RAQs: Recently Asked Questions

Topic: Employee Rights - 12/12/2019
Hi! What is the order of due process in a local library for employees? Which laws/policies appl...
Posted: Thursday, December 12, 2019 Permalink

MEMBER QUESTION

Hi!

What is the order of due process in a local library for employees?
Which laws/policies apply most in advocating employee rights?

  • Federal Employee Law
  • NYS Civil Service Law
  • County Civil Service Law/policy
  • NYS Public Library Law
  • Individual Library policies and contracts

Please let me know.

Thank you!

WNYLRC ATTORNEY'S RESPONSE

Wow, what a great question: what is the hierarchy of laws impacting the employment conditions of librarians?

The laws impacting the employment conditions of librarians are a complex logic tree with many branches.  When I consider the amount of laws, and the permutations….

Just…wow.[1]

For a lawyer practicing in both library and employment law, this question is the equivalent of someone handing a librarian a huge box of materials while asking: “Can you catalog these, then use them in a ‘Library Employee Rights’ display for the lobby?”

I can’t wait to curate the display, but first, let’s take a look at what’s in the “library employment law” box.  We’ll take them in rough order of hierarchy/priority.

The first item in the box is a huge, grubby tome that lawyers, even younger ones, use every day (if they are at a firm owned by a crusty Gen X lawyer[2]): Black’s Law Dictionary

A legal dictionary is in the collection because, although no lawyer would ever litigate an employment law matter based solely on a dictionary definition, legal concerns often turn on precise word meaning, and employment law certainly does.  In fact, there are at least three different legal definitions of  the word “employee” that apply to library-related issues.[3]

The second is not a book, but a collection of CD’s containing a huge database.  What’s on the database?  It’s the “common law”—a body of case law and rulings that can influence how black-letter laws[4] work together.  The “common law” is a body of shared language and precedent that can influence (sometimes heavily) legal decisions.  It is often the glue that holds legal decisions together.

And now, for a few volumes that are far less esoteric:

The Fair Labor Standards Act (“FLSA”): Among many other things, this is the law governing who must be paid overtime when they work more than 40 hours in the standard work-week.

Federal Civil Rights Laws: This is a compendium of laws governing rights protecting people under the jurisdiction of the USA from discrimination.  It includes the Civil Rights Act and the Americans With Disabilities Act. 

The New York Human Rights Law: This is a compendium of laws governing rights protecting people from discrimination in New York.  It includes protections on the basis of religion, sexual orientation, gender expression, prior conviction and pre-disposing genetic characteristics (among many other things).  It is why your library recently adopted a sexual harassment report form.[5]

New York Labor Law & Regulations: Among many other things, this is the law that mandates one unpaid break every six hours for certain hourly employees.

New York Civil Service Law: Among many other things, this is the law governing the hiring, advancement, compensation scale, discipline, and termination of most public library employees.

Federal Laws Governing Benefits: This is a compendium of laws governing employee benefits in the USA.  It includes a law called ERISA, and the Affordable Care Act.

The New York Laws Governing Employee Benefits and Protections: This is a compendium of laws controlling unemployment insurance, workers’ compensation for work-related injury, insurance for non-work-related injury, retirement benefits, and most recently, the Paid Family Medical Leave Act.

New York Education Law & Regulations/New York Not-for-Profit Corporation Law: These laws are combined in one handy volume to create the rights and duties of a chartered library, and its governing board (who, within a framework of laws, are the ultimate decision-makers regarding employment at their library).

Local Civil Service Rules:  Based on New York’s “Municipal Home Rule Law,” many of the details of Civil Service-controlled employment practices can change from county to county (and municipality to municipality).

Local laws: Some municipalities adopt local law to create further protections for employees.  These laws cannot be contrary to state, federal, and county law, but can expand employee rights further.

Random Authorities:  This book is a vivid graphic novel depicting numerous opinions by the Equal Employment Opportunity Commission (“EEOC”), the U.S. Department of Justice, the National Labor Relations Board, the New York State Comptroller, the New York Attorney General, the New York Committee on Open Government, and the New York Commissioner of Education, regarding matters impacting library employees.  One delightful example of this is an intricate decision by the State Comptroller about how much money could be spent on a party for volunteers.[6]

And finally, some really cool, custom works are in the box… 

A Choose-Your-Own-Adventure novel called A Journey Through Your Charter and Bylaws.

Why is this a choose-your-own-adventure?  Because while neither a charter nor bylaws can change the above-listed law, the “type” of library an institution is chartered as will impact if and how those laws apply.  And within the framework set by those laws and their application to your library, it is the board—whose composition and functions are controlled by the charter and bylaws—that is the ultimate party responsible for hiring and firing of employees, which sets the stage for all other employment-related actions.

A collection of scrolls labelled “Contracts.”  This could be as simple as a contract with an Executive Director or Book-keeper, or as complex as a “Collective Bargaining Agreement” with an employee union. It is important to note that while a contract can create a great many additional rights, it cannot be contrary to the Charter and Bylaws, nor any of the laws listed above (UNLESS there is not an “exception” in the law, allowing it to be altered by the terms of a collective bargaining agreement, and if your library type means they apply).

And finally, the most valuable part of the collection: a weird device, rather like a flour sifter, that says in big, bronze letters on its handle “IT DEPENDS.”  What does this screen do?

It tells you which laws apply to which libraries, in which order of priority, under which circumstances.[7]  When applied properly, this allows you to create…

Your Institution’s Employee Policies, drafted to comply with the law as it applies to your library, and to support your unique charter and mission.  Such policies should be routinely re-assessed to ensure continued legal compliance and support for your library’s key objectives (like attracting, retaining, and developing the best staff possible).

In other words—and in direct response to part of the member’s question—the purpose of policy is to articulate and apply the law as it governs your library.  No policy should ever contain a provision contrary to a governing law or regulation.  This is why policy must be routinely assessed, revised, and updated.

And that’s the collection.

At this point, I imagine the member who asked this question might be feeling: Whoa, information overload!

Let me show you my display, here….

You probably thought it was going to be a tree, right?  Nope.  It’s a finely balanced array of media stacked to look like librarian assembling a sculpture of…a librarian. 

Why is that?

