MEMBER QUESTION

For public libraries that must comply with Freedom of Information Law (FOIL), how does FOIL impact our organization's use of social media? What sort of social media records can be FOIL-ed and what are some best practices for using social media in regards to FOIL?

 

WNYLRC ATTORNEY'S RESPONSE

This is a timely question, because New York's Committee on Open Government (the authority on all things FOIL), has recently stated[1] that not only do public libraries have to follow FOIL, but cooperative public library systems have to, as well. So, the answer will be useful for libraries and library systems[2] alike.

NOTE: For those of you who need a quick primer on FOIL to get the most of this question: FOIL is the state law requiring timely public access to public agency records (with exceptions). As you can imagine, complying with this obligation requires a clear understanding of what constitutes a "public agency" is, what a "record" is, and what any exceptions might be.

FOIL defines a public agency record as “any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever…” FOIL §86(4).

There is the potential for financial costs for agencies that fail to make timely and compliant FOIL disclosures.[3]

Further guidance on FOIL is available at https://opengovernment.ny.gov/freedom-information-law.

Before we dive deeply into this question, aside from the above small primer on FOIL, it is necessary to consider what "social media" is, in the FOIL context.

When websites were first developed and published by local governments (and libraries), the phrase "social media" was not used to refer to them.

Since that time, government agency use of not only web sites, but more socially interactive utilities like Facebook and Twitter, has exploded. From public "state of emergency" announcements via Twitter, to town council meetings streamed live via Facebook, government use of social media is rampant.

Despite this explosion, the phrase "social media", as used today, is not legally defined. Most critically, the phrase "social media" is not found in the LGS-1[4], which in New York's comprehensive list of record "types" that are subject to mandatory retention.[5]

Among other things, this means there is no one catch-all obligation to retain (and thus have them around to have to disclose) records posted via social media. Which means that instead of focusing on the medium (social media) we have to focus on the message (the "type" of record the social media is being used to create and/or transmit).

While certainly not the exclusive "type", the LGS-1 category social media is mostly used to create and/or transmit is type #68: "Public Relations".

Here is how the LGS-1 categorizes public relation records and sets their retention periods:

Public Relations 68 CO2 11, MU1 11, ED1 11, MI1 11

Official copy of publication, including newsletter, press release, published report, calendar, bulletin, recording, homepage or other website file, educational or informational program material prepared by or for local government, and associated consent forms.

NOTE: Specific publications are listed in other places in this Schedule. Before using this item to determine the minimum legal retention for a publication, determine if that publication is covered by a more specific item.

a

Publications which contain significant information or substantial evidence of plans and directions for government activities, or publications where critical information is not contained in other publications: RETENTION: PERMANENT

b

Publications where critical information is also contained in other publications or reports, publications which document routine activities, publications which contain only routine information, or publications (such as webpages) that Local Government Schedule (LGS-1) General Administration 15 facilitate access to government information on the Internet: RETENTION: 0 after no longer needed

NOTE: Appraise these records for historical significance prior to disposition. Records with historical value should be retained permanently. Local governments should consider permanent retention of samples of publications covered by part "b" of the above item. Contact the State Archives for additional advice in this area.

What does this quote mean? Among other things, unless a library is using a social media publication to be the "official copy" of news, it does not have to retain the copy.

And if the copy of the social media post is not retained, it is not available to be disclosed per FOIL (although the official copy might).

So, with all that established, let's re-visit the member's questions:

For public libraries that must comply with Freedom of Information Law (FOIL), how does FOIL impact our organization's use of social media? What sort of social media records can be FOIL-ed and what are some best practices for using social media in regards to FOIL?

Considering that the LGS-1 confirms that libraries are not obligated to retain everything posted on social media, but FOIL requires that if the record exists and is subject to FOIL, the library must disclose it, I will boil the answers down to 4 very simple things:

1. The library should have a FOIL compliance policy.

Why?

This will ensure the library has the right system and designated personnel for receiving, evaluating, replying to, and considering appeals of FOIL requests.

For more information on putting a policy in place, see the "model rules for agencies" at https://opengovernment.ny.gov/freedom-information-law#model-rules-for-agencies.

