or are visible to staff from their usual work areas.
Sometimes patrons print content that can cause concern. This question specifically addresses printing materials that make false and hateful claims about race.
Are there any legal parameters on the printing of racist materials? Are staff violating any laws by assisting in printing? Can the Library/staff legally refuse to print materials that promote segregation and discrimination?
Library employees should not feel compelled to mediate the production of materials that target any protected category (including race), and in fact, feeling compelled to do so would risk potential illegal harassment of the employee.
There is of course a very fine first amendment and ethics line here. A library cannot have a policy restricting access to library resources solely on the basis of viewpoint. However, if any employee considers the materials to be genuinely discriminatory (to themselves or others), they can report the behavior, and the library must take corrective action, including asking the person to desist the behavior. This is because being compelled to view, help create, and handle such materials can create a "hostile environment" for the employee or patrons—or both.
To help create a balance between a patron’s right to confidential library services, access to resources, and the rights of employees and patrons to be free from a discriminatory environment, it is worth considering adopting a corollary to a library’s anti-discrimination policy, such as:
To ensure adherence to state and federal anti-discrimination laws, library resources (including staff assistance, production resources, and public areas) may not be used in a way that discriminates on the basis of age, race, disability, predisposing genetic condition, gender, sexual orientation, religion, national origin, race, veteran status, or domestic violence victim status.
Examples of violations of this policy include, but are not limited to:
This policy works with the "Library Bill of Rights" and shall never be interpreted to deny or impede access to library collection materials or materials via inter-library loan.
Violation of this policy shall be considered harassment and concerns about the application of this policy shall be addressed through the library's discrimination policy and the library's [Code of conduct.]
Attention to matters like the question posed by this member is critical in 2019 (and beyond) because this year the NY Legislature greatly expanded the scope and control of the NY Human Rights Law (“HRL”).
The HRL is the state of New York’s mirror image—and significant extension—of several federal civil rights laws. HRL has always barred discrimination on a number of enumerated categories, but this year, the Legislature broadened it again. So developing materials and training staff to balance library services with civil rights has only grown more mission-critical.
Thank you for this important question.
 Age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, and at times criminal conviction status.
Our library will be hosting a live music event in the local auditorium this summer. The musicians are all local (one is a library employee). The performers are all volunteering their time and there will be no admission fee to attend the event. Do we need special licensing if the musicians perform covers of published songs? Is licensing needed for a performance if it is all original music? If covers are done would making an announcement that no recordings are to be made safeguard against copyright infringement?
When a library schedules a live musical performance what should they be concerned about in terms of public performance? Does the library need to have any coverage in place if the musical group is playing covers of song by other artists? Is it the musical groups responsibility to obtain that permission? In this instance a local television news crew would like to cover parts of an event with musical performances. The concern is that some of the artists will be playing music that they may or may not have the rights to. What should the library consider in this situation? Even if the news crew was not covering the event, is there some type of infringement the library should be concerned about?
It's a musical double act at “Ask the Lawyer” today!
Libraries are hitting their stride as community centers and curators of cultural experience, so it is no surprise that live musical performances are being offered as part of their programming and outreach.
These two members’ questions arrived within one week of each other.
The first question is like a good pop song: a straightforward premise, with an array of practical (but catchy) sub-questions.
The second is more like the best jazz performance: concerned with the “notes that aren’t there,” and basically asking: “what could go wrong?”
To address both submissions, Ask the Lawyer presents: “Ask the Lawyer Library Live Musical Performance Matrix,” and some additional guidance, below.
All songs composed by performers
Some songs composed by others (some “covers”)
Admission charged for profit
Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.
Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.
Chartered libraries in NY, and their supporters, should not be charging for access to events for a profit.
Performers are paid
(whether or not admission is free)
The contract between the performer and the library, Friends or other benefactor group should specify that all songs are owned by the performers, and ideally gives maximum rights to record the performance and use the footage to raise funds for the library.
The contract between the performer and the library, Friends or other benefactor group should specify that if the performance of songs owned by a third party is recorded, proper licensing was obtained by the performer or venue, and the performer indemnifies the library for any claim of infringement.
The contract between the performer and the library, Friends or other benefactor group should specify that if the performance of songs owned by a third party is recorded, proper licensing was obtained by the performer or venue, and the performer indemnifies the library for any claim of infringement.
The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license held by the provider.
No compensation to performers
Admission is free
This group wrote their owns songs, and they are willing to perform for free? They must love the library! Just make sure your library also has a contract confirming 100% ownership of songs and addressing other priorities (see “contract” comments below chart).
Okay if performance of covers is not “transmitted”.
Just make sure your library also has a contract addressing other priorities (see “contract” comments below chart).
Okay if performance of covers not “transmitted” to the public.
Just make sure your library also has a contract addressing other priorities (see comments below chart).
The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license help by the provider.
No compensation to performers;
admission proceeds are used to benefit library
They wrote their owns songs and all the proceeds are going to the library?
Okay, so long as the performance of the covers is not transmitted to the public, AND no objection is received from copyright owner (unless they got and can show proof of a license).
Okay, so long as entire performance is not transmitted to the public, AND no objection is received from copyright owner (unless they got and can show proof of a license).
The contract between the karaoke machine provider and the library, Friends or other benefactor group should specify any restrictions based on the license help by the provider.
Wait! Did we mention it’s an entire musical!?!
Your library knows a group that wrote their own musical? That’s awesome. Proceed…just make sure the contract has their guarantee that the work is original, spells out how the library can use the footage for fund-raising, and addresses the contract priorities listed below.
No performance without a license to the entire musical.
No performance without a license to the entire musical.
A karaoke musical? So cool. But definitely the contract with the karaoke machine provider needs to show an adequate license, even if it is not transmitted or recorded.
What if the news shows up?
Excellent. More exposure for a band with talent and originality, and for your library.
Excellent…more exposure for the group and the library. Even if the crew snags some brief footage of a cover song, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4). But make sure your 110(4) criteria are well-documented.
Excellent…more exposure for the group, and the library. Even if the crew snags some brief footage of a cover song, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4). But make sure your 110(4) criteria are well-documented.
My worst nightmare would be the news covering me doing karaoke. But again, if the right licensing is in order, a reporter’s recording for purposes of a genuine news story is not a “transmission” of the type forbidden by 110(4).
There are a few things I am sure you’ll notice in this chart:
First, I keep mentioning having a “contract.” No performance should be given in a library (or at a venue with sponsorship by the library) without a contract that confirms the date, performance fee (even if free), intellectual property considerations, public relations/promotion/image release, contingencies for cancellation, and clauses that address liability for any injuries or legal claims based on the performance.
This need for a performance contract applies to any library arranging for a speaker, musical act, magician, artists or other third party (non-employee) to bring programming to your library. For acts that bring risk (of alleged infringement, personal injury, etc.), the contract should require the contracting party to provide a certificate of insurance, and to indemnify the library for any damage caused by the performer.
The contract does not have to be extensive, but it should cover the fundamentals listed above. It can require that the performer obtain all necessary permissions, or can provide that performance licensing be covered by the venue (with a license from ASCAP or BMI). A good general practice lawyer who handles performance and liability issues should be able to develop a template for your library (although even a good template will need to be adjusted from time-to-time).
Second, you’ll see an array of factors in the chart above, like “performer not paid,” or “it’s a musical!?!” These factors are drawn from 17. U.S.C. 110 (4) (a part of the copyright law), which allows certain charitable uses of non-dramatic literary or musical works without a license.
Here is the complete text of 110(4):
[The following is not an infringement of copyright]
(4) performance of a nondramatic literary or musical work otherwise than in a transmission to the public, without any purpose of direct or indirect commercial advantage and without payment of any fee or other compensation for the performance to any of its performers, promoters, or organizers, if—
(A) there is no direct or indirect admission charge; or
(B)the proceeds, after deducting the reasonable costs of producing the performance, are used exclusively for educational, religious, or charitable purposes and not for private financial gain, except where the copyright owner has served notice of objection to the performance under the following conditions:
(i) the notice shall be in writing and signed by the copyright owner or such owner’s duly authorized agent; and
(ii)the notice shall be served on the person responsible for the performance at least seven days before the date of the performance, and shall state the reasons for the objection; and
(iii)the notice shall comply, in form, content, and manner of service, with requirements that the Register of Copyrights shall prescribe by regulation;
This section of the Copyright Act was crafted with just the members’ type of event in mind. As usual with Copyright law (which giveth and taketh away, when it comes to fair use and other infringement exceptions) careful reading and careful attention to details is important before relying on an exception. But if you document meeting all the factors, 110(4) is a great boon to libraries (and other charitable organizations and efforts).
So as you see, with some careful attention to details, a show can go on. Or as these slightly modified lyrics (fair use!) from the great Shannon (circa 1983!) summarize:
Let the music play.
But what’s the venue say?