No other entity created by law(s) has the type of support, mandates, restrictions, and—yes—latitude under the law that libraries do.  Yes, libraries operate with a strict framework created by the laws and regulations listed above,[8] and operate within exacting mandates…but within that framework, libraries have almost limitless discretion with policies.  That is how they function and evolve as reflections of their communities. 

That said, certain things fundamental, and cannot be trumped by much.  Here are a few (with links to the laws that back them up):

 https://www.ny.gov/combating-sexual-harassment-workplace/workers

  • In New York, public library employees serve at the pleasure of their boards, NOT their sponsoring municipality;

https://www.nysenate.gov/legislation/laws/NPC/202

  • In New York, public library employees may be indemnified[9] by their governing boards;

https://www.osc.state.ny.us/legal/2001/op2001-12.htm

  • In New York, association library employees may be indemnified by their governing boards;

https://www.nysenate.gov/legislation/laws/NPC/202

  • And…while it can be rather a pain to work within, public library employees are protected by the New York Civil Service law:

https://www.nyla.org/a-librarians-guide-to-civil-service-in-nys-2018/[10]

 

How does this play out?

Let’s take breaktimes as an example.

In New York, employees have to take a break every six hours.  It’s the law.  In my office, when a paralegal gets so into the project they don’t want to stop, I have to order them[11] to take a break.  (at which point they do, because otherwise…irony).

Now, how I choose to support my employees as they take their break is up to me, and may become a matter of policy.  Do I supply a break room?  Do I have a fridge and a policy/procedure for keeping the break room clean and the fridge free of mold?  All of those things are discretionary—and to govern the details, I might have a policy that goes beyond the minimum.  But here is where things get complicated: If an employee doesn’t follow the policy, I may need to follow rules set by Civil Service to discipline them. But if I am selectively enforcing the policy in a discriminatory way, state or federal civil rights law could govern. Or perhaps the employee will first file a union grievance, which we’ll have to arbitrate…

And that is the hierarchy of employment law.  It’s not really a heirarchy…it’s more of a fractal pattern.  The good news is, library leadership gets some say in the pattern.

What shape does your library pick?

 



[1] If I were the sort to write via emoji, I would be using the icon for “Mind.  Blown.”

[2] That’s me.

[3] There is a definition for purposes of liability, a definition for purposes of compensation, and a definition for purposes of copyright ownership of employee work product.  And yes, they are all slightly different.

[4] “Black letter” laws are those “embodied in…statutes.”  Thanks, Black’s Law Dictionary! (Centennial Edition)

[5] Due to changes in 2018.

[6] This opinion is here: https://www.osc.state.ny.us/legal/1990/legalop/op90-63.htm.  The final decision?  “A public library may sponsor a recognition dinner for volunteer library workers, but may not sponsor a party for the senior citizens of the sponsor municipality or school district..

[7] This “screen” is either a lawyer, an HR professional, a civil service professional, or a library system or council working with one of those to support your unique operations.

[8] And more….so many, many more…

[9] In layman’s terms, this means you are protected in the event you are sued for just doing your job.

[10] I was lucky enough to attend an excellent presentation by authors of this Guide at the 2019 NYLA Conference. 

[11] My team is great!  Every employer should have this problem.

 

Tags: Laws, Management, Policy, Employee Rights, Labor

Topic: ResearchGate, PDFs, and Copyright - 12/12/2019
ResearchGate is often a place individuals will go to snag PDFs which are typically provided b...
Posted: Thursday, December 12, 2019 Permalink

MEMBER QUESTION

ResearchGate is often a place individuals will go to snag PDFs which are typically provided by authors, not publishers. It refers to itself as a community and network for researchers to share and discuss their research with others from around the globe. ResearchGate explicitly states that they are not liable for any copyright infringement, and that the responsibility rests with the individual; it is entirely up to the individual to either post the PDF to be downloaded freely, or to send the PDF to individuals upon request.

I have multiple questions surrounding the use of ResearchGate. Number one, should libraries be directing individuals to ResearchGate to ask authors for copies of their articles? Number two, should our document delivery service be providing copies of PDFs from ResearchGate to our library patrons? I am personally very hesitant to refer anyone to ResearchGate as I find most faculty researchers are not aware of who truly holds the copyright to their published articles. Thank you!

WNYLRC ATTORNEY'S RESPONSE

I first heard about “ResearchGate” at a copyright training I was conducting for librarians. 

There I was, holding forth about Section 108 and Fair Use, when out of the blue, an academic librarian asked me: “What do you think of Researchgate?”[1]

This question triggered my number one rule for lawyering: never assume you know an answer; always do your research.  So even though my brain figured that “Researchgate” was a new scandal involving falsification of data,[2] I instead replied: “I have to admit, I am not familiar with that.” 

Good thing I followed rule number one!

Since that time, and in response to this question, I have had a chance to visit ResearchGate’s “About” page and their “Terms of Use” (for academics and students) page.  And I have developed some thoughts.

But first, here’s what I have learned:

Notably, as the member points out, ResearchGate’s “Terms” for submitters reinforces the rights of authors:

As a member, when you post full-text articles or supplementary materials on ResearchGate, you do not transfer or assign copyright to us. Rather, you make the content available to the public through ResearchGate.

…about encourages users to respect the rights of others:

If you choose to privately archive or publicly post content, we encourage you to first confirm your rights before doing so. … As we do not have any information about rights you may hold, or any license terms or other restrictions which might apply to such content, we necessarily rely on you to understand your rights and act accordingly. 

ResearchGate’s relationship with users is also governed by clauses on “Liability” and “Indemnification”—with ResearchGate attempting to pass all liability for a copyright infringement onto the users who supply content.

And finally, as also shown in their policies, ResearchGate also takes advantage of the “notice and takedown” provisions under the Digital Millennium Copyright Act to assure itself “safe harbor,” in the event a user posts infringing content.[3]

What I found at ResearchGate.com was what looks like a thorough attempt to dot all the “i”s and cross all the “t”s to respect intellectual property.  They probably have a very good lawyer.

But as I said, “always do your research,” so in addition to visiting their site, I also visited PACER to see if ResearchGate is being sued by anyone for copyright infringement.  And boy, are they ever.

