MEMBER QUESTION

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?

WNYLRC ATTORNEY'S RESPONSE

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?

[End Scene]

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.[1]

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:

• Always require that employees be treated with respect;
• Have a clearly articulated and easily located FOIL policy;
• Have clarity within the organization as to who is responsible for requests and appeals under FOIL[2];
• Maintain records in such a way that FOIL requests are easy and economical to fulfill;
• Allocate time and budget to train the person responsible for responding to FOIL request, so they know what to do (and when to consult a lawyer).

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:

1. The Library designates the following person(s) as "Records Access Officer(s)":

Job title or name:  _____________________________________________

Business address: _____________________________________________

Email address: ________________________________________________

2. The Records Access Officer is responsible for ensuring appropriate library response to public requests for access to records, and shall ensure that the Library:
   1. Maintains an up-to-date subject matter list of type of Library records, based on the categories of documents in the LGS-1[3].
   2. Assist persons seeking public library records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records.
   3. Contact persons seeking records when a request is voluminous or when locating the records involves substantial effort, so that personnel may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of records requested.
   4. Upon locating the records, take one of the following actions:
      1. Make records available for inspection; OR,
      2. Deny access to the records in whole or in part and explain in writing the reasons therefor.
   5. Upon request for copies of records:
   1. Make a copy available upon payment or offer to pay established fees, if any, in accordance with Section 8 of this Policy; OR,
   2. Permit the requester to copy those records under appropriate supervision to ensure the records' physical integrity.
   3. Upon request, certify that a record is a true copy; and
   1. The NAME Library is not the custodian for such records; OR,
   2. The records of which NAME Library is a custodian cannot be found after diligent search.
   3. Upon failure to locate records, certify that;

Section 3: Location

Records shall be available for public inspection and copying at:

(Location)____________________________________

(Address)____________________________________

____________________________________________

____________________________________________

____________________________________________

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

1. A written request may be required, but oral requests may be accepted when records are readily available.
2. If records are maintained on the internet, the requester shall be informed that the records are accessible via the internet and in printed form either on paper or other information storage medium.
3. A response shall be given within five business days of receipt of a request by:
   1. informing a person requesting records that the request or portion of the request does not reasonably describe the records sought, including direction, to the extent possible, that would enable that person to request records reasonably described; OR,
   2. granting or denying access to records in whole or in part; OR,
   3. acknowledging the receipt of a request in writing, including an approximate date when the request will be granted or denied in whole or in part, which shall be reasonable under the circumstances of the request and shall not be more than twenty business days after the date of the acknowledgment, or if it is known that circumstances prevent disclosure within twenty business days from the date of such acknowledgment, providing a statement in writing indicating the reason for inability to grant the request within that time and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part; OR,
   4. if the receipt of request was acknowledged in writing and included an approximate date when the request would be granted in whole or in part within twenty business days of such acknowledgment, but circumstances prevent disclosure within that time, providing a statement in writing within twenty business days of such acknowledgment specifying the reason for the inability to do so and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part.
4. In determining a reasonable time for granting or denying a request under the circumstances of a request, the Library shall consider the volume of a request, the ease or difficulty in locating, retrieving or generating records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed, the number of requests received by the agency, and similar factors that bear on the ability to grant access to records promptly and within a reasonable time.
5. A failure to comply with the time limitations described herein shall constitute a denial of a request that may be appealed. Such failure shall include situations in which the Records Access Officer (or other employee):
1. fails to grant access to the records sought, deny access in writing or acknowledge the receipt of a request within five business days of the receipt of a request; OR,
2. acknowledges the receipt of a request within five business days but fails to furnish an approximate date when the request will be granted or denied in whole or in part; OR,
3. furnishes an acknowledgment of the receipt of a request within five business days with an approximate date for granting or denying access in whole or in part that is unreasonable under the circumstances of the request; OR,
4. fails to respond to a request within a reasonable time after the approximate date given or within twenty business days after the date of the acknowledgment of the receipt of a request; OR,
5. determines to grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request, but fails to do so, unless the agency provides the reason for its inability to do so in writing and a date certain within which the request will be granted in whole or in part; OR,
6. does not grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request and fails to provide the reason in writing explaining the inability to do so and a date certain by which the request will be granted in whole or in part; OR,
7. responds to a request, stating that more than twenty business days is needed to grant or deny the request in whole or in part and provides a date certain within which that will be accomplished, but such date is unreasonable under the circumstances of the request.