2. Social media should never be the sole copy of a notice or publication put out by a library.

Why?

If it is, the social media content may be subject to a "permanent" or a defined period of retention, even though the library doesn't control the means of publication (thus creating more work to properly retain the copy). This means that when the record is requested under FOIL, the Library had better be able to provide it, even if the social media provider is no longer in business, or for some reason, the content is no longer in existence.

3. Every public library[6] should have a records retention policy that tracks its obligations as set forth in the LGS-1 and sets the retention periods and purge times for routine records.

Why?

First, it's the law.[7]

Second, using the LGS-1 forces your library to consider what "type" of records it is generating and what retention periods apply to them--including records generated on and/or being pushed out by social media.

Third, but just as critically, it will encourage your library to purge or formally archive records no longer actively needed, minimizing the content to be disclosed under FOIL.

Fourth, it will better position your library's FOIL officer to timely respond to requests.

And fifth (but of the most relevance to the questions) it will enable your library to determine what, if any, of its social media content must be retained and thus ready for disclosure under FOIL (hopefully not much).

4. Whenever possible, the library should use its own media for primary communications, only relying on social media for secondary "boosting" of content.

Why?

This will make sure the primary copy the library is obligated to retain (if the LGS-1 requires retention) is controlled by the Library, making it simpler to fulfill a FOIL request.

5. The Library should only use its own social media (not accounts belonging to employees) for creating library records.

Why?

Because if the library relies on social media owned by employees and doesn't take care to generate in-house primary copies of certain records, the content generated by the employee could be subject to FOIL (for an example of how that can happen, see the COOG commentary FOIL AO 19732, found at https://docsopengovernment.dos.ny.gov/coog/ftext/f19732.htm).

Still with me? Have I lost you in the morass of FOIL and LGS-1? Hang in there!

I realize this is getting rather complex. So here are some practical examples of social media messages a library might post, and how that post might play out under the lens of FOIL, LGS-1, and other factors.

Social media message	Places where message is published	Publication a record subject to FOIL?	Retention period of record(s)	Considerations
Twitter post: "We have a new director!" with a link to more information about the new director on the library website.	Library website   Library newsletter   Twitter	YES for all.	Twitter post: 0 after useful   Library website: 0 after useful Library   Newsletter: Permanent	If only Twitter was used, the retention period of the announcement via Twitter would be 6 years.   Regardless of format, each version of the record is subject to FOIL.
Facebook post: "You can find the proposed 2023 budget here [link to library website]"; post also found in a link on an employee's page, as they discuss the budget process on their personal account.	Library Facebook page   Library website   Hard copy of proposed budget available from library circulation desk upon request   Copy of proposed budget posted with board materials per OML.	YES for all.	Twitter post: 0 after useful   Library website: 0 after useful   Library newsletter: Permanent   Library budget: Permanent   Board packet with budget information: Permanent	The budget and meeting materials must be retained per the LGS-1; all the records available to the Library are subject to FOIL, but there is no obligation to retain the Facebook post.   Meanwhile, as they are not an official publication by the library, the link and commentary by the library employee is not subject to FOIL or any retention requirement.
Library Instagram post: "Look at this blank wall and imagine seeing a smiling face next year! The Library is applying for a variance to enable a drive-up window for pick-ups and returns; a hearing before the Zoning Board will be held on DATE," with link to hearing notice and renovation plans.	Boosted notice and link to materials: Instagram   Copy of building plans and notification of Zoning Board of Appeals meeting, along with proof of publication and mailing to neighbors and community as required by local law.	YES for all.	Instagram post: 0 after useful   Building permit documentation: permanent.   Proof of mailing and publication: varies (see LGS-1).	When mailings and publication of public notice are set by law, a library should ensure the precise publication requirements are followed; social media can supplement awareness but cannot replace required means of notice and publication.
Tweet from the library: "After review as required by policy, the Library has determined that the book "Gender Queer" is properly included in the catalog."	Library Twitter account   "News" section of library website   Library also has a record of complete decision-making process	YES to all.	Tweet: Because it is not the only means of notification, only for so long as useful.   Announcement on web site: Because public relations record is redundant to case file, only for so long as useful.   Actual record of decision: 6 years, but per LGS-1, consider archiving for future reference after retention period has expired.	This is one to consider carefully.   If the library's Twitter is set up to encourage extensive discussion of the decision, the library should consider archiving the Twitter content, as it will be subject to FOIL and may be of archival value.   However, while the Twitter content may be subject to FOIL for so long as it exists, if not archived nor accessible, there is no obligation to save it, and thus no concern that it was not properly stored.
Doodle poll linked from library's Facebook post: "Should we add a children's story hour at 6PM on Saturdays?" Poll solely conducted on Doodle, announced only via Facebook.[8]	No other primary publication.	YES.	Retention period: because this arguably falls into LGS-1 category 603 ("Program and exhibit file documenting planning and implementation of programs"), 6 years.	When planning library events, a file containing the full record should be kept--including a screen shot or image copy of the social media process at the time it was used--so disclosure per FOIL can be affected without having to return to an old social media post or other third-party resource.
Not a message, but social media information requested per FOIL:   List of usernames blocked from the Library's Twitter account.	Let's consider 3 scenarios:   1) the library only maintains the list on its Twitter account;   2) the library maintains a list, drawn from its Twitter account, in a "social media management" file;   3) The library blocks usernames only if they do not follow the Library's Code of Conduct with respect to social media; the list is kept with other "Code of Conduct" records.	YES to all forms.	Retention period: as set by library policy, either specifically or using a catch-all period.	The documentation of a decision to bar a username (or names) from the library's Twitter will be subject to FOIL; however, what the record looks like will be determined by how the library reaches and then documents that decision.   If the Twitter account is active and the printout of the lists can be obtained, that can be subject to FOIL; but if another record provides the information, the printout from Twitter might not be needed to fulfill the request for information.

