RAQs: Recently Asked Questions

Topic: Trustee Addresses for Open Meetings - 10/27/2021
As you know, Governor Kathy Hochul signed legislation (S.50001/A.40001) extending virtua...
Posted: Wednesday, October 27, 2021 Permalink

MEMBER QUESTION

As you know, Governor Kathy Hochul signed legislation (S.50001/A.40001) extending virtual access to public meetings under New York State's Open Meetings Law, which allows New Yorkers to virtually participate in local government meetings during the COVID-19 pandemic.

My assumption is that library trustees will continue to be required to provide their home address or the location from where they are remotely attending the virtual meeting. Has that law requirement changed with this extension?

WNYLRC ATTORNEY'S RESPONSE

Short answer

There is no requirement to disclose the location of a remote participant under the past Executive Orders or the current modification.

 

Long answer

I am grateful for this question since it gives me a chance to revisit an earlier answer ("Ask the Lawyer" #120) and clarify something.

The answer in "120" was based on the Executive Order(s) that temporarily modified the Open Meetings Law, allowing proceedings to be entirely virtual in the interests of safety...IF the proceedings could be seen/heard by the public, AND IF they were later transcribed.

This new law--which expires on January 15, 2022--uses legislation to achieve the same (temporary) modification.

So, if it is duplicative, what do I need to clarify?

As the member's question alludes to, before these modifications, any board member who wanted to participate remotely in an OML-governed meeting (which is any library board or committee meeting) had to disclose the address they were calling in from--because, essentially, that location was considered a "satellite" location of the meeting, where members of the public could attend. 

This long-standing approach led to some interesting scenarios over the years.  If the remote link was in an airport, the meeting was being conducted, partially, in an airport.  Or if the remote link was in a person's living room, the meeting was being conducted, partially, in the living room.  And by law and guidance, any person who wanted to physically attend the meeting at the satellite location had the right to do so...which is why the satellite location had to be included in the meeting notice.

But the modifications we are discussing changed that.

While the current guidance and commentary from the New York Committee on Open Government (the "COOG") does not say anything expressly about home addresses,[1] as I read it, neither the Executive Order nor the current legislative modification good through January 2022, require remote participants to disclose the location they are calling/zooming in from.  Further, it certainly doesn't transform the location they are calling from into a "satellite" meeting location....which means, if I choose to attend from my living room, a member of the public can't, by law, demand entry.

So, if the current guidance is silent, why do I believe remote participants' addresses don't need to be provided under the modified law?  While we can debate the competing virtues of physical v. virtual participation,[2] what is clear to me is that the purpose of the modifications--public safety--would be undone if every remote participant became a satellite location and was required to host the public.  And if the public can't demand entry to a remote location, there is no basis to disclose its address.

In my original reply, I didn't drill this point in hard enough[3].  That is why the "short answer" above states my position plainly, and why I am grateful for this chance to clarify.

Thanks for a helpful question.  May all your meetings be safe and fruitful, no matter where they occur.

 



[1] I am putting a screenshot of this guidance below the reply, and the live link, as of October 14, 2021, is here: https://opengovernment.ny.gov/system/files/documents/2021/09/chapter-417-of-laws-of-2021_0.pdf.

[2] Which I hope the COOG does at its next meeting, on October 19th, which I will be attending as an audience member...virtually.

[3] What I said was "While disclosing the exact location of all meeting participants may not be possible (since they will be on the phone), the notice should strive to include as much information as possible that is most useful to the public, including the location of any physical participants."  That last clause should be "...including the location of the physical meeting, if there is one."  This type of slip is why the profession of "editor" is still a vital job, even though the fields of publishing and journalism are changing so rapidly.

Screenshot of guidance referred to in footnote 1 which has a link to the document in question.

 

Tags: Board of Trustees, FOIA/FOIL, Open Meetings Law, Compliance

Topic: Availability of Open Meeting Documents - 10/27/2021
The Governor signed S1150A/A1228A into law [on] October 19, 2021. Now Chapter 481, this change req...
Posted: Wednesday, October 27, 2021 Permalink

MEMBER QUESTION

The Governor signed S1150A/A1228A into law [on] October 19, 2021. Now Chapter 481, this change requires that open meeting documents be available upon request or posted to the public body's website at least 24 hours prior to the open meeting at which the documents will be discussed.  Can you comment?