ResearchGate GmbH (its corporate name in Germany, where it appears to be based) is being sued by Elsevier, Inc., Elsevier Ltd., Elsevier B.V. and the American Chemical Society (“ACS”).[4]  The basis for the suit, as set forth in paragraph “three” of the plaintiff’s complaint, is the ResearchGate’s use of “Published Journal Articles” (which the suit calls “PJA”s):

This lawsuit focuses on ResearchGate’s intentional misconduct vis-à-vis its online

file-sharing / download service, where the dissemination of unauthorized copies of PJAs

constitutes an enormous infringement of the copyrights owned by ACS, Elsevier and other

journal publishers. The lawsuit is not about researchers and scientists collaborating; asking and

answering questions; promoting themselves, their projects, or their findings; or sharing research

findings, raw data, or pre-prints of articles.

And, just in case that doesn’t sound too bad, here’s the next paragraph:

ResearchGate’s infringing activity is no accident. Infringing copies of PJAs are a

cornerstone to ResearchGate’s growth strategy. ResearchGate deliberately utilizes the infringing

copies to grow the traffic to its website, its base of registered users, its digital content, and its

revenues and investment from venture capital. ResearchGate knows that the PJAs at issue

cannot be lawfully uploaded to and downloaded from the RG Website. Nevertheless, in violation of the rights of ACS, Elsevier, and others, ResearchGate uploads infringing copies of

PJAs and encourages and induces others to do so. ResearchGate finds copies of the PJAs on the

Internet and uploads them to computer servers it owns or controls. In addition, ResearchGate

lures others into uploading copies of the PJAs, including by directly asking them to do so,

encouraging use of a “request full-text” feature, and misleadingly promoting the concept of “selfarchiving.”[sic]  ResearchGate is well aware that, as a result, it has turned the RG Website into a focal point for massive copyright infringement.[5]

Yikes, that sounds dire, right?  And very akin to the member’s concerns.

So, with all that established, I’ll share my thoughts, and address the member’s questions.

Number one, should libraries be directing individuals to ResearchGate to ask authors for copies of their articles? Number two, should our document delivery service be providing copies of PDFs from ResearchGate to our library patrons?

Questions like this may be informed by law (and risk management), but must always start with ethics. 

The ALA Statement of Ethics[6] has very clear language regarding intellectual property: We respect intellectual property rights and advocate balance between the interests of information users and rights holders.

When it comes to a source like ResearchGate—ostensibly trying to operate within the bounds of the law, but alleged to have a seamier side—the ALA’s further musings[7] on this statement on copyright are also instructive:

 Library workers are increasingly critical resources for copyright information in their communities. Consequently, they should be informed about copyright developments and maintain current awareness of all copyright issues. Library workers should develop a solid understanding of the law, its purpose, and the details relevant to library activities. This includes the ability to read, understand, and analyze various copyright scenarios, including fair use and other copyright limitations, using both good judgment and risk mitigation practices.

Library workers should use these skills to identify their rights and the rights of their users. Further, they should be ready to perform outreach surrounding copyright topics and refer users with questions pertaining to copyright to reliable resources. However, library workers should avoid providing legal advice. They may provide information about the law and copyright, but should recommend that patrons consult an attorney for legal advice. [emphasis added]

I can’t answer the member’s questions for any particular library. But based on the ALA Statement of Ethics, its further comments on copyright, and risk management principles drawn from the law, I can suggest a methodology for a library to apply when asking them.

First, if a librarian, using their own observations, and applying ALA ethics, believes a source to be dubious,  it is clear that they are ethically obligated to “us[e] both good judgment and risk mitigation practices” about “relevant to library activities,” and to work with decision-makers at their institution to develop a clear position on that source.

This is not a simple nor easy exercise.  Further (and frustratingly, for some) it may vary from institution to institution.  Some libraries dance on the cutting edge of copyright.  Others err on the side of caution.  The decision to do either should be based on an informed assessment that considers the library’s mission, insurance, tolerance of risk, and its comfort level with the status quo.  

The member is already applying personal experience and modeling this balancing.  Remember the last part of the question: I am personally very hesitant to refer anyone to ResearchGate, as I find most faculty researchers are not aware of who truly holds the copyright to their published articles.

To that type of informed concern, there are two considerations I would add for libraries making this type of determination:

1) Under Section 108 of the Copyright Act, a library’s exemption from infringement can turn on their lack of awareness of a scheme to make exploitive commercial copies.  Your library’s insurance may also deny coverage if a library is knowingly referring users to an infringer.  So, if your institution is aware that a source is an infringer (which is different from suspecting a source is an infringer), that is a factor to balance.

2) On the flip side, libraries should not be willing (and generally have not been willing) to roll over to support the unchecked dominance of traditional commercial publishers.  Without pushback, rates will continue to go up, while terms will get more onerous.   But there is a difference between thoughtful pushback (like the current, organized fight against the McMillan Embargo[8]), and systematic copyright infringement (like Napster).  

Questions like this one show that librarians are thinking about the difference.  

Thanks for a great question.  It will be interesting to see if the case against ResearchGate goes the distance, and to see libraries decide where they stand.



[1] When this question first put the name in my brain, the “g” was lowercase.  

[2] For over ten years, I was in-house counsel at a university, and had a reason to read “The Chronicle of Higher Education,” every week.  Every year the Chronicle reported on one research-based scandal after another; it’s a miracle I didn’t hear the term “ResearchGate” before this!

[3] As of December 8, 2019, you can see this on ResearchGate’s Intellectual Property Policy.

[4] Am. Chem. Soc'y v. ResearchGate GmbH, 2019 U.S. Dist. LEXIS 98372, 2019 WL 2450976.

[5] Yes, this is one monster paragraph within the law suit. 

[6] As of December 8, 2019, found at http://www.ala.org/tools/ethics

 

Tags: Copyright, DMCA, Ethics, Fair Use, Laws, Photocopies

Topic: NYS Shield Act and Libraries - 12/5/2019
With the NYS Shield Act taking effect in March 2020 what changes or precautions should l...
Posted: Thursday, December 5, 2019 Permalink

MEMBER QUESTION

With the NYS Shield Act taking effect in March 2020 what changes or precautions should libraries be thinking about to comply with the law and minimize the risk of data breaches?