When considering the examples above, and the member's questions, the important take-aways are:

• Know what records the library has; and
• Have a good system for disclosing those records upon request (if they are subject to FOIL).

In each of these examples, it should be clear that reliance on third-party social media to house the sole copy of the FOIL-able record is not the optimal way to do business. On the flip side, no fancy software is needed to archive contemporaneous social media records; rather, libraries should be using their record retention policies to determine how their records are generated, and how they are managed to be ready for disclosure under FOIL.

With a little planning, this can be done economically and in a way that furthers the library's commitment to information access and transparency

Thank you for hanging in there with me on this one! May all your FOIL requests be clear, and all your social media be impactful.

Below are the retention periods set by the LGS-1, specifically for libraries.

591 CO2 340, MU1 304, ED1 165, MI1 254

Incorporation, chartering and registration records: RETENTION: PERMANENT

592 CO2 341, MU1 305, ED1 158, MI1 255

Accession records: RETENTION: 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.

593 CO2 342, ED1 166, MI1 256

Informational copies of records prepared by and received from public library system, including but not limited to directories, minutes, budgets and reports: RETENTION: 0 after superseded or obsolete

594 MU1 306

Directory of public library system and member libraries, prepared by public library system (member library's copy): RETENTION: 0 after superseded or obsolete

595 Library card application records: RETENTION: 3 years after card expires or is inactive

596 CO2 343, MU1 307, ED1 159, MI1 257

Borrowing or loaning records: RETENTION: 0 after no longer needed

597

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: Local Government Schedule (LGS-1) Library/Library System RETENTION: 0 after no longer needed

b When copies of original materials are requested: RETENTION: 5 years after order is completed

598 CO2 344, MU1 308, ED1 160, MI1 258

Catalog of holdings

a Manuscript or published catalog: RETENTION: PERMANENT

b Continuously updated catalog: RETENTION: 0 after superseded or obsolete

599 CO2 345, MU1 309, ED1 161, MI1 259

Individual title purchase requisition which has been filled or found to be unfillable: RETENTION: 1 year

600 CO2 346, MU1 310, ED1 162, MI1 260

Records documenting selection of books and other library materials: RETENTION: 0 after no longer needed

601 CO2 347, MU1 311, ED1 163, MI1 261

Library material censorship and complaint records, including evaluations by staff, patrons' complaints and record of final decision: RETENTION: 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.