If there’s a license you
Can play other people’s tunes.
Let the covers play
If your library doesn’t pay,
and don’t transmit your groove
Then the tunes are free to use.
 Anyone who has seen “Spinal Tap” knows that there are an amazing variety of things that can go wrong.
 To “transmit” a performance is to “communicate it by any device or process whereby images or sounds are received beyond the place from which they are sent”—this includes a livestream, video, or broadcast.
 This is partly why I gave you a chart. That, and I love charts.
 As of this writing, I am 46. When this song came out, I was 10, and the song, along with many people’s hair, was HUGE.
 Parody lyrics are not legal advice. Use the chart, consult the law, and don’t have a concert without a contract!
My library has long been in the practice of charging what we often refer to as a "research fee" or "consulting fee." I am familiar with some libraries who have a similar practice, but wonder if it's legal for us to charge an hourly rate for work done by volunteers? The workflow has always been as follows: a reference request is received by the Librarian, a determination of whether the question is appropriate for our collection is made, then the work is delegated to a volunteer. In general, we've never taken on a job of over 2 hours, and most questions relate to our genealogy collections / searching vital records.
It is well established that a not-for-profit organization can benefit from volunteer labor. This is true even when the labor brings the organization tangible benefits, like the money from a bake sale, or as in this case, a research fee.
But when using volunteer services and charging a fee, a library (or any chartered not-for-profit) in New York must engage in a systematic analysis to ensure the arrangement is in step with numerous laws and regulations. How can a library, museum, or archives do this?
Follow the three-step process below.
First, identify the services the institution would like to provide through volunteer labor.
This is rather like writing a job description or hire letter. An example based on the member’s scenario could look like this:
Under the general oversight of [paid position] in [department], the Research Volunteer performs specific research tasks related to personal requests by [institution] members and other users. These tasks are not to routine operations of [department], but benefit the public and [institution] by serving members and others in a way directly related to [institution]’s mission to [insert mission], as well as raising revenue in support of that mission.
Your hours and participation as a Research Volunteer are voluntary, but we do ask that you work with [person] to coordinate your time; this will enable us to support your work, and keep things organized. This work is a valuable service [institution] can only provide through the services of volunteers, and we thank you for your dedication and hard work!
The essential elements of this first step are:
You’ll see why these are important in the Steps Two and Three!
Next, check your organization’s founding laws, charter, founding documents, bylaws and plan of service (I call these “core rules”) for any terms that apply to the service you defined in Step One.
Look at the laws and documents. Is there something preventing the institution from charging a fee for this specific service? Is there any cap on that fee?
This exercise will vary greatly from institution to institution, since many variables can impact what’s in the “core rules.” Here are just a few examples:
A public library could never charge a member to borrow a book or to use the internet, because Education Law Section 262 requires that public libraries be free (to cardholders).
For a private library, its charter could contain an express rule that certain services must remain free—a restriction that might not be found in the law, but could be just as enforceable. A similar condition could be in its bylaws, or a donation document.
And if an institution is a 501(c)(3), care must be taken to make sure the revenue generated by the service is “substantially related” to the institution’s not-for-profit mission, or the institution could risk having to pay “unrelated business income tax.” The service should also be reviewed to ensure it is not an “excess benefit transaction” or a non-disregarded membership benefit. A mis-step on any one of these could have serious tax consequences.
When doing the “Step Two” analysis, it is ideal to confirm your conclusions with a lawyer.
Once an institution uses Step Two to confirm it can charge for a service, it is time to return to your description from Step One and make it official, by putting the scope of work and details in a “Volunteer Letter.”
Why so formal? Because in recent years, the State of New York has cracked down on enforcement of quasi-volunteer, or just plain muddy, instances of volunteer labor at not-for-profit institutions. This has even included examining perks and partial payments to volunteers!
Why is that? While not-for-profit volunteering is unequivocally allowed, like anything, the system can be abused. To avoid that, and to create clarity in these critical relationships, the New York Department of Labor has issued some pretty strict guidelines, such as:
Unpaid volunteers at not-for-profits may not:
Sound familiar? This is where the work you did in Step One pays off! By identifying the work as part of a “Volunteer Program,” clarifying that the service is offered through the hard work of volunteers (and never paid staff), and that there is no compensation to the volunteer, your documentation will be ready to show compliance in the event the Department of Labor audits your institution (which, from time to time, they do).
Volunteers can be critical contributors to an organization. If allowed by your organization’s core rules, a not-for-profit can absolutely benefit from the fruits of their labor. By following the steps outlined above, and setting the relationship up carefully, a not-for-profit (and its volunteers) can reap great rewards.
The essential element of this is clear documentation. A letter to every volunteer, stating their role, the rules of the position, that it is not replacing or supplementing paid staff, and thanking them for their service, will position an organization to easily demonstrate compliance.
A quick annual check with the institution’s insurance carrier, to make sure volunteers and their activities are covered by the institution’s insurance, is wise, too.
Thanks for a great question!
 A trust, endowment, deed, or other founding document that may also impose conditions on the entity.
 Per IRS Publication 526, the following 501(c)(3) membership benefits can be “disregarded” (not considered a taxable benefit) if a member gets them in return for an annual payment of $75 or less. These “benefits” can include any rights or privileges that a person can use frequently while you are a member, such as: a. Free or discounted admission to the organization's facilities or events, b. Free or discounted parking, c. Preferred access to goods or services, and d. Discounts on the purchase of goods and services. [emphasis added]
 Since volunteers can be critical contributors to the work environment, they should attend the annual sexual harassment training put on by your library, and be trained along with the employees.
We are a school district public library, and a governmental entity, considering crafting a policy relating to debts discharged in bankruptcy, if the library is named as a creditor.
Are replacement costs for library materials exempt from or subject to discharge of debt? Overdue fines?
Fees levied in an attempt to recover materials (i.e. collection agency fees)? (We do not submit overdue fines to collection agencies, only the replacement costs of materials, in an attempt to recover them)
Are we allowed to impose restrictions on borrowers whose debt has been discharged, if they have not returned materials owned by the library? For example, can we deny loans to a borrower until they return library materials, or pay for them, if the debt has been discharged; or can we limit the number of items loaned for a period of time?
The following is an example of a such a policy. Is it problematic?
The Library will comply with Discharge of Debtor decrees by bankruptcy courts. Once the library is notified that a bankruptcy has been filed, collection activity is suspended on the customer’s account and on the accounts of any minor children (to the extent that the charges existed prior to the date of the bankruptcy filing) until the library is notified of the outcome.
Cardholders who have:
Only charges owed to The Library as of the date of the decree will be waived. Fines and fees incurred after the period of time covered by the bankruptcy proceedings are not covered by the discharge document and will remain on the borrower’s account and those of any minor children.
Thanks for any guidance!
Before we get to the nitty-gritty on this question (and we will), let’s reflect on why libraries charge fines and replacement costs in the first place:
And always, lurking in the background, is the notion that fines and replacement costs are an alternative to the most under-utilized section of the NYS Education law, the criminal provision in Section 265:
Whoever wilfully detains any book…belonging to any public or incorporated library…shall be punished by a fine of not less than one nor more than twenty-five dollars, or by imprisonment in jail not exceeding six months…..
So far, I have not had a client use their “one phone call” to let me know they have been arrested on an “265,” but the possibility is never far from my mind.
Of course, no one picks a library career to pursue their dream of arresting people who love (and lose) books. And, although less draconian, I bet no one picks a library career for the joy of assessing late fees. That said, library materials costs money, and people can be irresponsible about returning items to the library. So what’s an institution to do?
Some libraries are experimenting with no-fine models, since fines can have a disproportionate impact on those in poverty. Others have great success with routine “amnesty” days and other creative ways to take the sting out of returning books late. And still others want to make sure that the traditional model is as streamlined and legally compliant as possible. That is what the member’s question is about.
A “bankruptcy discharge policy” is a logical component of a library’s approach to fines, replacement costs, and efforts to collect them. It addresses the potential “dischargeability” (wiping out) of library fines when a person seeks the protection and “fresh start” created by bankruptcy. It can also help libraries (and their collection agencies) follow the law, which gives people seeking bankruptcy very specific protections.
Before we address the member’s specific questions about adopting such a policy, it is important to take a moment to reflect on (legal) language. This is because there is a basis to argue that overdue fines and replacement costs, while valid conditions of having a library card, might not qualify as typical commercial “debts;” this could mean that in many cases, libraries owed fines and replacement moneys might not be precisely “creditors.” This is pointed out in the 1997 case Riebe v. Jeurgensmeyer, where the judge writes:
The origin of this federal case is a minor's failure to return a library book. In 1995, Elizabeth Riebe, a minor, borrowed a library book from the St. Charles Public Library ("the Library"). The due date came and went without Ms. Riebe returning it. The Library waited. After Ms. Riebe failed to return the book for six months, the Library retained Defendants [a collection firm] to write to her parents ("Plaintiffs") requesting payment of $ 29.95.