AND

Several libraries have questions regarding the new Open Meetings Law S1150A/A1228A

The law requires that open meeting documents be available upon request or posted to the public body’s website at least 24 hours prior to the open meeting at which the documents will be discussed. https://nyassembly.gov/leg/?default_fld=&leg_video=&bn=A01228&term=2021&Summary=Y&Memo=Y&Text=Y

Do libraries that furnish the documents upon request also have to post the documents on their websites?

Does a library have to post the documents on their website 24 hours in advance, if no one requests them?

What encompasses agency documents that “will be discussed”? I assume it includes agenda, previous meeting minutes, director’s report, treasurer’s report, proposed annual budget, etc. What about a new personnel manual that is enormous, or, a board member who introduces items under “new business” but does not submit them ahead of time to add to the agenda?

How long does a library have to leave the documents up on their website after the meeting takes place?

Will this new law remain in effect if the Gov. does not extend the modification to Open Meetings Law after January 15, 2022?

 

WNYLRC ATTORNEY'S RESPONSE

Because there are a lot of layers here, let's start with some bedrock fundamentals.

Bedrock #1: All NY-chartered libraries, including association libraries, must abide by the Open Meetings Law (the "OML"), a New York State law which requires certain meetings be accessible in real time to the general public.[1]

Bedrock #2: While all chartered libraries must follow the OML, only public libraries, as quasi-governmental agencies, are subject to its cousin, the Freedom of Information Law ("FOIL").[2]

Bedrock #3: As the members write, the OML has been changed to require the posting of materials to be reviewed at least 24 hours in advance of a meeting.  For libraries, this means that even if the library is not an "agency" subject to FOIL, the documents to be reviewed at the meeting--unless disclosure is barred for an express reason, such as attorney-client privilege[3]--must be posted.

Okay, with three sturdy bedrocks to build on, let's lay the foundation for the answers.

As stated before, the OML was recently changed to require advance posting of materials to be reviewed at a meeting.[4]

According to the Assembly memo that accompanied the bill, here is the basis for the change:

[S]ection 103 of the Open Meetings Law [currently only] requires agencies to make

any documents to be discussed at an upcoming open meeting available to

the public, "to the extent practicable." This vague phrase has created

loopholes and a way for agencies to bypass this requirement. In an anal-

ysis of 41 local governments conducted by the New York Coalition for

Open Government, 15 percent do not post meeting documents.

 

COVID-19 has made it apparent that there is technology readily available

for agencies to use in an effort to be more transparent.  Meetings are

only taking place virtually and individuals are at an immense disadvan-

tage because there is no in-person opportunity to request a hard copy of

any documents at the meeting. Therefore, it is even more important that

agencies utilize the technology available to post documents online where

the public can effectively access them.

The exact wording adopted to address these concerns, found in Section 103 of the New York Public Officers Law, goes into effect November 18th, and reads:

Agency records available to the public pursuant to article six of this chapter, as well as any proposed resolution, law, rule, regulation, policy or any amendment thereto, that is scheduled to be the subject of discussion by a public body during an open meeting shall be made available, upon request therefor, to the extent practicable at least twenty-four hours prior to the meeting during which the records will be discussed. Copies of such records may be made available for a reasonable fee, determined in the same manner as provided therefor in article six of this chapter. If the agency in which a public body functions maintains a regularly and routinely updated website and utilizes a high speed internet connection, such records shall be posted on the website to the extent practicable at least twenty-four hours prior to the meeting. An agency may, but shall not be required to, expend additional moneys to implement the provisions of this subdivision.

And with that "the Assembly hath spoken," and we can answer the questions.

Question 1: Do libraries that furnish the documents upon request also have to post the documents on their websites?

If a library "maintains a regularly and routinely updated website and utilizes a high speed internet connection" the documents must be "posted on the website to the extent practicable." 

I take this to read "If your library website has an event calendar you maintain, you need to get your meeting documents up on it at least 24 hours before the meeting."

Question 2: Does a library have to post the documents on their website 24 hours in advance, if no one requests them?