WNYLRC ATTORNEY'S RESPONSE

There are many technical aspects to this question, and this answer will explore many of them.  But first, I invite each reader to sit back, close their eyes, and envision the types of information their library takes in, maintains, or manages digitally.

Name…address…phone number…e-mail…library card number and account information.  Perhaps a driver’s license, or other photo ID.  Credit card information? Job applicant information, payroll, and employee data….  Donor information.  Survey responses.  Licensed lists.  Content related to digitization.   And (of course) every digital record related to a library’s core function: providing information access.

Now envision what someone with less-than-ethical intentions could do if they accessed or appropriated that digital information:

Disclose confidential library records…sell active credit card information on the dark web...use the information to design a very convincing phishing[1] scheme….

And I bet you can easily think of more. 

Scary?  You bet it is.  This is the type of risk-management New York’s lawmakers had in mind when they enacted the SHIELD Act[2], a far-reaching amendment to the state’s laws governing data security.

And as the member points out, the changes will impact your library.

So, what does this law require?

A lot. 

And here is where we get technical.  Because the law will hit different types of institutions differently, this “Ask the Lawyer” can’t give you a word-by-word recital of the precise obligations the SHIELD Act will impose on your institution.   But it can give you a plain-language DIAGNOSTIC FORM to help your board, your director, and your (internal or external) IT team a tool to start assessing your obligations.

So here, without further ado, is the ‘ASK THE LAWYER’ SHIELD ACT DIAGNOSTIC FORM.  If you have a buddy to fill this in with, I suggest you invite them to help, this is not the type of exercise to do alone.[3]

 

 

Diagnostic question

 

[NOTE: Any member of a library council in the State of NY is licensed to make a copy of this form for diagnostic purposes. However, THIS IS NOT INDIVIDUALIZED LEGAL ADVICE and no legal conclusion about the obligations of your institution should be made without the input of a lawyer.   That said, filling this out will help that lawyer help you a lot faster.]

Your Answer

 

Significance

 

1.

 

Does your library collect electronic versions of “personal information” as defined by SHIELD?

 

Here is the definition of “personal information”:

"Personal information" shall mean any information concerning a natural person which, because of name, number, personal mark, or other identifier, can be used to identify such natural person.

 

 

 

 

If your library collects “Personal information” as defined by SHIELD, it may be subject to SHIELD’s requirements. 

 

So, if you marked “yes,” keep going!

 

 

 

2.

 

Does your library’s network or equipment collect electronic versions of “private information” as defined by SHIELD?

 

Here is the type of data that, when combined with “personal information” becomes “private information” protected under SHIELD:

(1) social security number;

(2) driver's license number or non-driver identification card number;

(3) account number, credit or debit card number, in combination with any required security code, access code, [or] password or other information that would permit access to an individual's financial account;

(4) account number, credit or debit card number, if circumstances exist wherein such number could be used to access an individual's financial account without additional identifying information, security code, access code, or password; or

(5) biometric information, meaning data generated by electronic measurements of an individual's unique physical characteristics, such as a fingerprint, voice print, retina or iris image, or other unique physical

representation or digital representation of biometric data which are used to authenticate or ascertain the individual's identity; or

(ii) a user name or e-mail address in combination with a password or security question and answer that would permit access to an online account.

 

 

 

If your library collects “private information” as defined by SHIELD, it may be subject to SHIELD’s requirements. 

 

So if you marked “yes,” keep going!

 

 

 

 

 

 

 

 

 

 

 

(NOTE: if any libraries out there are using biometric records like retina scans in place of library cards, please let me know, because that is Bladerunner-level cool).

 

 

3.

 

Does the “private information” your library collects include information from residents of New York?[4]

 

 

 

If your library collects “private information” relating to New Yorkers, it may be subject to SHIELD’s requirements. 

 

So if you marked “yes,” keep going!

 

 

4.

 

Is your library part of a larger institution such as a school, college, university, museum, religious institution, or hospital?

 

 

 

If the answer is “yes,” then STOP.

 

Your work on SHIELD ACT compliance should be coordinated with your full entity, who should be sensitive to not only your library’s obligations under CPLR 4509, but your institution’s obligations under SHIELD and other data security laws like FERPA and HIPAA.[5]

 

Don’t go rogue!

 

 

5.

 

Does your institution contract with another entity, like a library system, to maintain private information? 

 

EXAMPLE: When a person applies for a library card, does the personal information supplied stay on the local library’s network, or does it simply flow through a terminal at the local library to a system’s network? This is a very common arrangement in NY.

 

 

If “yes” list and attach the contracts, along with the information maintained by the contractor.

 

This question applies to both parties.

 

If the answer is “yes,” gather the contract(s) governing the arrangement(s), and be ready to check the contracts for assurance of SHIELD compliance. This includes assurance of “reasonable security requirements,” and a clause governing data breach notification.

 

 

6.

 

Now, aside from information maintained on another entity’s network as listed in #5 above, (library system, payroll service, credit card service provider, etc.) does your institution maintain any computer system with private information?

 

 

 

 

 

 

If yes, list the information gathered and where it is maintained:

 

 

 

 

 

If the answer is “no,” you only have to follow step #7, below.

 

If the answer is “yes,” make an appointment with your IT team, and be ready to do steps #7 through #15, too.

 

7.

 

Contract compliance check:

 

If you answered “yes” to #5, above, the contracts governing that relationship would be clear about SHIELD Act compliance, including the notification procedures for data breach.

 

 

Who is the person at your institution who will do this work with your contractors?

 

 

 

This is a smart step because contract vendors must meet this standard:

Any person or business which maintains computerized data which includes private information which such person or business does not own shall notify the owner or licensee of the information of any breach of the security of the system immediately following discovery, if the private information was, or is reasonably believed to have been, accessed or acquired by a person without valid authorization.

 

 

8.

 

Okay, so it looks like my institution has to comply with the SHIELD Act.  What does that mean?

 

Well, firstly:

Any person or business which conducts business in New York state, and which owns or licenses computerized data which includes private information shall disclose any breach of the security of the system following discovery or notification of the breach in the security of the system to any resident of New York state whose private information was, or is reasonably believed to have been, accessed or acquired by a person without valid authorization.