Addressed to Plaintiffs, the letter, as Plaintiffs see it, implied that they, or their daughter, could be arrested and imprisoned for intentional theft of public library property. Attached to the letter was a copy of the provisions of the Illinois Criminal Code. Rather than paying the $ 29.95 or at least returning the book, and thereby putting the matter to rest, Plaintiffs filed a complaint in federal court, alleging that Defendants' letter violated the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692, et seq.(1996).
In ruling that the FDCPA doesn’t apply to attempts collect library fines (and thus that the library could not be liable for the zeal of their collection agency under the FDCPA) federal Judge Charles R. Norgle (who clearly esteems libraries) wrote:
Here, there was no initial "business dealing" creating an obligation to pay, only an obligation to return a library book. In theory, this may have created some type of contract, but not in the context of a "business dealing" as contemplated by the FDCPA, e.g, the purchase of consumer goods or services. … Rather, the borrowing of a library book is a public privilege that largely depends on trust and the integrity of the borrower. [emphasis added]
Now, the FDCPA is not the Bankruptcy Code, and it is possible that a person seeking relief from debt under the Code and might be able to reduce or completely discharge their fines and replacement charges from a library. But for over twenty years, Riebe has been cited as good law, so it is possible that this view of library fines and replacement costs as something more fundamental that a business debt could carry over.
I emphasize this because it means some types of library fines and costs might be dischargeable, but others, since they are not consumer “debt” in the traditional sense, might not.
So, with all that, let’s get to the nitty-gritty:
Are replacement costs for library materials exempt from or subject to discharge of debt? Overdue fines?
Because of the factors cited above, there can be no one-size-fits all answer to this! It will depend on a few factors. Under certain circumstances (replacement costs, fines connected to vandalism or wanton theft) the court might rule that what’s owed to the library is not a “dischargeable” debt. But that might not be the case for the average family declaring bankruptcy because they got swept at the knees due to illness or job loss, and who might have additional hardships to show to the court. As with many things in bankruptcy, it will depend on the circumstances.
Fees levied in an attempt to recover materials (i.e. collection agency fees)?
I would argue that imposing additional administrative costs for retaining a collection agent risks transforming the library-patron relationship described so well by Judge Norgle in Riebe. In doing this, the likelihood of the costs being dischargeable increases. But again, it will depend on the underlying nature of the fine or cost. Someone who checked out 10 DVD’s on their first week as a cardholder and never returned them might have a tough time proving that the costs aren’t the result of theft (and thus non-dischargeable).
Are we allowed to impose restrictions on borrowers whose debt has been discharged, if they have not returned materials owned by the library? For example, can we deny loans to a borrower until they return library materials, or pay for them, if the debt has been discharged; or can we limit the number of items loaned for a period of time?
Regardless of where your board may fall on its philosophical approach to fines and collections, any time a cardholder declares bankruptcy, all efforts to collect fines or replacement costs should cease. Critically, this means if borrowing privileges are only suspended due to unpaid fines, borrowing privileges should immediately be reinstated. On the flip side, suspension due to unreturned materials (for which no replacement cost is being charged) can continue.
The most important thing, as the member suggests, is to respect the process when your library is notified of it. Any library, or agent of a library, who gets a notice that a cardholder is filing bankruptcy should cease all financially-related sanctions. If there are extenuating circumstances (let’s say the amount owed is related to an act of vandalism, or failure to return 50 full-color art books) refer the matter to library’s attorney, or alert the bankruptcy trustee, who might contest discharge under the precise factors of the bankruptcy code.
With all that in mind, I suggest some alternative language for a policy, which would addresses both the human aspect of bankruptcy, and some of these subtleties:
Bankruptcy Discharge Policy
The Library understands that sometimes people must seek relief from debt in bankruptcy and are entitled to a “fresh start” after such relief is obtained.
Cardholders seeking a discharge in bankruptcy of moneys owed to the library should notify the library of having filed for bankruptcy.
Once the library is properly notified that a bankruptcy has been filed, the library and/or its agent will immediately cease contacting the cardholder about the financial amount(s) owed.
The library shall then evaluate its response to the notice. In making such an evaluation, the nature of the conduct leading to any fines, costs, and suspended privileges will be considered. In particular, but not exclusively, the discharge of any costs related to wanton destruction or significant failure to return borrowed items may be contested.
After notice of filing, but prior to discharge, if borrowing privileges are suspended solely on the basis of unpaid fines and replacement costs, borrowing privileges will be immediately reinstated; borrowing privileges suspended on the basis of unreturned items, for which no replacement cost is sought, will remain suspended.
To ensure all charges are listed on the bankruptcy schedule, the cardholder or their attorney may contact the library to request a statement of account at any time; such contact must be in writing so there is no risk of the library appearing to have violated the bar on collection activity. An attorney or trustee requesting this information on behalf of the cardholder must include permission from the cardholder as required by CPLR 4509.
The library supports that people seeking relief in bankruptcy are entitled to a “fresh start” after the discharge of debt(s). Upon presentation of a “Discharge of Debtor” listing the library, all moneys owing shall be removed from the cardholder’s record, up to the date of discharge, for the cardholder and any minor children in the family.
Further, if replacement costs are discharged, the library will not regard the failure to return the corresponding item as a basis to bar reinstatement of borrowing privileges.
Late returns or losses after the date of discharge will be subject to routine policies, including fines and suspension of borrowing privileges.
This approach both maximizes the potential for a bankruptcy discharge to be the compassionate re-set of the cardholder’s account it is intended to be…while taking into consideration that not all charges might be worthy of discharge (which is up to the bankruptcy court to decide).
Thank you for this careful question.
 United States District Court for the Northern District of Illinois, Eastern Division, October 31, 1997.
 The member’s question states that the library is a “government entity,” an assertion that is potentially relevant under the Bankruptcy code. Without making this response pages longer, I will simply state that I don’t believe a public library has quite the same status governmental entities do under the Bankruptcy Code; however, as shown in Riebe, libraries can occupy a unique position that should inform their approach to this issue.
Our library has a number of older Environmental Impact Studies (both draft and finals) which are taking up space, and we were wondering if we could discard them. Can a library make its own retention schedule for these or do libraries need to keep these for a certain amount of time so the public can access them?
If we can make our own retention schedule, do you have a recommendation as to how long they should be kept?
Draft and final Environmental Impact Studies (or “EIS”) must be accessible during the “public comment” period of a construction or remediation project. After that, a library can discard them.
For readers who aren’t familiar with these documents: EIS are mandated reports that show the complete scope of possible “significant negative environmental impacts” certain types of projects can have. They are produced by a project’s “Lead Agency” (generally a major figure in the project), who must ensure that copies of both draft and final EIS are made available to the public for a period of “public comment.”
To comply with these disclosure requirements, the Lead Agency must both post the EIS on the internet, and provide a hard copy upon request. As an alternative to providing on-demand hard copies, environmental regulations also allow the Lead Agency to place copies of an EIS “in a public library…,” where they must be available for viewing and copying during the public comment period (which is a minimum of 30 days, but can go much, much longer).
This “public comment” period is critical. When done right, it enables clarity and transparency even when a project’s approvals span multiple agencies (like zoning boards, preservation boards, and a legislative body). This allows the average citizen to provide timely comments about on things like environmental hazards, land use, historic preservation, and design. So the role of the library in ensuring public access is valuable.
As the member’s question appreciates, EIS can have value even after the “public comment” period is closed. Long after a project is complete, an EIS can reveal site conditions relevant to health and safety. For professionals like urban planners, environmentalists, architects, and attorneys, the information in an EIS can be very useful. And from the local history perspective, an EIS can show, decades later, what a village, town, or city perceived as a danger, asset, or cultural resource. Coupled with building permits and variances, that information can show who was allowed to build what in a particular village, town, or city. For this reason, I predict EIS will be important resources to the historians of the future.
To assess if a printed EIS should be retained by the library, libraries can use their normal accession evaluation process. One thing to consider in such an evaluation: the NY Department of Environmental Conservation retains copies of all EIS (in a manner that accords with the DEC’s own record-keeping policies). Personally, I do think there is value in retaining the local hard copy, but as the member states, these things can take up a lot of room!
One thing that can make the entire process around EIS easier for a library is having an “EIS Acceptance Form” that is signed by the “Lead Agency” when they drop off the copies for required disclosure. Remember, use of the library is a courtesy that allows the Lead Agency to escape making numerous on-demand copies, so they should be very gracious about signing such an agreement!
I have supplied the essential elements of such a form below, and added a few non-required but library mission-centric terms to them.
The most helpful feature of this template form is the requirement that the “Lead Agency” notify the library that the public comment period is over; this way, a library can receive express confirmation of when the time to officially make the EIS available has ended, and the decision to dispose of or accession it can be made.