Section 6: Subject matter list

1. The Library shall maintain a reasonably detailed current list by subject matter of all records in its possession, based on the categories of records set forth in the LGS-1, whether or not records are available pursuant to subdivision two of Section eighty-seven of the Public Officers Law.
2. The "Subject Matter List shall be sufficiently detailed to permit identification of the category of the record sought; the LGS-1 breakdown and description of record categories is the default system the Library shall use.  Whenever possible, this Subject Matter List shall accord with the categories in the Library's [Document Retention and Destruction Policy OR equivalent].
3. The Subject Matter List shall be updated annually by POSITION. The most recent update shall appear on the first page of the subject matter list.

Section 7: Denial of access to records

1. Denial of access to records shall be in writing stating the reason therefor and advising the requester of the right to appeal to the individual or body established to determine appeals, [who or which] shall be identified by name, title, business address and business phone number.
2. If requested records are not provided promptly, as required in Section 5 of this policy, such failure shall also be deemed a denial of access.
3. The following "FOIL Appeal Officer" shall determine appeals regarding denial of access to records under the Freedom of Information Law:
   Name: ___________________________________________________

Title or position: ____________________________________________

Address for FOIL purposes:___________________________________

_________________________________________________________

Phone number:____________________________________________
 

4. Any person denied access to records may appeal within thirty days of a denial.
5. The time for deciding an appeal by the individual or body designated to determine appeals shall commence upon receipt of a written appeal identifying:
   1. the date and location of requests for records;
   2. a description, to the extent possible, of the records that were denied; and
   3. the name and return address of the person denied access.
6. A failure to determine an appeal within ten business days of its receipt by granting access to the records sought or fully explaining the reasons for further denial in writing shall constitute a denial of the appeal.
1. The person or body designated to determine appeals shall transmit to the Committee on Open Government copies of all appeals upon receipt of appeals. Such copies shall be addressed to:
   
   Committee on Open Government
   Department of State
   One Commerce Plaza
   99 Washington Avenue, Suite 650
   Albany, NY 12231
    
2. The person or body designated to determine appeals shall inform the appellant and the Committee on Open Government of its determination in writing within ten business days of receipt of an appeal. The determination shall be transmitted to the Committee on Open Government in the same manner as set forth subdivision (f) of this section.

Section 8: Fees

1. There shall be no fee charged for:
   1. inspection of records;
   2. search for records; or
   3. any certification pursuant to this part.
2. Copies may be provided without charging a fee.
3. Fees for copies may be charged, provided that:
1. the fee for copying records shall not exceed 25 cents per page for photocopies not exceeding 9 by 14 inches. This section shall not be construed to mandate the raising of fees where agencies or municipalities in the past have charged less that 25 cents for such copies;
2. the fee for photocopies of records in excess of 9 x 14 inches shall not exceed the actual cost of reproduction; or
3. an agency has the authority to redact portions of a paper record and does so prior to disclosure of the record by making a photocopy from which the proper redactions are made.
1. an amount equal to the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record, but only when more than two hours of the employee’s time is necessary to do so; and
2. the actual cost of the storage devices or media provided to the person making the request in complying with such request; or
3. the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency’s information technology equipment is inadequate to prepare a copy, and if such service is used to prepare the copy.
4. The fee an agency may charge for a copy of any other record is based on the actual cost of reproduction and may include only the following:
5. When the Library has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, or when doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the Library shall retrieve or extract such record or data electronically. In such case, the Library may charge a fee in accordance with Section 8.3 above.
6. The Library shall inform a person requesting a record of the estimated cost of preparing a copy of the record if more than two hours of an agency employee’s time is needed, or if it is necessary to retain an outside professional service to prepare a copy of the record.
7. The Library may require that the fee for copying or reproducing a record be paid in advance of the preparation of such copy.