602 CO2 348, MU1 312, ED1 164, MI1 262

Patron's registration for use of rare, valuable or restricted non-circulating materials: RETENTION: 6 years

603

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: RETENTION: 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 156 b Attendance sheets and registration forms, when no fee is charged: RETENTION: 0 after no longer needed c All other records: RETENTION: 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.

 

MEMBER QUESTION

How long should the library retain employee records, payroll records, sales and purchase records, mortgage and loan documents, and other records

WNYLRC ATTORNEY'S RESPONSE

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."[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:

• Insurance policy requirements
• Union contracts (for personnel records)
• Grants, and other sponsored funding
• Lawyers instructing a client to retain records as part of a "litigation hold"

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[2] 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

Policy

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

-Deeds: 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."

-Archives: PERMANENT

-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.[3]

At the end of the retention period, electronic records are routinely disposed of by [insert input from your IT professional].

Archives

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."

 

 

MEMBER QUESTION

I am a Trustee on the Board of our library. I also serve as the Secretary to the Board. As such, I do the note-taking and draft the meeting minutes for every board meeting. Do I need to retain my handwritten notes, once I have transcribed them into document format? If so, how long must they be kept and where? FYI, the minutes are drafted, approved by the Board, then uploaded to the library website where they are available to the public.

Thanks for your consideration. Much appreciated.

WNYLRC ATTORNEY'S RESPONSE

This question comes to "Ask the Lawyer" from a public library.

As quasi-governmental entities, public libraries must follow a precise array of law, regulations, and rules for record-keeping.  We'll delve into that for those factors to answer this question.

What does that mean for association libraries, who can be a bit more free-wheeling in their records management?  This answer doesn't (quite) apply to you, but stick around, we'll make it worth plowing through the next few paragraphs.

Governments and "quasi-governmental"[1] entities, like public libraries, are subject to the requirements of Article 57-A of the New York "Arts and Cultural Affairs Law" ("57-A") which requires officers to "maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible."

57-A also gives the NY Commissioner of Education the right (and obligation) to set the period of retention for different types of records.  The current collection of these retention periods is the LGS-1, on which "Ask the Lawyer" has written admiringly[2] before.

The LGS-1 does have a specific section for libraries and library systems (rules #590-603, which every public library should be following), but it is silent on the topic of board meeting materials, which means that the more generic section 48, "Meeting files of governing body or board or agency, commission or committee thereof, including agendas, background materials and other records used at meetings" applies.

Rule 48 states that the retention period for "[t]emporary drafts or personal notes that were not circulated, reviewed, or used to make decisions or complete transactions" is ZERO "after no longer needed."

So: as long as the hand-written notes are considered a "temporary draft" or "personal notes" as part of the creation of the actual draft minutes (the retention of which is "PERMANENT" per Rule 47), they may be shredded after the draft minutes are typed up as described by the question.

BUT, I offer caution: if the hand-written draft minutes are used for any purpose other than to create an exact typescript version, including but not limited to interim decision-making before the next board meeting, or to inform the process of passing the official minutes, then they are transformed into something different than personal or temporary notes, and I advise they be retained together with the other permanently retained public library board meeting materials...which also makes them subject to FOIL.

Sounds complicated, right?  Below is a poem to help you remember (association libraries, the last four lines are for you, too...I told you it would be worth sticking around):

A public library's records must stay

At the library per A and C Law 57-A;

The retention of those library records is done

For a period set by the LGS-1;

And the public can demand to see

Those records by asking for a FOIL copy.

Chartered libraries of any kind

The Open Meetings Law must mind

And the docs the board will see

Must be shared with the community.[3]

In all of this, personal notes

turned into minutes per trustee votes

When no longer needed, can be disposed

...so long as notes were all they posed.

Hmm.   Maybe it's just easier to read the law and rules?  Just in case, I have put them below.

Thanks for a great question, and thank you for your service as a conscientious trustee and officer!

The law:

1. It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible; to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to cooperate with the local government’s records management officer on programs for the orderly and efficient management of records including identification and management of inactive records and identification and preservation of records of enduring value; to dispose of records in accordance with legal requirements; and to pass on to his successor records needed for the continuing conduct of business of the office. In towns, records no longer needed for the conduct of the business of the office shall be transferred to the custody of the town clerk for their safekeeping and ultimate disposal.