Thank you for this thoughtful question.
TEMPLATE EIS AVAILABILITY REQUEST FORM
The State Environmental Quality Review Act (“SEQRA”) requires that draft and final Environment Impact Studies (EISs) be posted on publicly accessible web sites by the “Lead Agency” for the project, and to provide hard copies on demand.
Regulations allow a lead agency to place copies of the EIS in a public library instead of making a large number of individual copies. By filling out this form, you, as “Lead Agency,” are requesting that the [NAME] Library place ____ printed copies of an EIS for availability to the general public, and expressly authorize the creation of as many copies as needed by the public, to fulfill your disclosure obligations under SEQRA.
Further Terms Agreed to By Lead Agency
As a condition of assisting with access during the public comment period, the ___ [insert number] physical copies provided by Lead Agency shall become the physical property of the Library, who shall have an irrevocable license to duplicate the EIS, in any medium now in existence or further developed. After being notified by the Lead Agency of the close of the comment period, the library may retain the physical copies, or dispose of them, at its sole discretion.
Lead Agency also hereby commits to remunerate the library for any request for a copy to be modified per ADA accessibility needs, including but not limited to conversion to braille, large print, or for use with an electronic reader. Such copies shall remain the property of the Library.
Lead Agency will notify the library via an e-mail to [ADDRESS] when the EIS is no longer required to be available for public comment and duplication.
The Lead Agency employee or agent signing this EIS AVAILABILITY REQUEST FORM is an authorized signatory of the Lead Agency.
CONTACT AT LEAD AGENCY: ___________________________________
TITLE OF CONTACT: ___________________________________
PHONE NUMBER: ___________________________________
PROJECT NAME: ___________________________________
PROJECT ADDRESS(ES): ___________________________________
PUBLIC COMMENT PERIOD START DATE: ___________________________________
PUBLIC COMMENT PERIOD END DATE (if able to be determined): ___________________________________
SIGNED ON THIS __________ DAY OF ____________, 20_____.
[NOTE: Any template form should be reviewed by a library’s attorney for conformity with charter, bylaws, and current policy]
 From the “SEQRA Handbook” page 162: “The minimum public review period is thirty days, calculated from filing of the Notice of Completion. If the draft EIS is lengthy, there is delay in distribution of copies, or there is substantial public interest, the lead agency should extend the review period. In practice, the time allowed for draft EIS review is often considerably longer than the minimum. The lead agency may wish to negotiate a mutually acceptable extension with the project sponsor. If a hearing is held to receive comments on the draft EIS, the SEQR regulations require that the review period must remain open for 10 days following the close of the hearing, for the receipt of additional written public comments.” It is not the job of the library to do these calculations!
 Just to reiterate: this template is just a starting place. Any template form should be reviewed by a library’s attorney for conformity with charter, bylaws, and current policy.
What laws impact a library’s next-door-neighbor relationships? Are there best practices for neighbor disputes?
There are few relationships that can be as rewarding—and as fraught with tension—as the relationship between neighbors. I have seen neighbors unite to fight for preservation of their streets historic assets, and I have seen neighbors bring law suits over shrubbery. A library is wise to cultivate a good relationship with its neighbors, just like a person would at their own home.
What laws impact a library’s relationship with its neighbors? Most libraries exist on land, or within a building, so the controlling law is called “real property” law. “Real property,” which could be land, or a building, is distinct from “personal property” (like a book) or “intellectual property” (like a logo). Although many laws impact real property, in New York, the major one would be the “Real Property Actions & Proceedings Law” or “RPAPL.”
Also impacting real property and the relationships between neighbors are: building codes, planning regulations, zoning, permitting, contract, business, and construction-related law. And of course, the education law, not-for-profit corporation law, and municipal law can all apply to how a library handles real property issues, while grant terms and donor restrictions can be relevant, too.
And if the old oak in front of your library suddenly crashes into the roof of your neighbor, insurance law may come into play, as well.
Any one of these laws—and countless others—might be considered by a lawyer advising a library if there is a concern or dispute with a nearby neighbor. But are there any general “best practices” to abide by? Based on my experience with construction, real property, landlord-tenant, and contracts—here are some simple practices for preventing, and if necessary, addressing potential neighbor disputes.
Practice #1: Know where you stand
Every library should know precisely what property they occupy, and how they occupy it. To do this, I recommend what I call a “binder solution.”
For libraries that own their own property, the binder contains:
Basically, this binder should be a one-stop shop for information relating to the library’s property and the legal relationships it has with the world.
For libraries that do not own their premises, the binder contains:
Why does all this matter? Many real property battles are lost when owners over-state or mis-portray their rights. Never initiate a property matter with a neighbor—even a seemingly simple one like a noise complaint—unless you know these documents will back you up (plus, having this material organized is just good stewardship).
Practice #2: Know your neighbor
This advice works on two levels.
The first level is obvious: know your neighbors. Invite them over. Know the names of their kids and what sports team they root for. That type of outreach is insurance against any number of serious disputes.
The second level is a bit more covert: what’s in their “binder”? Are they the owner? Are they renting? Might they be a squatter? Basically, to the extent possible, develop a “binder solution” for them, too. In getting to know them a bit better, you might develop some insights on the roots of your dispute.
Practice #3: Isolate this issue
In my experience, neighbor disputes can be some of the nastiest legal battles. I am no sociologist, but I imagine this is because when you fight with a neighbor, no one gets a break. You are alongside and--in some places practically on top of—each other, 24/7. And sometimes people are just mean…or have too many of their own problems to be able to honor another’s.
That said, if you have a potential neighbor dispute, isolate what you think the true cause might be. Is the neighbor ranting about your ice cream social signage actually angry about fines from 1989? Is the neighbor complaining about “those people parking” actually kind of racist? Is the dispute really about noise, or is the neighbor a narcotics peddler?
The point of this is: make sure you really know what’s up. That way, you can keep things professional and separate if matters get contentious, and know what type of team to assemble to handle the dispute.
Which brings us to…
Practice #4: Use a professional!
Library staff are trained to help people find information, to select and categorize library acquisitions, and to operate their library according to applicable ethics and regulations. They are NOT trained lawyers, surveyors, law enforcement, or alternative dispute mediators.
If your library is in the midst of a neighbor dispute, consider retaining a property manager, lawyer, real estate agent, or other paid expert to be the primary interface with the neighbor. Their experience will bring a better result, and the distance they lend the situation may de-personalize it and save your library staff time and stress.
Practice #5: Pick your battles!
Neighbor disputes should only be entered into if they can be won decisively, quickly, and in a way that aligns with your mission. For a community library, that means identifying an overall strategy before you start, and using only tactics that you can publicly defend.
It would be impossible to write an essay on this (although a book might be fun), but here is a chart of some typical scenarios, and how to pick your battles:
Fight the Battle?
Owns its property, and just put a new skylight in.
Is a long-term renter.
With the new skylight in, the ska music they have been blasting since 1987 can now be heard in the periodical section.
Could be in violation of a noise ordinance.
Could be a violation of their lease.
Best to first gently and informally raise the issue with their landlord; if you’re in a small town, make sure you know all the players. This could be a diplomatic (and loud) nightmare.
Rents its property, and has had the same lease since 1996.
Owns their property across the street.
After getting all the proper permits, your neighbor excavated for a new building and hit a natural spring, causing flooding in your basement and ruining a significant array books.
So much! This would call for an immediate and very well-organized response. But even before you call your lawyer, call your landlord and your insurance carrier.
You’d have to pick which battle. Moving to a new location might be more mission-aligned than staying in a potentially damaged and moldy structure.
Is a public library that has occupied the second floor of the Town Hall 1934, but there’s no lease and no one has really questioned the arrangement.
Is the Town Historical Society, who have been in the basement of the Town Hall since 1974.
The Historical Society has, without asking, recently taken over your community reading room with a display case of genealogical charts. The room was recently redecorated with a grant that requires the room be accessible to all.
The only entity with clear rights here might be
Ugh. This is the type of battle that can get ugly, quickly. Hopefully after you assess your position with a professinoal, some diplomacy and living up to any contractual obligations can save the day.
Is buying a historic property to rehab and move into.
Owns the house next door.
In surveying the property, you find out that 5 years ago, your neighbor built their fence over two feet onto your new land.
This could involve looking at the survey, searching for easements (permission to use your property), and making an inquiry of the person you bought the property from.
You have to address it, since leaving the fence there without protest could result in the property eventually becoming the neighbor’s! But be strategic and consult an attorney before you raise it externally (including with the neighbor).
My overall guidance? Send neighbors a basket of fresh fruit ever year, and when you hand-deliver it, spend 10 minutes catching up and asking about their families. It’s amazing how much ill will can dissolve over apples and pears.
Good luck out there!
 Inspired by this sentence, I checked: yes, as I am sure my readers are aware, there are libraries boats and library planes, too.