 

So, does your institution have a policy for data breach notification?

 

 

 

Your institution may already have one! If so, it should be updated to reflect the changes in the law. 

 

If it doesn’t have one, now is a good time to get a policy in motion.

 

The law lists the steps and requirements for notification.  Among other things, those requirements  can depend on the size and nature of the breach.

 

NOTE: a data breach response is something a library should respond to with a qualified IT team and, if there are concerns about liability and compliance, a lawyer and your insurance carrier.

 

 

 

9.

 

Secondly:

 Any person or business that owns or licenses computerized data which includes private information of a resident of New York shall develop, implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of the private information including, but not limited to, disposal of data.

 

Does your institution have a policy to implement these “reasonable security requirements?”

 

 

 

Your institution may already have one. 

 

If so, it should be updated to reflect the changes in the law. 

 

If it doesn’t have one, now is a good time to get a policy in motion!

 

NOTE:  ***I have put the SHIELD Act’s criteria for a data security program next to three asterisks in the text following this form.

 

 

10.

 

Thirdly, are you a small library and feeling panicked about your security requirements?

 

Don’t worry, if you’re a “small business,” the law has a provision related to your obligations.

 

Here is the SHIELD Act’s definition of a “small business”:

"Small business" shall mean any person or business with (i) fewer than fifty employees; (ii) less than three million dollars in gross annual revenue in each of the last three fiscal years; or (iii) less than five million dollars in year-end total assets, calculated in accordance with generally accepted accounting principles.

 

So (deep breath) are you a “small business?”

 

 

If the answer is “yes,” then your “reasonable security requirements” are tempered:

…if the small business's security program contains reasonable administrative, technical and physical safeguards that are appropriate for the size and complexity of the small business, the nature and scope of the small business's activities, and the sensitivity of the personal information the small business collects from or about consumers.

 

This analysis is why having an inventory of the private information maintained by your library (or for your library) is critical; depending on the “sensitivity” (or use) of what you maintain, your plan can adjusted for what is “appropriate.”

 

 

11.

 

Just to reiterate: if you have gotten this far into the assessment diagnosis, you should probably have a “data breach” plan—even if it is just for coordinating with the entity who holds most of your data.

 

So: do you have a “Data Security and Data Breach Notification Policy and Procedure?”

 

 

 

 

As can be seen in the factors cited in the sections above, policy and procedures related to data security and data breach notification cannot be a cookie-cutter based simply on what other libraries do.  Your policy and practices will be governed by many factors.

 

 

12.

 

Are you insured for data breach and recovery?

 

 

This is a great question to ask your insurance carrier!  You should also be familiar with their notice requirements in the event of a hack or breach.

 

 

13.

 

Who at your institution is responsible for coordinating your data security program?

 

 

 

This responsibility should be confirmed in a job description and reinforced with regular training.  Working with your system or other larger supporting entity may be important, too.

 

 

14.

 

Who are your outside contractors assisting with emergency response in the event of data breach?

 

 

 

This is a good standing contract to have, and one that systems and councils might consider jointly negotiating for on behalf of members (and hopefully it is a service you never need to invoke!).

 

 

 

 

15.

 

Did you ever think, when you chose a library career, you’d get to moonlight in IT?

 

 

 

IT and libraries: two great tastes that go great together….with enough planning.

 

 

And that’s the SHIELD Act.[6]

How does a small not-for-profit tackle this expansion of data security laws?  Like anything else: inventory your status under the law, establish a goal for compliance, develop a budget and a plan, make sure the responsibility is appropriately allocated, confirm insurance coverage alignment, use all the resources at your disposal (your system, council, insurance carrier, and board members who have lived through data breach compliance) and get it done. 

In practical terms, this is also means:

  • If your library makes a practice of getting a copy of every member’s photo ID, and stores it on an Excel spreadsheet on an unsecured computer, now is a great time to stop doing that.
  • If your library maintains a list of users, credit card numbers, CCV numbers and expiration dates on your network, now is a great time for a network security assessment.
  • If your library uses an outside IT contractor, now is a great time to review their contract and make sure it provides assurance that services will be SHIELD Act-compliant.
  • If you have no idea if your institution’s insurance covers data breach (and recovery), now is a great time to ask your agent, broker, or carrier.  They might even have some resources to help you with SHIELD Act compliance.

The penalties for violation of the SHIELD Act are $5,000 per violation, in an action brought by the New York Attorney General (the law doesn’t create a private right to sue).  Other changes to the law make it easier for the AG to learn of data breaches, and to coordinate with other law enforcement agencies trying to combat them.  As we envisioned at the beginning of this article, the states for a breach are high.

But don’t worry.  No matter where your diagnosis falls, remember: libraries have been operating under heightened privacy obligations since before there were computers.  That mindset—awareness of an ethical duty to protect privacy--is the most important part of a program to minimize the risk of breaches. 

You’ve got this.

Thanks for a great question.

 

***A data security program includes the following:

 (A) reasonable administrative safeguards such as the following, in which the person or business:

(1) designates one or more employees to coordinate the security program;

(2) identifies reasonably foreseeable internal and external risks;

(3) assesses the sufficiency of safeguards in place to control the identified risks;

(4) trains and manages employees in the security program practices and procedures;

(5) selects service providers capable of maintaining appropriate safe-guards, and requires those safeguards by contract; and

(6) adjusts the security program in light of business changes or new circumstances; and

 

(B) reasonable technical safeguards such as the following, in which the person or business:

(1) assesses risks in network and software design;

(2) assesses risks in information processing, transmission and storage;

(3) detects, prevents and responds to attacks or system failures; and

(4) regularly tests and monitors the effectiveness of key controls, systems and procedures; and

 

(C) reasonable physical safeguards such as the following, in which the person or business:

(1) assesses risks of information storage and disposal;

(2) detects, prevents and responds to intrusions;

(3) protects against unauthorized access to or use of private information during or after the collection, transportation and destruction or disposal of the information; and

(4) disposes of private information within a reasonable amount of time after it is no longer needed for business purposes by erasing electronic media so that the information cannot be read or reconstructed.