2. No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments records retention and disposition schedules establishing minimum legal retention periods. The issuance of such schedules shall constitute formal consent by the commissioner of education to the disposition of records that have been maintained in excess of the retention periods set forth in the schedules. Such schedules shall be reviewed and adopted by formal resolution of the governing body of a local government prior to the disposition of any records. If any law specifically provides a retention period longer than that established by the records retention and disposition schedule established herein the retention period established by such law shall govern.

The "Meetings/Hearings"  provisions  from LGS-1

47 CO2 1, MU1 1, ED1 1, MI1

1 Official minutes and hearing transcripts of governing body or board, commission or committee thereof, including all records accepted as part of minutes: RETENTION: PERMANENT

48 CO2 3, MU1 3, ED1 3, MI1

Meeting files of governing body or board or agency, commission or committee thereof, including agendas, background materials and other records used at meetings

NOTE: Appraise these records for continuing administrative or historical value prior to disposition. Agendas may have continuing administrative value and may be useful for accessing information in unindexed minutes and for indexing those minutes. Other records prepared for or used at meetings may have administrative or historical value for documenting issues discussed at the meetings and referenced in the minutes.

See item no. 47, above, for records which are accepted as part of the minutes.

a Records not accepted as part of the minutes, including agendas, background materials and other records used at meetings: RETENTION: 1 year

b Temporary drafts or personal notes that were not circulated, reviewed, or used to make decisions or complete transactions: RETENTION: 0 after no longer needed

MEMBER QUESTION

In a local school district, multiple books have been challenged recently. This week, the School Board received an email from a community member referencing record keeping for library materials and electronic records retention. The district Superintendent wants to make sure that the district is keeping the right kind of library records, and that they are keeping them for the legal amount of time. Attached are two documents to review. In the first document titled District Records, under #15, it advised that districts should keep a list of book lists and school library reports. With this, should the district have kept a list of all books in their libraries in any given year?

WNYLRC ATTORNEY'S RESPONSE

In speaking to different libraries about being prepared for book challenges, I have repeatedly stressed one very important element: have your policies ready.

This question shows the depth of consideration that goes into that simple requirement.

In this case, that "depth" is found in the rocky chasm of the LGS-1, New York's end-all, be-all rules for public document management.  Need to know how long to keep records for a bingo game authorized by a village?^[1]  Or how long to keep a record of exhumation?^[2]  Or how long we hang onto bridge inspection records?^[3] It's all in the LGS-1.

The documents the member references are sections of the LGS-1.

They look like this:

and

Looking at these requirements, the member's question is: "[S]hould the district have kept a list of all books in their libraries in any given year?"

The answer is: MAYBE, but not DEFINITELY.

Here is why:

The first section referenced by the member, at first blush, looks like it requires the retention of "book lists" for six years.  But examining that precise section, you will see the requirement is limited to records submitted prior to the "consolidation of school districts." 

So, outside of a district consolidation, section LGS-1 15, does not require compiling a list of books.

The next sections, LGS-1 598 and 599, refer to a school district maintaining records related to a "Catalog of holdings" and "Individual title purchase requisition," respectively.

We'll tackle 598 first.

598 requires that a "Manuscript or published catalog" of "holdings" must be retained "permanently."  It then requires that a "Continuously updated catalog" be retained until it is "superseded" or "obsolete."

This means that a district library's "catalog of holdings" that exists in a static form (like a print or PDF list) must be retained permanently, but a list of holdings that is ever-changing (like an ILS) is only retained until it changes form--or that form stops being useful.^[4]

In practical terms, this does mean that if the library produces a static list (in print or electronic form), it must be retained forever.  That obligation, however, does not obligate the library to create such a list in the first place.  Meaning, in other words: if the library only uses an ever-changing catalog, it doesn't need to retain any particular copy.

This brings us to 599, which requires that an "[i]ndividual title purchase requisition" (the documentation showing a school library bought a book) must be retained for one year.