 I love historic properties and historic preservation. That said, if you plan to do this, make sure your team has at least one person who has done a major preservation project before. Those buildings are full of expensive surprises.
Pornography and public computers in libraries have gone hand-in-hand for some time and I'm doing some research on how library policies should handle addressing this in a realistic and proactive way. The question that I am researching is whether or not it is legal to explicitly list pornography as something that cannot be accessed on library computers. I understand ALA and the Intellectual Freedom Committees stance on this issue as well as the first amendment ramifications and I am certainly not advocating for censorship, however, I've seen several policies that have tried to circumvent the issue by having vague, unhelpful policies and others that have flat out said that it is not allowed. Any clarifying help from a legal standpoint would be appreciated.
My understanding is that it would not be constitutional to have a policy restricting pornography, however, there could be something in the policy that restricts the displaying of pornography or other offensive content.
Because libraries are guardians of the first amendment, and because there is no consistent definition of “pornography,” the answer is: NO. I cannot offer legal guidance that simply bans porn…any more than I could suggest that a public library start charging admission. Such guidance would cut into the fundamental heart of a library’s mission.
But there is a way to achieve your underlying objective: Focus on civil rights.
How does a “focus on civil rights” keep porn off library computers, you ask?
Let’s start with the fundamentals: why would a library would need to consider limiting internet porn in the first place? The answer is pretty simple. Aside from the malware—and the abysmal amount of copyright theft perpetrated by many porn sites-- no one wants to work or congregate in a place where other people are watching porn.
At best, it’s icky. At worst, it creates an atmosphere of gender-based discrimination (of any gender…of any sexual orientation…and of those who do not gender-identify, too). So in New York, where the stakes for a sexual harassment claim have never been higher, providing a porn-free environment is an unquestioned goal at most places of employment…including libraries.
And so the true question here is not if a library can outright restrict access to internet pornography, but rather, how can a library make sure it’s not honoring one civil right at the expense of another? How does a library remain a beacon for the first amendment, but stand as a bulwark of equal access and fair treatment, too?
This balance can be achieved. The key, just like in other matters involving fundamental rights, is to have a clear, well-developed policy, applied by trained professionals, well-documented and guiding you every step of the way.
Every library policy should be customized for its unique environment (and harmonized with other policies), but here is a quick example of the type of document I describe, designed to fit into a library code of conduct, patron access agreement, or other behavior-related policy:
The[INSERT NAME] library absolutely respects users’ rights to reliably and confidentially access content, but also has a duty to ensure that its shared community space is free of behavior that demeans, intimidates, or discriminates against patrons, other visitors, and employees.
Therefore, to ensure compliance with local, state, and federal civil rights laws, anyone using or displaying library resources in a manner that creates an atmosphere that could harass, sexually harass, or discriminate against others may be asked to modify their behavior.
Examples that may require staff to ask you to modify behavior include, but are not limited to:
Any request for modification, action or determination under this policy will place the highest priority on the right of patrons to access content, and will seek ways to address the concern without restricting that access. Modification could include:
In some cases, however, “modification” may simply mean a request to discontinue the behavior. Examples include but are not limited to: deliberately leaving images of violence in a children’s area; prominently displaying sexually graphic content in full view of other patrons and employees; any activity that uses content to negatively target another person in the library.
Patrons who refuse to modify their behavior or to collaboratively resolve a concern may be found in violation of the library’s Code of Conduct and subject to restriction of privileges, per library policy.
“Prominently displaying” means the content is intentionally or incidentally visible to others, risking a hostile atmosphere.
By focusing not on the restriction of “pornography,” but on the creation of a respectful and welcoming environment for all, a library positions itself to ensure optimal access to content, but to follow state, local, and federal civil rights laws, too. And since one person’s anatomy textbook is another person’s porn, a policy that allows for proactive solutions, using incremental and creative adjustment, helps balance liberty with a respectful environment.
What part of first amendment jurisprudence allows this? The first amendment does prohibit the government from abridging the freedom of speech. However, it does not guarantee that all forms of protected speech may be heard on property owned or controlled by the government. Instead, the state (just like an owner of private owner property), has “power to preserve the property under its control for the use to which it is lawfully dedicated.” Further, as in any case “where the principal function of the property would be disrupted by expressive activity,” courts will not consider the main reading and reference area of a public library to be public forum where expression cannot be regulated.
Here is an example: let’s say I am working on book about inter-generational trauma. With only the best of intentions (writing a book exploring how the trauma of one generation can impact the next) I claim a table for myself near the reference desk, and start laying out books with pictures from the Jim Crow era. At the next table over, a young person sees the pictures, and suddenly finds the library is not the warm, happy place it was ten minutes ago. She gets very emotional, and the reference librarian notices. Using the policy, the librarian could then say: “I see you are working on an important project. Since this is a high-traffic area and these are some very stark imagines, can you consider moving to a table where you can access the material, but not risk a negative impact on others? That would help us serve you while also making sure the reference area is welcoming to all.”
If I say “yes,” and move, we all move on. If I say “no,” there may be a need for further discussion, but under the library’s policies, one way or another, an adjustment is made.
How could this work with a patron accessing porn on a public computer? The librarian states: “This is a public area that serves many people, and its environment must be respectful of our visitors and employees. What you are viewing is not consistent with that requirement, so it cannot be displayed is this area. Please stop now.”
If I say “yes,” and move, we all move on. If I say “no,” there isn’t much need for further discussion, since under the library’s policies, one way or another, an adjustment will be made.
This is what is called in first amendment jurisprudence a “time, place, and manner” restriction. Considering the mission of the library—to serve all—a policy of keeping the common areas free of graphic violence, invective, and sexually explicit content is very reasonable…especially since most parts of a library are not considered a “public forum.” It is the same restriction that allows librarians to ask people to speak quietly or not play music on their cell phones that others can hear.
I appreciate that this approach does require library staff to make and enforce value judgments about content—and some librarians may feel uneasy about that role. But the essential function of libraries rests on the ability of librarians to make content-based decisions. In fact, because they are trained to categorize and assess various types of information, librarians are some of the best-qualified people in the world to take such a burden on.
The case Sund v. City of Wichita Falls—also called the “Heather Has Two Mommies” case—shows the importance of qualified professionals making content decisions using consistently applied, well-reasoned policy. In that case, a town board tried to allow patrons to over-ride a head librarian’s decision as to where to shelve a children’s book depicting a positive, happy tale of a girl and her two mothers. When striking down the law, the judged cited the library’s careful accession policy and the level of training required of the librarian—and then confirmed that she had the final say in shelving decisions.
Librarians use such content discernment on a routine basis, and today’s civil rights laws demand they apply it to not only collections, but the library’s environment, as well. A policy that is well-developed, harmonized with other policies, and the subject of routine training and practice for staff can give this responsibility a reliable formula. Like all critical policies, such a policy should be custom-drafted and carefully considered before being approved by trustees, since if the resulting discernment is ever challenged, the board will need to stand by—or overrule—how it was applied in the field.
Balancing conflicting civil liberties requires careful analysis and diplomacy. But at the end of the day—I’m just gonna say this—unless they work in a very unique type of place, librarians have the right to expect a workplace largely free from internet porn. That freedom—and the freedom of patrons to access content without undue restriction—starts with your library’s commitment to civil rights.
Thank you for this important question.
 The only reason I know this is because I am a copyright attorney. No, really.
 See the new laws passed in 2018 about increased employer liability for sexual harassment.
 Obviously the sound editor at an erotic film production company hopes for a steady stream of work, but that’s the exception, not the rule.
 See the case Citizens for Cmty Values, Inc. v. Upper Arlington Public Library Board of Trustees, 2008 U.S. Dist LEXIS 85439 (2008), United States District Court for the Southern District of Ohio.
 I have no pre-emptive solution for people who bring their own laptops and are able to reserve a room, unless you have a policy that employees may enter such a room at any time, in which case my same advice applies.
 This case is a good read for any librarian seeking a refresher on the important of clear policy and a supportive board of trustees. It is also very laudatory of the librarian who fought for the right of the library to properly shelve the book.
I am not a judge, so I get to have a definition! Here is it: “Anything on the internet depicting a sex act, that comes with at least two pop-up adds.”
The director of the college print shop has come to me for copyright assistance. Our faculty often ask for photocopies of materials for distribution to students in class. She asks the faculty member if they have the appropriate permissions for making copies but is not always convinced by their answers. Is there any form she can ask faculty to sign attesting to their right to reproduce the materials that will protect the college in the case of copyright infringement? Thank you!
This question seems simple, but it actually involves some high-end concepts of business law and liability.
Most libraries, museums, theaters, and other units within large institutions are actually part of the same entity. In other words, although they may have a distinct identity within their institution (“The Michael Library” “The Peter Museum” or “the Catherine Gym”), there is only one actual legal entity (“Romanov College”).