If a library "maintains a regularly and routinely updated website and utilizes a high speed internet connection" the documents must be "posted on the website to the extent practicable" even if no one has requested them.

What encompasses agency documents that “will be discussed”? I assume it includes agenda, previous meeting minutes, director’s report, treasurer’s report, proposed annual budget, etc.

Small note: Even before this change, the minutes should already be available, since Section 106 of the OML expressly requires availability within two weeks of the meeting.

Answer for public libraries: Every document that will be reviewed at the meeting.

Answer for association libraries: If you don't want to be a test case regarding the interaction of FOIL and the OML, post every document that will be reviewed at the meeting.   If you do want to be a test case, cite the slightly imperfect writing that describes what is to be disclosed ("Agency records available to the public pursuant to article six of this chapter"), and say that since your library is not an “agency” per Article 6 of the Open Meetings Law, and thus not subject to FOIL (see Bedrock #2), you don't need to provide a darn thing.

I am kidding.  Don't do that.  I am writing the Committee on Open Government to request guidance on this issue, and I am fairly confident they will confirm that the intent is that the entire board packet is required to be posted, even when the subject organization is not subject to FOIL; I will post a follow-up when I get some input.

Question 3: What about a new personnel manual that is enormous, or a board member who introduces items under “new business” but does not submit them ahead of time to add to the agenda?

Large documents should be posted; per the new section of the law, if requested in hard copy, the library can charge a "reasonable fee."

Regarding "new business," if the new business raised is only verbal, there is no problem.  If, however, the "new business" is a letter, article, or proposed policy, the board action should be confined to establishing the next steps to be taken once proper posting can be effected.  And if the "new business" must be handled on an emergency or expedited basis, that can be done via a meeting of the Executive Committee,[5] with any action ratified in a later meeting, with the written content shared in advance as required.

How long does a library have to leave the documents up on their website after the meeting takes place?

I am sure there will be more guidance on this in the future, but for now, I read the law as requiring the posting to be "to the extent practicable," meaning for as long as the content can be posted without causing undue expense or burden on the system.

Will this new law remain in effect if the Gov. does not extend the modification to Open Meetings Law after January 15, 2022?

Unlike the current change to the OML regarding remote attendance (which is currently in effect, and sunsets in January of 2022), this modification of the OML Section 103 goes into effect on November 18th and stays with us until it is struck down by a court (not likely) or changed by the Assembly (not likely, except for slight refinements).

Where we'll see some follow-up and guidance about this new law is from the Committee on Open Government.  The COOG, as they call it, posts notice of its meetings here: https://opengovernment.ny.gov/committee-news.  I'll be sending a question about the scope of document disclosure by association libraries, and if you tune into the next meeting (when it is scheduled), you will likely see me in the WebEx as a mute observer. 

Thanks for a thoughtful and timely array of questions.  Stay tuned.

 

 



[1] This is required by Section 260-a of the New York Education Law, which is the law that allows the creation of such libraries.  So public access is baked into a chartered library's DNA.

[2] See the Committee on Open Government advisory opinion at https://docsopengovernment.dos.ny.gov/coog/ftext/f16795.htm, which states: "For purposes of applying the Freedom of Information Law, I do not believe that an association library, a private non-governmental entity, would be subject to that statute; contrarily, a public library, which is established by government and "belongs to the public" [Education Law, §253(2)] would be subject to the Freedom of Information Law." That said, all documentation an association library generates and submits to a governmental agency is subject to a FOIL request to that agency.

[3] My personal favorite disclosure exemption, of course.

[4] This was not the only change; there were also temporary changes regarding remote attendance.  See ATL “Open Meetings Law and end of NYS' Emergency Status - 06/30/2021” for more on that, (we'll also tackle it in one of the questions here).

[5] NOTE: Per the Section 260-a of the Education Law, in cities with a million or more people, even the committee meetings must be open.

Tags: Board of Trustees, Compliance, FOIA/FOIL, Open Meetings Law

Topic: NY's paid sick leave law - 11/05/2020
The state's new paid sick leave law recently went into effect on September 30th. According to ...
Posted: Thursday, November 5, 2020 Permalink

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. 