 


[1] “We just need your bank information to refund your library fees since 1987 with interest!”

[2] SHIELD stands for "Stop Hacks and Improve Electronic Data Security".

[3] Why?  Well, if you’re lucky, it’s because it will be boring.  But chances are, it will be all too exciting, as you discuss the different types of data your library maintains and explore the data security obligations that come with it.  And if that happens, you’ll need one person filling in the form, while the other one looks up information—and you’ll both want someone to share your sense of urgency when it’s over.

[4] NOTE:  This is a huge change in the law, which used to only apply to businesses in New York.  Now it applies to any business that collects the information of New Yorkers; a big difference and one that impacts businesses out-of-state.

[5] Institutions subject to HIPPAA have special provisions to ensure disclosure obligations aren’t redundant.

Tags: Data, Digital Access, Laws, Policy, SHIELD Act

Topic: Libraries Banning Smoking - 11/25/2019
Is it legal for libraries to ban smoking on all of their owned property rather than 100 feet from ...
Posted: Monday, November 25, 2019 Permalink

MEMBER QUESTION

Is it legal for libraries to ban smoking on all of their owned property rather than 100 feet from entrances?

WNYLRC ATTORNEY'S RESPONSE

Not only is it legal, but it is required by law.

When the new provisions of New York’s Public Health § 1399-o first went into effect June 19, 2019, “Ask the Lawyer” got a question about enforcement, so we wrote a guide for implementation

While hopefully the “guide” has been useful (it warmed my heart to see one library[1] getting media coverage for putting up signs with wording I suggested), it might be easy to miss the actual heft of this law as we think about the details of implementation.

So here, without too much distracting commentary, is the text of the new law:

Smoking shall not be permitted and no person shall smoke within one hundred feet of the entrances, exits or outdoor areas of any public or association library as defined in subdivision two of section two hundred fifty-three of the education law; provided, however, that the provisions of this subdivision shall not apply to smoking in a residence, or within the real property boundary lines of such residential real property. [emphasis added]

Seems pretty straightforward to me…“outdoor areas” as in: the outside (with an exception for nearby residential properties).

Despite this straightforward language, since I wrote the “guide,” we have gotten some questions from members stating that their local health department claims they will only enforce compliance within 100 feet of exits and entrances.

This feedback really concerned me.  First, it is contrary to the plain language of the law.  Second (but really first), libraries are finding new ways to reach out to the public every day; this includes outdoor programming.[2]  “Outdoor areas” of the library serve the public, too.

So, inspired by this latest question, and the feedback we’ve received, I called my local Erie County Department of Health, and reached  Rob Tyler, who works on smoking enforcement. 

Rob and I had a nice chat about how sometimes the language in these laws can be open to interpretation, but this seemed pretty clear.  But then he suggested: “You should probably call the State.  They are one ones who can give guidance on the law.”

So, after thanking Rob for his time, I called the General Counsel’s Office at the New York State Department of Health, and was directed to attorney Megan Mutolo.[3]

Megan also agreed with me on the plain language of “outdoor areas.”  That said, she urged me to urge libraries to build a relationship with their county health departments so libraries are ready to enforce the new law together. 

This is good advice from Megan.  Since New York tries to encourage “municipal home rule,”[4] as much as possible is left to local officials from within a particular community.  This means that local health departments can have their own take on the new law…one that you can discuss with them while forming a meaningful alliance.[5]

So, to the “helpful tips” in the “guide,” inspired by this question, I add: Consider making a connection with your local health department, and reviewing the precise language of the new law together.  Many departments, if they have not given the new law a careful review, might overlook the requirement about “outdoor areas.”  But that language is there, and when read in context, is very clear—as is the library’s obligation to enforce this law.

Thanks for your question!

 


[1] Here’s to you, Saratoga Public Library!

[2] As but one example, the Buffalo and Erie County Public Library’s Central Library has a great new “Reading Garden” in downtown Buffalo.

[3] NOTE: I called both these people on a Friday afternoon.  Not only did I get quick answers, but they were friendly, too!  I guess you don’t go into health law unless you really care about people.

[4] My words, not Megan’s.

[5] I know they have enough on their plate already, but this might be something a library system can help with.

 

Tags: Laws, Policy, Smoking or Vaping

Topic: 501c3 Rules for Meeting Room Use - 11/6/2019
I need clarification about the IRS regulations on 501c3 organizations. A local political group ask...
Posted: Wednesday, November 6, 2019 Permalink

MEMBER QUESTION

I need clarification about the IRS regulations on 501c3 organizations. A local political group asked to use our meeting room space for a 'meet the candidates' event, a library trustee thinks this is not compliant with the "The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations" https://www.irs.gov/charities-non-profits/charitable-organizations/the-restriction-of-political-campaign-intervention-by-section-501c3-tax-exempt-organizations

I think our meeting room policy is very out of date and restricting access to the room based on content of the meeting violates 1st amendment rights, as outlined by ALA: http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/meetingrooms

No staff are involved in this event, we have not helped plan it and it was made clear on all the publicity the political group put out that the library is only the venue, we are not hosting, this is not a library program.

Thank you!

WNYLRC ATTORNEY'S RESPONSE

This answer comes with many disclaimers, because the legal parameters of room access and rental at chartered libraries in New York is variable territory.  In other words: the answer can depend on the library’s “type” (set by its charter), its fundamental rules (found in the bylaws), its IRS status (the “501 (c)(3) mentioned by the member”), its day-to-day rules (controlled by policies), its lease (not all libraries own the space they occupy), and any deed restrictions (although deed restrictions on the basis of speech would bring concerns).

That’s right: education law, not-for-profit corporation law, tax law, real property law…this question has it all!

That being said, the member’s question centers on federal tax law; specifically, the library’s 501(c)(3) status, which not only makes the library tax-exempt, but allows it to receive tax-deductible donations.  This status is an important fund-raising asset, and its many conditions (including not engaging in politics) cannot be taken lightly.