Again, in practical terms: while per 598, a school library is not obligated to compile a printed list showing that "Not All Boys are Blue" is in its library's collection, per 599, it does have to retain (and produce, if not otherwise accessible through FOIL) a school’s requisition to purchase "Not All Boys are Blue" if requested.

This gets more interesting as one considers that LGS-1 600 (also seen in the purple-bordered excerpt above), regarding "Records documenting selection of books" sets no minimum retention period.  Meanwhile, LGS-1 601, regarding "Library material censorship and complaint records" mandates such records be retained for at least six years (and encourages considering saving them for much longer, which strikes me as a good idea).

The upshot of these various rules creates a regime where a district is empowered to pick and choose, to some degree, what records it wants to create...but once created, imposes a very particular set of parameters for retaining, purging, and disclosing them.  This is why my answer to the member's question must be so ambiguous.

It is also why it is very important that a district have a well-developed policy on this issue.

Below are some examples of what, depending on the records a district elects to create, a district can say in answer to the question: "I want to make sure I approve of all the books my taxes paid for this year.  Can I have a list of all the books?"

[If the library maintains a published list and wants to be friendly.] "Sure thing.  We compile and publish a list of books in our collection every year as of the first Monday of September.  Do you want the one showing all the books in one particular library, or all the books in the district?"

[If the library doesn't maintain a published list, but has a continuously updated catalog, feels friendly, and allows access to library computers.] "No, we don't publish such a list.  But we do have a continuously updated catalog you can search on this terminal."

[If the library doesn't maintain a published list, has a continuously updated catalog, doesn't allow just anybody access to its computers, but feels somewhat helpful.] "No, we don't publish such a list.  But we do have a continuously updated catalog you can request a copy of."

[If the library doesn't maintain a published list, doesn't allow access to computers, and doesn't feel helpful, but does feel puckish.] "No, but if requested, we can supply you with a copy of every book requisitioned last year."^[5]

[If the library doesn't maintain a published list, and doesn't want to offer alternative ways to share the information.] "No, we don't have that."

[If the library doesn't maintain a published list, and is okay risking a spat.]

"No."

Optional rider to all the above answers: "Here is a copy of our FOIL policy so you know the process for requesting our public records through our FOIL officer, and can be aware of our copying charges and the process for requesting electronic copies."

Now, as any veteran of public relations battles over school district policy knows, there's a time to be helpful, and there's a time to say "no."  I am not endorsing any particular answer, but based on a district's policy, it should know what records it keeps (and doesn't keep), and how people can access them.

From my perspective, if there isn't a need to compile information, it shouldn't be compiled.  Further, FOIL does not create the obligation to compile information if it is not already compiled.  On the other hand, waffling and appearing to dodge the question when concerned citizens are on the hunt for "objectionable material" might not be the best way to fight the battle for intellectual freedom.  "We don't have a list but we have a continuously updated database" strikes me as a glove-slap; it invites a fight...but nevertheless, if accurate, might be a perfectly valid response.

From my high horse over here in law-law land, a district should proceed from the presumption that if a book is in a school library's catalog, it belongs there; this is the stance that supports intellectual freedom, while also setting a good example for the students (but I am not the one who has to deal with angry community members storming a school board meeting).

Regardless of my personal thoughts on the diplomatic aspects of this issue, from the perspective of intellectual freedom, information access, education law, the LGS-1, and the First Amendment, here is what's important: have a sound policy governing 1) how library books are selected; 2) how library books are cataloged;^[6] 3) how library books are challenged; and 4) how library books are removed, and follow that policy.

If, as part of that policy, a district has the desire and capacity to create an annual (or decennial, or whatever time span it wants) list of books in the school library catalog, great, but if such a list is created, it must be kept forever.  And if the district only uses a continuously updated library catalog, it should be clear from the policy who can access it, and how (at the school?  By appointment?  Remotely?).  And all of this turns on the district having a designated FOIL officer and process for timely responding to, assessing, and meeting FOIL requests.

So, there is my answer...and I know it rests on a dangerous triangle of law, practicality, diplomacy.   This stuff isn't easy.

I wish you a clear head, a steady heart, and a ready wit as you face whatever challenges come your way.

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.