Section 9: Public notice

A notice containing:

• the title or name and business address of the Library Records Access Officer
• the title or name and business address of the Library's FOIL Appeal Officer
• the location where records can be seen or copied

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:

(Location)____________________________________

(Address)____________________________________

____________________________________________

____________________________________________

____________________________________________

 

The following Library employee(s) will help you to exercise your right to access:

Library Records Access Officer(s)

(name)_____________________________________________

(job title)____________________________________________

(business address)_____________________________________

____________________________________________________

(phone #)____________________________________________

 

If you are denied access to a record, you may appeal to the following person(s) or body:

(name)_____________________________________________

(job title)____________________________________________

(business address)_____________________________________

____________________________________________________

(phone #)____________________________________________

 

 

MEMBER QUESTION

I am writing to update the excellent advice on the RAQ page from November 2020 in regards to the retention of health screening records in a school district, local government, or state agency (under a separate retention schedule.)

I just called the state archives to confirm the retention period of library employee daily health screenings using LGS-1. They referred me to item 792c (positive health screening) with a 6 year retention and 792d (negative health screening) with a 1 year retention. (pg: 210-211 in the schedule.)

They have also updated their guidance on records related questions for COVID-19 http://www.archives.nysed.gov/records/documenting-government-response-to-covid-19

Thank you for answering the original question in November. I hope this update to the response is helpful.

WNYLRC ATTORNEY'S RESPONSE

First: thank you very much for your kind words and feedback.  Both are very appreciated, and I encourage users of the service to keep a dialogue going--the service is only as good as the questions and input that inspire it.

Second, just to recap my advice from the November, 2020 "Ask the Lawyer" referenced by the member, it boiled down to:

"With no clear bucket and no clear requirements, at this point, I have to answer that retention of proof of screening should be permanent."

Time, as they say, has marched on, and as the member states, the State Archives has offered some additional guidance on this topic.

Here's where I am at: I have reviewed the additional information referenced by the member, and despite that input, I am just not confident that the time periods in LGS-792 "c" and "d" are the right fit for records showing a public library's routine use of employee screening as part of their Safety Plan,[1] and I continued to advise that retention be permanent (at least for now).

Here are the three reasons for my continued hesitation:

Reason 1: LGS-1 792a-f have a clear application, and I am not certain a pandemic response is quite it

I appreciate that 792c, which is part of the "Public Health" section of the LGS-1, applies to a "positive report" of a screening, and 792d is for a "negative report of individual screened."

However, as the remaining sections of 792 show, 792 applies to screenings conducted for public health initiatives that also (might) use: summary reports, master indices of "participants," informed consent forms, and a log used to compile data extracted from the screen.  

Logs, data crunching, and "informed consent" are all part of a public health agency's toolbox for public health initiatives in response to concerns such as the transmission and impact of a dangerous virus like COVID-19.

But unlike the majority of such initiatives, which tackle challenges such as STD's, tuberculosis, and cancer, employee health screenings for COVID-19 symptoms are part of a much larger effort conducted as part of an emergency response.

Reason 2: Emergency response records under the LGS-1

Because of the "emergency response" aspect discussed above, when I first reviewed the original question, I considered the applicability of LGS-1 802 ("public health incident files") which pertains to "records related to public health emergencies, communicable disease occurrences, and epidemics." 

Under 802 (also referenced in the State Archive's resource linked by the member), the retention period for "[s]urveillance, investigation, and response records" created in response to an epidemic is THREE YEARS "after [the] outbreak has abated."

Are a public library's employee health screenings "surveillance, investigation, and response records" during a "public health incident?"  Since employers are required to report the names of employees who screen positive to their local health department--who then engage in contract tracing and outreach--I believe they could be, which debatably makes the retention period of employee screenings (positive or negative) three years.