Here is what IRS Publication 557, the go-to for creating a tax-exempt entity, has to say about political activity:

If any of the activities (whether or not substantial) of your [501(c)(3)] organization consist of participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office, your organization won't qualify for tax-exempt status under section 501(c)(3). Such participation or intervention includes the publishing or distributing of statements. Whether your organization is participating or intervening, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Certain voter education activities or public forums conducted in a nonpartisan manner may not be prohibited political activity under section 501(c) (3), while other so-called voter education activities may be prohibited. [emphasis added]

Like many guides from taxing agencies, this one is superficially helpful (I put that part in bold), but upon examination, employs a disclaim that gives very little concrete guidance (I underlined that part).  So, what’s a library with a spare room to do? 

As alluded to in both the member’s question and my opening paragraph, this question doesn’t turn solely on the IRS.  Any 501(c)(3) library that rents or allows free use of space should have a robust “Facility Use Policy”[1] that considers not only IRS regulations, but safety, equal access, and operational priorities (requiring users to clean up after their meeting, to not be noisy, to respect the space).  For a library in a municipally-owned building, care must be taken to ensure use fees are applied in a way that does not violation the NYS Constitution.  And for a library that rents, the Facility Use Policy must harmonize with the lease.

But the member’s question is about 501(c)(3).  So, having established that this consideration is but one of many when giving access to or renting space, here are the three things to consider when a 501(c)(3) rents or gives access to space:

1)  Rental income needs to be a very small percentage of the library’s revenue. 

Section 501(c)(3) requires that income from renting space can’t outweigh donations and other sources of income related to the library’s tax-exempt purpose.  This is something to discuss with the library’s accountant; while rental income isn’t barred, it can bring funding ration and tax consequences that warrant the attention of a professional.

2) The use of the space can’t “inure” to the benefit of any one company or individual.

Section 501(c)(3) also requires that a qualifying organization’s resources can’t directly benefit any one person or entity more than the general public.  For example, free use of the spare room by a person conducting a stained-glass workshop with an admission fee (even a nominal one), can be considered an “inurement.” [2]

3)  As raised by the member’s trustee, the use of the space cannot violate the bar on lobbying (influencing legislation) and political activity (supporting a particular candidate for office).

And as reviewed, Section 501(c)(3) bars political activity (as further defined in the excerpt from 557, above).

“Ask the Lawyer,” has had some fairly large answers, but I don’t have space to address every occurrence that could run afoul of the bar on “political activity.” But what about renting space, on the same terms as to any other entity, to an event like the one described by the member?

Here is what the IRS has to say:[3]

Can a section 501(c)(3) organization conduct business activities with a candidate for public office?

A business activity such as selling or renting of mailing lists, the leasing of office space or the acceptance of paid political advertising may constitute prohibited political campaign activity. Some factors to consider in determining whether an organization is engaged in prohibited political activity campaign include:

a. Whether the good, service or facility is available to candidates in the same election on an equal basis,

b. Whether the good, service or facility is available only to candidates and not to the general public,

c. Whether the fees charged to candidates are at the organization’s customary and usual rates, and

 d. Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate.

When developing a Facility Use Policy, if a library is a 501(c)(3) charitable organization, and wishes to be able to rent space to (among others) political organizations for event, the above-listed factors should be built right into the policy.

Here is some sample language (some of it will sound familiar):

As a 501(c)(3) organization, the NAME library does not participate or intervene, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Therefore, the use of space in our facility by political organizations or for partisan political events is only available on the same rental terms as for the general public, and is subject to a rental fee that is charged equally to any political group or other individual or group.   NOTE: Certain voter education activities or public forums conducted in a nonpartisan manner may qualify for a fee waiver, just as do other free and open events conducted by a charitable entity for the benefit of the public.

So, what about the member’s scenario?   In the absence of a spot-on facility use policy, I suggest the following process:

  1. Using the appropriate tax guidance, the library needs to decide if this particular “Meet the Candidates” event complies with 501(c)(3); in particular, is to be a “public forum conducted in a nonpartisan manner?”  Or is it skewed to benefit one candidate over the other? 
  1. Is the sponsoring organization a charitable entity, or is there any risk that the terms for using the room would be an “inurement?”  Will donations be solicited?  Is money charged to enter?
  1. If the answer to either shows a risk of violating 501(c)(3), then the library needs to consider if it wants to follow the formula to “do business” with a candidate for public office.  This would mean charging for the use as you would any other use.

If the library’s past practices make following those three steps too blurry, it is best to take a pass on this precise event, and take the time to develop an up-to-date and thorough Facility Use Policy that considers the types of uses the library will allow, and how and when it will charge for them. There are many good models out there to draw inspiration from, but before the board passes such a policy, it would be good to have it reviewed by a lawyer (who has ready the charter, bylaws, other policies, lease, deed, and any other relevant documents).

The member’s library is fortunate to have leadership that is thinking about both the first amendment and safeguarding the organization’s tax status.  Good work.  No matter what the final decision, awareness and commitment to these values serves your community.

 



[1] The member has stated their policy might not be suited to addressing this situation.  We’ll tackle that in a bit.

[2] If this just caused a stab of panic because your library let’s an instructor host a “Yoga for Seniors” class for a minimum fee to the instructor, don’t worry, this event can happen…you just have to do it right.

 

Tags: IRS, Laws, Library Programming and Events, Meeting Room Policy, Policy, Taxes

Topic: Patron Barefoot Rights vs. Liability - 10/4/2019
We have a patron who insists that it is their right to go barefoot into any public area....
Posted: Monday, October 7, 2019 Permalink

MEMBER QUESTION

We have a patron who insists that it is their right to go barefoot into any public area. Okay, but, being a public (Association) library, aren't we still liable even if that person injures themselves on the property even if they 'say' they wouldn't sue us? Is there a law that defends their position and if so, how do we defend ourselves from litigation? Should we have them sign a waiver? Any help is greatly appreciated!

WNYLRC ATTORNEY'S RESPONSE

To answer this question, I had to switch things up, and pretend that one day, there I am, sitting in my office,[1] when a barefoot person walks up to my door and asks “I want enjoy my library privileges while barefoot, and they won’t let me.  Can they do that, or can you help me sue?[2]

If someone actually paid me for a consultation related to this conundrum,[3] here would be my diagnostic process.  For the sake of argument, let’s say that for every question I pose, the answer is, “No.”