[1] I know this sounds like a re-hash of the member's point in the question, but in this case, I mean as that term is defined in Article 6 of the Labor Law, which is the section 196-b is part of. 

[2] Section 190 of the Labor Law, whose definitions apply to 196-b, states: “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency."

[3] How this is accomplished will vary, BUT there should always be a written document that sets forth how it is accomplished, and what compensation structure, benefits, and laws apply to the employee.  If there uncertainly about how an employee gets worker's comp, unemployment, or paid family leave, that is a sign the library and entity have to examine things a bit further.

[4] Or school district.

[5] Worker's compensation, unemployment, paid family leave, etc.

[6] "Comp time" is when employees can "bank" time off, rather than get paid time-and-a-half for overtime.  Only municipalities who are exempt from the Fair Labor Standards Act can do that.  For more on that, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/59.

[7] Except the Taylor Law.

[8] I can't emphasize this enough: even when this is the case, the library board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees.

[9] Just in case you read this and think "Oops—we may need to develop a policy!" A good breakdown and resources for compliance can be found at https://www.ny.gov/programs/new-york-paid-sick-leave

[10] That said, this chart only considers the application of Labor Law 196-b.  If it tackled everything, it would be...very, very long.  For a good case that shows how tricky these “what is a library” issues can be when it comes to employment, check out this case.

[11] It will vary from place to place, but for public libraries, your civil service rep should be a great resource for this.

[12] And another big thank-you for agreeing to be publicly thanked.

Tags: Employee Rights, , Public Libraries, Sick Leave, FOIA/FOIL, Health Management, Public Health, Records Management, PTO, Vacation, and Leave

Topic: Public Records in Archives and FOIL Requests - 11/15/2018
We attended the excellent FOIL workshop just offered by WNYLRC and hope you repeat it. Our institu...
Posted: Thursday, November 15, 2018 Permalink

MEMBER QUESTION

We attended the excellent FOIL workshop just offered by WNYLRC and hope you repeat it. Our institution has any number of manuscripts and papers that could be considered Fugitive Records: archival material from government offices, most of which was donated decades before the advent of the NY State Archives and modern public record regulations. Multiple area institutions are probably in the same situation.

We have physical custody (long story) of the papers of a retired congressmember from the area, but we deliberately did not send a Deed of Gift, because we did not want legal responsibility and ownership. We would prefer to return the papers to the congessmember because the collection is just too large for us to responsibly house or process. Negotiations along these lines have not been successful and we have not found another taker for them.

My questions are:

1. Are a congressmember's papers considered public records and subject to FOIL requests? 

2. If we do have the congressmember sign a deed of gift, so that we can weed, discard, and transfer as we see fit, are we liable if someone submits a FOIL request for records that we disposed of?

3. For archival records given to us from government offices almost a hundred years ago, are we obligated to repatriate them?

4. Also, are these archival records donated decades ago subject to FOIL requests?

WNYLRC ATTORNEY'S RESPONSE

It was an excellent workshop.[1] Nice work, WNYLRC.

As reviewed at the 10/24/18 session, FOIL[2], and its federal cousin, FOIA[3], govern the accessibility of public records.  When these laws are paired, they create a giant net, facilitating compelled disclosure of documents generated by local, state, and federal governments.

But not all government documentation is accessible through FOIA or FOIL.  Some types of records are omitted by specific exemption; others were never intended to fall under the compelled disclosure laws in the first place.

Congressional records are of the latter type; FOIA was never intended to mandate disclosure of records created by the U.S. Congress.  So in the member’s scenario, although there could be an array of other laws restricting the content from donation, duplication, and/or display—and some laws compelling disclosure—FOIA/FOIL does not apply. 

Moving to the next part of the member’s question: What if your institution was given records from an entity subject to FOIA or FOIL?  Can your institution be compelled to disclose them?  Depending on the nature of your institution, maybe.  But remember—FOIL applies only to government entities.  So, no matter what type of archives it hosts,[4] if your library or museum is private, your institution is not subject to FOIL.[5]

And now for the final parts of the member’s submission:  Can FOIL and FOIA considerations impact acceptance of donations? And if your private institution has, in all innocence, stewarded government-generated records for fifty or one hundred years, will it be forced to turn them over?