Many people find these niceties hard to grasp, but here is why it is important: in this scenario, the single entity (the college) includes the on-campus copy shop. This means that what the shop does, the entity does…including alleged infringement.
This same unity generally applies to employees, too. In a body of law called “Master and Servant,” if an employee is performing a task related to their job, and not deliberately violating employer policy or the law, for purposes of the legal system, the employee’s actions will generally be imputed to the institution.
This is why institutions are best served in this area by educating their employees about copyright, and documenting the employees good-faith efforts to abide by the law (it is also why many HR manuals have warnings about the consequences of not following policy: it limits the institution’s ability to protect you).
This puts lot of pressure on the employees who staffing the in-house copy shop. What are their responsibilities? Do they need to educate their co-workers on copyright risk? Are they expected to protect the entire college? Each institution has different policies and job descriptions that answer those questions differently.
That said, is there a simple approach that can help with this? Yes. For the in-house copy shop (NOT for an on-campus contractor), below is a framework to address copyright priorities with diplomacy, tact, and helpfulness. It is designed to be used with an institution’s “Fair Use Assessment” form, and to route people to the person responsible for permissions at your institution.
NOTE: All that said, any copyright-related form not custom-designed for your organization should be reviewed for cohesion and consistency with other institutional policies, including those in the employee manual. Never use any copyright-related form without considering your institution’s unique needs and approach to copyright and liability! If your institution has an in-house lawyer, compliance officer, risk manager, or insurance carrier, make sure they are part of finalizing any such form or solution.
[INSTITUTION NAME] COPY SHOP COPYRIGHT HELPER
Hello! Thank you for coming to the [INSTITUTION NAME] copy shop to arrange duplication of your class materials.
As an instructor who generates your own copyright-protected material, you know the value of copyrights to others, and you know there are penalties for improper, unauthorized duplication.
Please follow the process below. When you check “yes” to 1 or 3, we are happy to assist you with your copies!
1. Do you have written permission from the copyright holder or their agent to make copies?
If “yes,” attach the permission, and let’s get copying!
If “no,” please move to question 2.
2. Do you have verbal permission from the copyright holder or their agent to make copies?
If “yes,” please confirm the permission in writing, return to us and check “yes,” above, and we’ll get right on this for you!
If “no,” please move to question 3.
3. Do you regard this copy as a fair use?
If “yes,” please fill out the attached [INSTITUTION NAME] fair use assessment form, and we’ll get your copies made!
If “no,” or “I don’t know,” please move to question #4.
4. Do you find this process frustrating and need help arranging permission to use this material, or more input on fair use?
If “yes,” please see XXXX at OFFICE LOCATION, who assists with permissions at INSTITUTION NAME. You can also call them at NUMBER or reach them at EMAIL. We hope to see you again soon!
MATERIALS (Title, number of pages):_______________________________
 This is one of the reasons many institutions opt to host a separate company for on-campus duplication services.
 I know! The law needs to move on. Perhaps “Captain” and “team member” can replace this.
 That said, never assume that is the case! Every allegation of liability must be carefully reviewed by a lawyer, as there are many exceptions and precise formulas that control such things.
 Demonstrable, good-faith effort to abide by the law can actually limit damages when copyright infringement is attributable to a not-for-profit education institution.
 If you don’t have either or one of these, share this RAQ with the decision-maker at your institution who could make that happen. Both the form, and a person who can facilitate permissions, are worthwhile risk management investments.
We are finding that librarians within larger institutions (like colleges and museums) are the go-to resource for copyright questions, which could also include institutional copyright concerns. What should a librarian do if the "question" they are presented with is really an allegation of copyright infringement?
“Ask The Lawyer” has touched on this topic a bit before. In our 9/19/17 RAQ post “Skating the Line Between Helpful Information and Legal Advice,” we discussed the risks posed when patrons and co-workers confuse the helpful attitude and boundless information provided by librarians with legal services.
The bottom line from that guidance was:
When [asked for legal advice], librarians must emphasize the boundary between good service and legal advice. Here is a formula for that:
I [the librarian] provide access to library materials based on the law and policy of my profession and institution; you [the user] should consult your own attorney regarding any legal concerns about your use of the materials being provided.
The current question takes this issue one step further: what if, when asked to play this front-lines role, the librarian is alerted to a potential claim of infringement against their institution?
Here are a few examples of how this can emerge:
Coach to librarian: “I thought I would check with you…this guy called us and said we used his photo of the volleyball team on fliers without his permission. But we’re not-for-profit, so copyright doesn’t apply, right?”
Curator to librarian: “We used a photo of the artist to promote the current installation on Facebook and some photographer is claiming we need a license? But the artist said it was okay!”
HR Director to librarian: “You are our go-to on copyright. This person says they generated it on their own time, but we own everything our employees create on our computers, right?”
Before anything else, it is important to say: many institutions have an established protocol for handling ANY threat of litigation, be it copyright infringement, slip-and-fall, or breach of contract. So first and foremost, librarians at larger institutions should know their institution’s policy or procedure for when a lawsuit is threatened. The risk manager, business manager, in-house legal counsel, or the employee who coordinates insurance coverage is often the point person for this.
When your institution has such a protocol, the reply to questions that reveal a threatened claim of infringement should be “That sounds like it could be a claim of copyright infringement. You should refer that the XXX, who handles claims.” And whether or not the inquirer follows through, to protect both the librarian and the institution, the librarian should then e-mail XXX to say “Today I referred Coach/Curator/HR Director to you, as they were contacted by someone who might have a legal claim.” This makes sure the legal hot potato doesn’t stop at the library, even if the other employee doesn’t follow through.
Of course, not every place will have an XXX, and not every person will seek advice the moment the threat of a claim arises. Here are some alternate versions of our three scenarios:
Coach to librarian: “This guy called us about three months ago and said we used his photo of the volleyball team on fliers without his permission. We also put it on t-shirts. Can you look at this “cease and desist” letter?”
Curator to librarian: “Remember that awesome installation? Well, I’m forwarding you some emails between me, the artist, and his photographer. They say we owe like $2,000.00 in licensing fees, but it’s fair use, right?”
HR Director to librarian: “I need to send this letter about work-for-hire, can you review?”
In these scenarios, institutional debate or engagement with the claimant is well under way. Even though things might be further along, and tempers hotter, the priority is still to end the engagement and get the matter in the right hands as soon as possible. So, even if your institution doesn’t have an XXX, and the situation arrives at your door a little more “hot,” the best thing to say to your co-worker is: “This sounds like a legal matter. We need to connect you with our attorney.”
If your co-worker has been so kind as to refer the (often angry) claimant to you without warning, and you are now on the phone with them, it is generally wise to:
1. Listen, and make notes of what the claimant is saying.
2. DO NOT ARGUE, DEBATE, or SUPPLY INFORMATION.
3. Use your customer service skills to simply say “This sounds very important. I have made a note, and will make sure someone gets back to you by [date].”
4. When arranging appropriate follow-up, minimize internal e-mail discussion, which could become discoverable evidence. Remember, the back-and-forth the employees engage in, unless it involves an attorney providing legal advice, is not subject to attorney-client privilege.
5. Get that legal hot potato to your attorney or insurance carrier and get out!
I realize that budgets are tight in the not-for-profit world, and not everyone has an attorney in-house or on call. This is where your insurance carrier could be a key player. Most bigger institutions have some form of coverage that addresses copyright. Your carrier does not want you to spend time arguing with a claimant, generating potentially damaging evidence! So in the absence of a lawyer, your insurance liaison and carrier (who will use a lawyer) might give your institution a place to send the “hot potato.”
The bottom line: every institution has a slightly different way it approaches litigation risk, but every institution should have an established way. Making sure library staff are aware of and comfortable with their institution’s protocols, and are supported in those protocols by trustees, officers and key personnel, are the keys to this issue. The statutory damages and mandatory attorneys’ fees often involved in copyright litigation make this a high risk management priority.
Librarians should be on the front lines of information access and fair use, but not the first line of defense for copyright litigation. Hopefully your institution appreciates this critical distinction, and supports it.
Or there’s always law school….
 I am sorry if any of these fictional scenarios have triggered stressful memories.
 If there isn’t one, I pose an alternative in a few paragraphs, but in most instances, there is.
 See the helpful script in paragraph two to remind people you are not a lawyer.
 Some alert carriers right away, others are wary of having a high claim number. Some carriers want to know the moment there is even HINT of a claim. This is something the person responsible for insurance will know.
 I am writing this guidance to be shared with such stakeholders, if it can be helpful.
I am working with an artist on a future display at our library. He is a regionally known professional artist. He is working on an engraving that makes use of a short poem by a deceased, well-known poet. He has learned that the poem is still under copyright and that the poet’s estate is active, but believes that unless it gets renewed, the poem should be in the public domain by the end of the year. If the exhibition is to be before that time, should he apply for permission to use it? If so, is that likely to be expensive?