However, even three years doesn't sit right with me.  Here is why:

Reason 3: The other reasons to keep the records

My original answer went a little beyond the scope of required retention, addressing not only the precise retention period that might be required by the NY Arts & Cultural Affairs Law,[2]  but also, the other factors a public library might wish to consider when determining how long to retain the records of employee screenings.[3]

These "other factors" include legal claims based on alleged non-compliance with required pandemic procedures, some of which could underlie personal injury claims, alleged civil rights violations or even a contract violation (which has a six-year statute of limitations).[4]

In the body of New York case law involving personal injury, civil rights, and contract claims against public libraries, one can see an interesting pattern: sometimes public libraries are treated as government agencies, and sometimes, they are not.[5]  This is why public libraries are often required by their municipality to have their own insurance.  This also means that while they might be held to the document retention standards of municipal agencies, sometimes, they won't have the legal protections of one.

My concern was--and strongly remains--that a process of purging documents that could demonstrate use of and adherence to screening programs will only disadvantage a library, even if the lost record was properly disposed of under the LGS-1.[6]  There are reasons beyond required retention to keep those records.  And without a clear directive on retention, I think it is best that a library keep a close hold on them.

In closing

I am sure no public library that documents input from State Archives about the applicable retention period and then purges negative screens after 1 year will be met with a penalty from the State. 

But as you can see in "Reason 3," the State is not my primary concern. 

With the benefit of 5 additional months since my original answer, I will take advantage of this chance to refine it to revise my above-quoted statement and change it to:

"Even when we get clear requirements, I have to answer that retention of proof of screening should be permanent, or at least until your library's attorney has determined that any advantage to the library created by retention is past, and your library has determined they are of no historical significance."

Thank you very much to the member for giving me the opportunity to re-visit this issue and to offer this updated (and hopefully improved) guidance.  I am sorry to cause you more use of storage room, but gratified to have the chance to offer this analysis!

 

Afternote:  Below are the relevant excerpts from LGS-1 792 and 802:

792 CO2 508, MU1 472, MI1 409

Results of screening programs, except lead poisoning

a          Summary reports on screening results: RETENTION: PERMANENT

b          Master index or listing of participants: RETENTION: 50 years

c          Positive report of individual screened, including statement of consent or participation   and authorization for release of information: RETENTION: 6 years, or 3 years after    individual attains age 18, whichever is longer

d          Negative report of individual screened, including statement of consent or participation   and authorization for release of information: RETENTION: 1 year

e          Log or other working record of screening and testing, used to compile statistics and other      data: RETENTION: 1 year

f           Anonymous H.I.V. test results and related records: RETENTION: 7 years

NOTE: Identifiable H.I.V. related records are covered by item nos. 743 and 745, and related laboratory records are covered by items in the Laboratory subsection.

 

802

Public health incident files, including records related to public health emergencies, communicable disease occurrences, and epidemics

a          Surveillance, investigation, and response records: RETENTION: 3 years after outbreak          has abated

 

...

NOTE: Appraise these records for historical significance prior to disposition. Records of unusual disease occurrences or epidemics may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice.

 

MEMBER QUESTION

We got a question regarding how the new rules for records retention (the "LGS-1") impacts the retention of school library borrowing records.

Under the new LGS-1, how long must school library borrowing records be retained?  How does that impact BOCES, district, and school library records purging? 

 

WNYLRC ATTORNEY'S RESPONSE

Thank you for this question.  The LGS-1 is one of my favorite rabbit holes to explore.

I took a look at Schedule Item 596, which applies to "Borrowing or loaning records."  I have put a screenshot of the section, as it appears in the schedule as displayed on the NY State Archives web site: http://www.archives.nysed.gov/common/archives/files/lgs1.pdf

As you can see in the screenshot, 596 fixes the retention period for borrowing or loaning records for school libraries as "0 years after no longer needed."

"No longer needed" is one of those phrases in the LGS-1 that renders the retention period variable.  This flexibility can be both helpful and frustrating, since a district, BOCES, or school library must determine, via policy, what "needed" means.

This can vary from place to place, but in all instances should be based on a determination of what is meant (for the district/BOCES/or school library) by "need," and then confirmed in a policy.

After that, best practice is always to purge records once their retention period is over, and for something as deeply connected to ethics, compliance and privacy as library records,[1] that is doubly true.  For school libraries, that retention period is zero, once the records are no longer needed.