I will answer these questions using a short (very short) story. 

One day, as you staff the New York Museum of Asphalt[6], a town supervisor arrives at your door, breathless with excitement.  In his hands, he holds the complete file of the first smooth-paved road in his town!  Buried amidst the crumbling original material, you see a hand-written petition by a local cycling club, asking the town to smooth over its bone-jarring cobblestones.   

The supervisor is happy and proud; he rescued the records from a dumpster at the Town Hall while renovations were being done to the moldy basement.[7] You are excited and gratified; this would be the perfect complement to the Museum of Asphalt’s government procurement records dating from around 1900.  

But then you see that all the supervisor’s records are from before 1910. 

Uh-oh.

Because the records pre-date 1910, the town supervisor needs to contact the New York State Archives. 

Why? In New York, local governments cannot dispose of any records created before 1910 without written approval from the State Archives.  This rule applies regardless of the retention period otherwise set by law and regulation.

This “1910 requirement” has its roots in §57 of the Arts and Cultural Affairs Law, which states: “No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education.”  

So to bring this back to FOIL… not only must New York’s governments disclose certain records, they must also ensure those records are properly retained.  Advisory opinions about the intersection of these two obligations can be found on the New York Committee on Open Government’s page at https://www.dos.ny.gov/coog/foil_listing/findex.html. [8]

So does this mean that when the supervisor contacts the State Archives, he has to report the Museum of Asphalt’s old government records, too? 

No.

While these laws are important tools for protecting New York’s heritage, they do not in and of themselves compel return of government records held by a private entity. I found no case law or advisory opinions recommending such a course of action.  And (both for the fun of it, and to leave no stone unturned), I called Sarah Durling, my region’s rep at the NY Archives.  We discussed that while the preservation obligations of government officials are very clear, there is no “enforcement wing,” of the Archives directing return of government records once they have been accessioned and stewarded by private hands.

Of course, if the records were stolen, obtained via fraud, or conditionally granted by a donor, it is possible they could be removed from a private collection.  But there is no risk that after simple notification, an agent from the NY Archives will arrive at your institution, adjust their fedora, and snatch the documents from your temperature-controlled storage unit while saying “This belongs in another museum.”[9]

So to re-cap: not all government records are subject to FOIA or FOIL.  An entity not subject to FOIL cannot be compelled to grant access to documents simply because they originated with a FOIL-able entity[10].  And when it comes to accepting donations of government documents, the constraints of the NY Arts 7 Cultural Affairs law, not FOIL, apply.

And pro tip: reading the FOIL “Advisory Opinions” on the NY Committee on Open Government’s page is a blast.

Thank you!



[1] I did not put the workshop on, so this is not puffery.  But I was there, and the two presenters, attorney Mike Kuzma and bookstore owner/activist Leslie Pickering—who not only know FOIL/FOIA, but live FOIL/FOIA—were both educational and inspiring.

[2] New York’s “Freedom of Information Law”

[3] U.S.A.’s “Freedom of Information Act”

[4] There is, of course, an exception to everything (even exceptions).  If your library was the recipient of state or federal grant money, or other conditional funds or program, the records related to that particular matter might be subject to FOIA or FOIL.  But only those records, and not information tangentially related to them (like the e-mails generated on a grant-funded computer).

[5] For a GREAT breakdown on this, see the NY Committee on Open Government’s Advisory Opinion at https://docs.dos.ny.gov/coog/ftext/f17386.html.

[6] I tried to make something suitably obscure up, but lo and behold, there really is a Museum of Asphalt!  It’s in Sacramento, California.  Let’s pretend this one is in New York.

[7] I know this scenario is likely causing some archivists out there an all-too-familiar pain.  I am sorry, but this is how it goes, right?

[8] The FOIL guidance on this page—which included library-specific topics—is fascinating.  My new G-rated fantasy starts with a walk in a wind-swept pine forest, and ends with unlimited free time to rummage around the opinions there.

[9] I told Sara Durling that if the New York State Archives ever does create this sort of job, they should call me, because what a cool job.

[10] If that entity is a contractor for the FOIL-able entity, performing a government function (like a microfilm service), that’s a different story.

 

Tags: Public Records, FOIA/FOIL

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