This is a great question, since it shows how libraries not only provide access to information, but serve as patrons for the arts. This nurtures local culture, spurs community creativity, and brings special attention to a library.
As the member points out, though, this role also comes with its own set of legal issues, including copyright concerns.
“Ask the Lawyer” was created to provide practical guidance and tips to libraries, museums and archives on the front lines of culture. So, while there are many excellent treatises out there on copyright, fair use, contributory infringement, estate law, and contract law—all of which are showcased in this question—rather than wax philosophical, this answer will try, above all, to be useful to a librarian as they work with their community to nurture new art.
With that in mind, here is a checklist flowchart of “red flag” issues, and potential solutions, to help you find the smoothest legal road for bringing custom art to your library.
Bringing Custom Art to Your Library
Contract Development Flow Chart
Step 1: Establish the vision and shared goals for the projectWork with the artist to develop a carefully description of the project.
NOTE: In other words, is the artist considering any permission they might need, or fair use they need to make? In this exercise, they should rely on their own lawyer (sometimes provided pro bono by an arts organization), and never on input from the library.
NOTE: All discussions should make it clear that until a formal written agreement is reached, discussions are just speculative, and not a contract for services.
Step 2: Establish how it is being paid for
NOTE: if the artist is being paid (and they should be), or is selling anything based on the end result, and the materials are not becoming part of the library (like a mural or a custom Narnia-inspired wardrobe that is actually a built-in bookcase), the library should not purchase the materials…but the artist can factor the cost into the final price.
Step 3: Establish ownership
This step controls a lot of the latter considerations.
NOTE: If the answer is “yes,” a plan for jointly managing the asset should be developed. Generally, to avoid this complication, you want the answer to be “no.”
Step 4: Establish clear boundaries
This can help avoid confusion and stress later.
NOTE: “Nothing except moral support” is a great answer.
Step 5: Confirm critical responsibilities
NOTE: Unless you are co-authors on an exciting joint venture with a very well-developed contract and express insurance provisions, clearance and permissions should never be done by your library. Further, when you develop a final agreement for the work, it should contain a clause stating that the artist is the sole author of the work, the artist is responsible for obtaining necessary permissions, that all necessary permissions have been secured, and that the artist will hold harmless, indemnify, and defend the library (and its trustees, employees and volunteers) in the event a third party claims the work is infringing any copyright, trade mark, image right, or right to privacy.
Step 6: Protect the library!
You can tell by the questions on the worksheet that my final guidance on is this: when developing a public art project, be picky about the details, and turn them into a good contract.
Because there are too many variables amongst the libraries (public libraries, college/university libraries, hospital and prison libraries, museums, private archives), I cannot offer a standard template for this. A public library is in a different place than a library within a college or museum; they all live in different regulatory universes, have different vulnerabilities, and have different rules and obligations. This is why simply “borrowing” a template from another institution is often a bad idea.
However, I can say that any good contract will address the above-raised issues, and if you have used this worksheet in advance, assembling such a contract will be easier.
Step 7: Promote Culture, Enjoy Art
I know: nothing kills inspiration faster than the word “indemnification.” This worksheet brings up a lot of messy details that, if brought up at the wrong time, can hamper creativity.
But I have found that addressing these details early actually helps a project move forward. It gives the library and the artist clarity about their roles. It gives the security of assurance about vital details. Most importantly, by inspiring forethought about possible impediments, it makes challenging projects possible.
So revel in the details, make room on the walls, and let the art flow!
 You’ll see that throughout this checklist I also refer to the artist as the “author.” The copyright law uses “author” as a catch-all term for the creator, whether they are a writer, photographer, sculptor, etc…
 I know, if the library can buy the materials, they’re tax free! But both the state of NY and the IRS are pretty clear on this.
We are planning on installing a bike rack for our community members. With it begs the question, should we also loan bicycles? Many libraries already do. Here is but one example: http://cpl.prl.ab.ca/about-us/policies/bike-borrowing-agreement. My question is, as long as you have a policy in place, and the borrower signs the agreement, are all injuries waived once off your property? Is it really as simple as that? Please help me identify any worst case scenario possibilities that I should be prepared for.
From tools, to bikes, to digital printers, an increasing number of libraries are providing access to more than information.
I imagine someone has named this phenomenon, but I got a J.D., not an MLS, so I couldn’t find its overall name. Therefore, I call it “The Library of Things.” 
Joining “The Library of Things,” signals a sea change in the identity of a library. It expands its lending model beyond information (books, media, data) to capability (printers, kayaks, cameras). It converts a community asset from a place of intellectual access to a source of physical action and production.
This combined role is re-framing community awareness of libraries. But whether it’s called a “makerspace,” or a “tool library” or simply a “3D printer,” these resources are challenging traditional library laws and ethics governing access, liability, and patron privacy. The member’s question is a perfect example of the complications that brings.
What complications? The “Library of Things” is not simply about accessing assets, but using them, applying them, and sometimes, riding them. Most library law (parts of the education law, CPLR 4509, a robust array of civil rights jurisprudence, and a body of case law regarding library operations) is built around that premise that a library’s mission to provide access to information must be safeguarded at all costs. But that jurisprudence is largely silent on the issues posed by using equipment to take action or produce something. That function, while important, is not enshrined in the law. Prediction: the Library of Things will soon start testing the conventions of libraries’ legal status quo.
But let’s get down to the brass tacks (or the greased chains). What about the bikes?
Regarding the member’s precise question (“…as long as you have a policy in place, and the borrower signs the agreement, are all injuries waived once off your property? Is it really as simple as that?”), the answer is “no.” The liability for lending equipment is a varied as the disclaimers and warrantees that equipment comes with, and in general, a simple policy and waiver are not the only things needed to anticipate risk and reduce liability. So how does a library do it?
First (and I cannot say this enough): no library should contemplate the loan of functional equipment without thoroughly considering the risks and conditions of that equipment’s use. The member’s question says it all: Please help me identify any worst case scenario possibilities that I should be prepared for.
When it comes to lending bikes, here an initial laundry list or “worst case scenario” thinking:
Don’t worry…there are many ways to address the risks these questions highlight. One solution, which can greatly ease the burden on a library, is to have the liability assumed (and insurance provided) by a third party through a rental contract. With that approach, rather than accession the bikes, the library picks up the fee (rather like paying for access to a database), and the patrons, following an established policy, check the bikes out on their card. In such an arrangement, the library’s contract, the underlying policies, and the agreement signed by the patron, could be drafted to promote safety and to shift the liabilities away from the library…an arrangement that must be confirmed by the right combination of contract provisions and proof of insurance.
Second: no library should contemplate the loan of functional equipment without thoroughly considering the unique nature of their library. Is the library a public institution? Is it affiliated with a larger organization? What are the limits of its insurance? Are there physical hazards near it that warrant enhanced care? If your public library is at the top of a steep hill with a railroad crossing at the bottom, it should not use the same bike loan policy as the college library in the flat town with no CXS line.
Third (but in many ways, first): Is the contemplated asset critical to the mission of the library? Is fulfilling the patron need for this equipment consistent with the library’s strategic plan and goals? If the answers are “yes,” then addressing the first two questions should be easier, since clearly the identified risks and complications will be worth it. If bikes with baskets help fulfill the mission to deliver books to the senior center, then bikes with baskets it is.
And finally, there are ancillary considerations. Is the loan of equipment a “circulation record” subject to privacy laws? Is the service as accessible as possible per ADA? Do you need to follow a procurement policy when seeking a third-party bike provider or a purchase source?
When developing a bike loan program, it’s essential to consider:
That’s a lot, but there are resources to help you. The library’s insurance carrier should be consulted at the outset. The NY Department of Transportation maintains a list of current bike laws. There are an array of groups that offer free safety training, and many civic organizations offer free helmets. If possible, a third party vendor is the way to go, since it can help limit the library’s liability. Liability waivers should be custom-drafted to fit your library and the precise arrangements it has made for the bikes, but drafting your waiver should be the last step, after you’ve made your decisions about safety and conditions.
With a little coordination, you can address all the bells (but by law, leave off the whistles).
There’s a lot to wade through, but one thing is clear: libraries are evolving. This means that with a few fits and starts, the law will evolve with them. So once your organization decides to join the Library of Things, know the assets, know your library, stick to your mission, and roll with it.
With the right planning, it’s as easy as riding a—
 I invented this term as I wrote. During editing, my husband (who does have a library degree) checked “Library of Things,” and found that it’s been in use for quite a while. So I got to think I was clever for about 2 hours.
 I’m not a historian, either, but I really do think this change is significant. Think about it: Ben Franklin, who founded this continent’s first formal lending library, was a printer. But did that library give members free access to a printing press? Or a candle mold? Lending things has not been baked into the model.