Therefore: determining how long student library borrowing records are "needed" (something that may vary from library to library, district to district, BOCES to BOCES), and then purging the record as soon as possible,[2] is a good way to use the LGS-1 to enhance an institution's commitment to privacy.

 

Thanks to the member for bringing up this nuance.  These issues are at the crossroads of ethics, compliance and automation, and require continuous and careful attention to detail and resulting policy.

 

 

MEMBER QUESTION

The state's new paid sick leave law recently went into effect on September 30th. According to the state's website, eligibility requirements are as follows:

"All private-sector employees in New York State are covered, regardless of industry, occupation, part-time status, and overtime exempt status. Federal, state, and local government employees are NOT covered, but employees of charter schools, private schools, and not-for-profit corporations are covered."

As a school district public library, I'm curious to know if we fall into this local government category and so are not covered by the law.  According to the state comptroller's table summary of local government entities [https://www.osc.state.ny.us/local-government/data/local-government-entities], public libraries are listed as "Miscellaneous Local Public Organizations".

However, in regards to page 33 of the State's Local Government handbook,

"Local government in New York State comprises counties, cities, towns and villages, which are corporate entities known as municipal corporations. These units of local government provide most local government services. Special purpose governmental units also furnish some basic services, such as sewer and water services. School districts, although defined as municipal corporations, are single-purpose units concerned basically with education in the primary and secondary grades. Fire districts, also considered local governments in New York State, are single-purpose units that provide fire protection in areas of towns. Fire districts are classified as district corporations. There are other governmental entities which have attributes of local governments but which are not local governments. These miscellaneous units or entities are generally special-purpose or administrative units normally providing a single service for a specific geographic area."

I wonder if a school district public library, such as ourselves, doesn't fall under this last category of governmental entity: one which has attributes of local governments but which is not a local government. If this is so, then this new law would seem to apply to us as well.

It's all a little confusing. Maybe you can help!

WNYLRC ATTORNEY'S RESPONSE

I wish I could reply to this excellent question with a plain "yes" or "no." But I cannot.

Why not?  Because, while as the member points out, a public library's "type" is relevant to this question, what may also be relevant is how the employees are being paid.  So answering this question requires a two-factor analysis:

Factor 1: Is the library in question considered a "type" of "governmental agency^[1]?"

AND/OR

Factor 2: are the employees of that library compensated as if they were employees of a governmental agency?

If the answer to either question is "yes," Labor Law 196-b (which is the new "sick leave" law) doesn't apply.  If the answer to both is "no," then it may be time for the non-exempt library to draft a new Sick Leave Policy.

 

Now let's talk about the factors in this "two-factor test."

Factor 1: Is the library in question considered a "type" of "governmental agency?

Most libraries in the state of New York are NOT "governmental agencies" as that term is used in Labor Law Article 6 ^[2].

Sure, the library has to account for taxpayer money as required by the "General Municipal Law."  And yes, it is subject to parts of the "Public Officers Law."  And yep—it may even have to disclose certain records under the Freedom of Information Law. 

But none of that means they are performing a function of a "governmental agency" as defined under the Labor Law, which is where the new "sick leave" rules come from.  Under the Labor Law, a public library is far more likely to be considered a not-for-profit education corporation required to offer sick leave (and provide Workers' Compensation Insurance, and follow the NY Minimum wage laws...), than an exempt entity like a school district.

Now that being said, even if a library is not a "governmental agency," they may also be exempt from 196-b if their employees are....

 

Factor 2: "Compensated as if they were employees of a governmental agency"

How can this type of "compensation" happen, if the library itself isn't a "governmental agency?"

In New York, many libraries use their sponsoring municipalities and sponsoring school districts[3] as the "employer" of their employees—even though the library board retains the legal autonomy to hire, discipline, set compensation, promote, or terminate the employees. 

In this type of scenario, the library employees are a) paid directly by the municipality[4], b) are covered by the municipality's insurance[5],  c) get the municipality's benefits, and (most tellingly) are d) eligible for "comp time"^[6] otherwise barred by rules requiring mandatory overtime.  In short, under much of the Labor Law,[7] they are treated as municipal/district employees.^[8]

 

So does my public library have to give employees sick leave under the new law, or what?

Sadly, there is no "bright-line" rule.  But!  I have created a handy "Library-Municipality Relationship Type" chart to help you figure it out if it's something your library needs to worry about:

Library-municipality Relationship Type	Hallmarks	Legal impact with regard to employees and labor law	What this means with regard to the new "Sick Leave" law ("196-b").
1. "Total Coupling" Type	The library never separated any functions from the sponsoring entity; all finances, employee compensation, employee benefits, procurements, and property are owned/controlled by the municipal entity.   Ideally, the relationship is confirmed in writing.	In "total coupling," employees of the library, for Labor Law 196-b purposes, are considered municipal/district employees, even though the library board retains the authority to hire, discipline, set compensation, promote, or terminate the employees.	Employees are totally covered by the policies and benefits of the municipality/district, including the sick leave policy, and 196-b does not apply.
2. "Select support: determinative" Type	The library has separated some functions from the sponsoring entity, but some functions determinative of legal status remain controlled by the municipal entity; for example, if a town still owns the library's building, or payroll and benefits are through a city.   Ideally, the relationship is confirmed in writing.	In a "Select support: determinative" scenario, if "employment" is a determinative factor, employees of the library  are paid by the municipality/district, so for legal purposes the employees might be considered municipal employees, even though the board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees, and even though the library has de-coupled from the entity in other ways.	IF employees are totally paid by and covered by the benefits of the municipality/district, including their sick leave policy, 196-b does not apply.  Otherwise, the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" to be exempt.
3. "Select support: non-determinative" Type	The library has separated from the sponsoring entity to the degree that any slight collaboration between the library and the municipality does not determine legal status.  For example, the Town may plow the parking lot as a courtesy, but does not own the building, hold the money, or provide payroll/benefits.   Ideally, the relationship is confirmed in writing.	In a "Select support: non-determinative" scenario, the select support related to employees would not risk creating employer-employee status, or influence compensation and benefits, but could still be helpful assistance.  For example: if library employees were allowed to attend town employee trainings and professional development to save money for the library.	Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).
4. "Totally De-coupled" Type	The library has completely separated functions from any sponsoring entity.  The library owns the building, does all its own procurement and contracting, is the sole administrator of employee-related matters, and takes no extras or freebies from its municipalities/district.   No need to confirm the lack of relationship in writing, but you can exchange New Year's cards.	In a "total de-coupling," there is no select support related to employees. Librarians and municipal/district employees might say "hi," but they don't attend regular trainings or joint work sessions, and they are not in any way co-workers.	Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b[9], OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).

 

And there you have it.  From what I have seen, every public library in New York State handles its coupling/de-coupling in a different way.  Charter documents, bylaws, MOU's, and political/diplomatic relations can influence this just as much (if not more than) that law.  If you know where your library stands, you can not only assess its obligations under the Labor Law, but many other critical compliance obligations, as well.^[10]

The bottom line here is: library employees shouldn't be left in a lurch, especially when it comes to sick leave, family medical leave, short-term disability, workers' compensation, and paid family medical leave—all of which are rooted in the question of "who" their employer is.  This means library trustees should periodically confirm, with certainty and clarity, what policies apply to their workforce.[11]  Regardless of where a library falls on the above chart, this can be accomplished with a confirmed, clear set of policies.

As employment law gets more and more intricate, and as we continue to live with a pandemic, this need for clarity will only get more critical.

I want to say a big "THANK YOU" to  Ben Gocker at Tupper Lake Public Library for submitting this excellent question and bearing with me while I talked through the answer with him.^[12] Like all librarians I get to work with on "Ask the Lawyer," Ben is a critical thinker who brought a lot of research and practical experience to his question.  He also exhibited incredible patience as I tried to explain the mutable legal status of bodies defined by the Education Law, operating under the Not-for-Profit Corporation Law, subject to the General Municipal Law, living with the Civil Service law, and of debatable status under the Labor Law.  Thanks again, Ben!

I hope this approach and chart come in handy for public libraries out there struggling with this question.