 These documents should be reviewed by the library’s lawyer. It doesn’t hurt to have them reviewed by the library’s liability insurance carrier, too.
 For instance, Camrose, AB, the library in the member’s question, is in Canada, a country with a markedly different approach to risk and health issues.
We have video recordings of campus speakers that we are interested in digitizing and publishing to an online platform. They are currently on VHS and/or DVD and available in the Library to be checked-out.
The speakers include writers and poets who recite their published, copyrighted works to the college audience. Is it possible for us to post the recordings of these readings (as well as question and answer sessions) online? Most likely there was no signed license agreement when filmed.
Part of the mission of higher education institutions is to bring important, provocative, and enlightening speakers to their communities. Over the years, this results in an impressive roster of authors, artists, professionals, politicians, comedians, dignitaries, and civic leaders, having spoken on campus. Sometimes, all or part of this roster was captured on film, video, or audio recording.
The rights to those recordings—and what can be done with them in the digital age—can present a complicated situation. Each individual recording comes with a suite of considerations that can make a digitization project difficult. But in a scenario like the one posed by the member, critical points of analysis can be assessed, so a way forward is found. Here are those critical points:
Assessment Point #1: Who owns the copyright (to the recording)?
First, it is useful to establish who owns the copyright to the actual recording. Since copyright to a recording vests in the person who created the recording, not the person being recorded (unless it was a selfie), this is sometimes easy to assess. As we say in the biz: “who pushed the ‘record’ button?”
If the recording was made by an employee of the institution, and there was no contractual agreement otherwise, then the copyright to the recording is owned by the institution. If it was recorded by a student who just happened to be there, or a third-party attendee, the school doesn’t own it (which becomes an issue in the subsequent steps). Awareness of this factor is a good starting point for what lies ahead.
If your institution owns the copyrights to the recording, you can skip points #2, #3 and #4, below.
Assessment Point #2: Is this recording part of the library’s collection?
Just because the educational institution owns the physical copy doesn’t mean it is part of the library’s collection. For purposes of numbers 3 and 4, below, if your institution doesn’t own the recording, in order to convert and/or conserve it under Copyright Act Section 108 (the section giving special rights to certain libraries), the original recording must be formally cataloged and included in the library’s collection.
Assessment Point #3: Is the library in a position to convert the copy to a digital medium?
If the copy is formally a part of the library’s collection, and it is on a format considered “obsolete” under section 108 of the Copyright code (so long as the devices are no longer manufactured, VHS is, for example, is considered “obsolete”), the library may convert it to a digital format, and loan it out as provided by the §108. NOTE: this does NOT mean you can include it in an online digital collection, for anyone to access any time, but it takes you one step closer to it!
Assessment Point #4: Does the library need to conserve the copy?
If the original copy is deteriorating, it may be duplicated as set forth in Section 108. NOTE: this also does NOT mean you can include it in an online digital collection, but it makes sure than once you can, your original copy is safe, and backed up for posterity.
Assessment Point #5: Did the institution have any right to record, and/or to use the image of the person who was recorded?
This requires scouring the contracts of the institution. Most speaker contracts these days include terms controlling the right (or not) to make a recording, but, as reflected in the scenario posed by the member, in the past this was not the case. This assessment is critical, especially since at academic institutions, other departments at the institution may want to use the content to promote and celebrate the institution…but in New York, the commercial use of a person’s image, without their written consent, can carry both civil and criminal penalties.
Assessment Point #6: Are there any concerns with trademark?
The risk posed in #5 is increased if the speakers’s name and image is currently being used for purposes of a trademark (like “Maya Angelou” which is protected under Federal Trademark 86978575), or if a trademark was on display during the presentation. This means any arguably commercial use (like selling copies, putting it on the school’s website or catalog, or selling a t-shirt promoting the collection) should only be done in consultation with an attorney.
Assessment Point #7: Are there other copyright concerns?
This is the meat in the sandwich of the member’s scenario. Going through the above steps, even if an institution:
1) owns the recording;
2) includes the recording in the library’s catalog;
3) meets the 108 criteria to convert it from an obsolete format;
4) meets the 108 criteria to make preservation copies;
5) has permission to use the name and likeness of the speaker in any and all formats, for whatever reason, forever;
6) verifies there are no trademarks involved…
…if the speaker read a copyrighted work during the recording, that “performance” of a copyrighted work MIGHT be subject to its own copyright, and thus, bring with it a host of new restrictions, cramping the bounds of your digital usage.
What a pain, right?
Fortunately, there is solution. For any library at an educational institution contemplating digitizing the institution’s recorded guest speakers, if the written record doesn’t reflect clear permission to record and use the content, writing to the original speaker, or the current copyright owners, to ask for permission, may be the best solution. A sample request, with the variables notes in CAPS, is right here1:
You may recall speaking at INSTITUTION on DATE. During that performance, you read [INSERT TITLE(S)] (hereinafter, the “Works”).
Our on-campus library seeks to include a copy of that performance, recorded on FORMAT, in an online, digital collection to be called TITLE (the “Collection”). We would like to include the recording in an online Collection, so it may be accessed by the public, for purposes of enjoyment and scholarship.
To that end, we ask the following:
1. Are you the sole copyright owner of the Works? Yes No
2. If you are not the owner, do you retain the right to give permission for their reproduction, distribution, performance, and display? Yes No
If you are not the copyright holder, or do not hold the rights, please let us know who does: _____________________________________________________________
If you are the copyright holder, please consider the below requests:
3. Copyright License
May [INSTITUTION] have a non-transferable, irrevocable license to reproduce, duplicate, display, perform, and, by virtue of the recording being part of the Collection, prepare a derivative work of, the Work(s), solely as performed by you and recorded by INSTITUTION on DATE? Yes No
We would like to use your name and picture to promote the Collection. May [INSTITUTION] use your name and likeness, including but not limited to photos or images of you, the recorded sound of your voice, for the purpose of promoting the Collection in hard copy, on the institution’s website, and via any other medium existing now, or later developed? Yes No
Thank you for considering this request. I included a self-addressed, stamped envelope, in the hope of a favorable reply.
Of course, the risk of asking is that they say “no”…and that they demand you stop using the recording of the derivative work! That is why in all of this, any contracts should be assessed by an attorney, so the rights of your institution are protected, and any requests for permissions should be carefully considered prior to submitting the request.
So, the answer is (and I appreciate it took a long time to get there!): unless the recording were news coverage—which is assessed under a different array of laws—permission (given either at the time of the arrangement, or many years later) for digital duplication and distribution is required, but can be arranged well after the event.
1 NOTE: This approach is for educational institutions that were also the original recorders of the work to be digitized, who are seeking a wide degree of latitude on their use. This approach is NOT suggested for digitization efforts involving content generated by third parties at non-educational institutions. It also does not cover recordings of musical works (that would be a whole other answer!).
This answer was inspired by some recent questions…
In the quest to give excellent service and maximum access, librarians must apply intellectual property guidelines--a skill the average person has not honed. Library users, observing this skill (or having been alerted to a copyright concern by a librarian), may then ask for legal advice.
Here’s an example:
LIBRARIAN: We have that copy Moulin Rouge you wanted!
PATRON: Thank you! I am planning to generate a version of it with my commentary over it.
LIBRARIAN: How interesting. Are you planning to get permission, or claim Fair Use?
LIBRARIAN: Perhaps you would be interested in this book on copyright, too.
It is professionally appropriate for librarians to promote awareness of copyright, trademark, and the other laws that govern the use of content. But what can happen next can be risky:
PATRON: Thank you for the copyright book! I am pretty sure my use will be considered “Fair.” What do you think?
LIBRARIAN: I am so glad you found the book helpful. As to any use of the DVD we provided…that is a question for your lawyer.
Unfortunately, the most attentive librarians are often the closest to this exposure, since they are the most dogged about providing access—exploring the furthest reaches of Fair Use and Section 108 to do it. However, it also means that the pressure to go one step beyond, and advise the patron about what they intend to do with the materials, may be frequent. When it occurs, librarians must emphasize the boundary between good service and legal advice. Here is a formula for that:
I [the librarian] provide access to library materials based on the law and policy of my profession and institution; you [the user] should consult your own attorney regarding any legal concerns about your use of the materials being provided.
In the event any of the service happens in writing, it is helpful to confirm this in writing. This doesn’t have to read like an official “notice,” but can simply be a nice note:
Hi [NAME]. We were glad to help you find [RESOURCE]. As I mentioned, if you have legal concerns about the material you borrowed, you should consult an attorney.
By that way, I am not suggesting that every patron question needs a disclaimer! But for those areas where librarians are actively applying intellectual property law, or providing access to law-related resources, the boundaries of excellent service and legal advice can blur. Users, who have a high-trust relationship with their librarians, might not appreciate that boundary. Tightening the focus and emphasizing it protects the patron, protects the institution, and protects the librarian.