  • Do you have a disability that requires you to be barefoot?
  • Do you hold a sincerely held religious belief that requires you to be barefoot?
  • Does this rule disproportionately impact you as a member of a protected class?
  • Are you subject to some type of judicial order that requires you to be barefoot?[4]
  • Have you observed that other patrons at the library are barefoot, while a rule against going barefoot is being selectively applied to you?

Once I got through establishing that the answer to each question was “no,” I would then likely say: “Well, I am sorry, but whether it’s public or private property, if shoes are required by the library, I see no basis for a claim.”

Of course, the law is always evolving, but right now, simply being “a person who wants to go barefoot,” is NOT a protected category in New York State.  So, whether it’s my house, McDonald’s, or the local (school, association, or public) library, the old rule “no shirt, no shoes, no service,” can still apply.

This right to impose reasonable and uniformly applied conditions for entry—like shoes, shirts, and leaving beverages at the door—is rooted in the concept of real property (ownership of land).  A person or organization that owns land can impose (with varying degrees) restrictions on how others may access it.  And unless connected to an established[5] or fundamental right—like freedom of religion—those restrictions cannot be challenged via lawsuit (although for a library governed by a board, it can be challenged and changed as a matter of policy). 

The concept of requiring certain attire in relation to property is common in New York’s laws, regulations, and case law.  Country clubs may require a formal style of clothing, while barring cleats and spikes indoors.  Children’s camps may require kids to wear shoes (with backs!).  Since this answer gave me an excuse to do the research, I even learned there is a state-imposed dress code for recently legalized MMA (Mixed Martial Arts): man must be shirtless, while women must wear tops (I can’t imagine this gender-based rule will go unchallenged for very long).[6]

Why all this commentary about the law and clothing? I’ll make it clear.  Libraries—whether they are public or private—have the right to require visitors to wear shoes, to wear clothing that covers certain portions of the body, and to check their beverages at the door. This goes hand-in-hand with the right to require that people not play loud music, not be disruptive, and not import disturbing body odor beyond a certain personal zone.[7]

It is important, however, to have a clear and uniformly enforced policy for imposing these reasonable conditions.  The minute a small child is allowed to go barefoot in the library (bad idea!), an adult can try to claim that right, too.  And extreme care should be taken to not adopt policies that can impact protected classes of people (barring head coverings, for instance), unless a lawyer has been consulted in the drafting of the policy, and staff are well-trained on the nuances of enforcement.

So, to bring it back to the member’s question: there is no need for a liability waiver, if your library simply wants to insist that people wear shoes.  On the flip(-flop) side, if a library wants to explore a “barefoot-positive” policy, more than a waiver would be needed to address the risks: a board would have to explore all the risks caused to those not wearing shoes in a place with heavy books, carts, lots of foot traffic, and many tables and chairs.  That risk assessment would consider not only the likelihood of injury, but workplace safety rules, insurance carrier requirements, and the interaction of such a policy with other institution-specific practices (particularly, how often they clean the floor).

Again, this all comes down to the requirements and needs of a particular library, on a particular piece of property, governed by a particular set of rules.  I want to stress: such factors are variable.  The “National Yoga Library,”[8] or a library based around a culture where shoes are left at the door, would have a different perspective on this issue, perhaps insisting on a no-shoe policy (there are some places where it’s shoes that are considered dangerous and unsanitary, which makes sense, when you think what they walk through).  But for most libraries in New York, where for six months of the year our floors are coated in slush and salt, and furniture design presents many a hazard for unshod feet, “shoes, please” is likely the policy of choice.  And it’s okay to insist on it.

Thanks for a great question!



[1] We have a storefront office on a busy city street, so this is actually a possibility.  There’s never a dull moment on the West Side of Buffalo.

[2] NOTE:  Before I let this person into my law firm, I would insist they put on some shoes, or I’d meet them outside.  This is because, while I may have liberal ideas about intellectual property and how to run a business, I am a fuddy-duddy about certain conventions (like civility, yielding to pedestrians, and covered feet).  Someone once called me an “innovative curmudgeon;” I took that as high praise.

[3] NOTE: I would likely not take this consultation.  I work with so many libraries, it would probably be a conflict of interest.

[4] I can’t fathom what type of restraining or protective order would require a person to not wear shoes, but in my business, I’ve learned to “never say never.”

[5] If you ever want to kill the mood at a party, ask me about the many laws that govern land use: zoning, permitting, environmental law, historic preservation, urban planning, construction, building code, municipal law, landlord-tenant, real property procedure, restricted giving….  Yep, land use law can destroy a festive mood in ten minutes or less.

[6] 19 NYCRR § 212.5 “Proper attire of contestants”

[7] If this concept sounds foreign to you, and you work in a library, my impression is that you are in a happy minority.

[8] I do a lot of yoga.  No matter what studio I am at, if I forget to leave my shoes at the door, I get a very quick “what you are doing is not cool with the universe” reminder to take them off.  In the yoga studio, bare feet are the rule, which is why most yoga places have a high budget (or offer work-trade) for floor cleaning.

Tags: Laws

Topic: Ownership of Historic Markers - 9/13/2019
Various individuals and organizations have organized historic marker/signage installations in...
Posted: Friday, September 13, 2019 Permalink

MEMBER QUESTION

Various individuals and organizations have organized historic marker/signage installations in Buffalo over the years, including the Buffalo History Museum, the Pomeroy Foundation, neighborhood organizations, etc. Sometimes one entity, an individual or nonprofit, organizes the project while another entity, a foundation or private company, underwrites it. And then a third party is involved when it comes to installing the marker, by providing permission to use either private or public land.

My question is: whose property are these markers once they are installed?

Thank you!

WNYLRC ATTORNEY'S RESPONSE

This question reminds me of a story told by writer/actress Sarah Vowell in her book, Assassination Vacation

When researching in Buffalo for the McKinley chapters, Vowell met a resident with scars caused by a childhood bike crash into a marker related to the McKinley assassination. 

I remember reading this passage and thinking (like any lawyer would): Hmm, who would be liable for that?  And of course, the answer to that liability lies partly in the question: Hmm, who owns this thing in the first place?

Unfortunately, finding the answer is not as easy as crashing your bike into a marker.

The solution starts out simply enough:  property that is “fixed” to land becomes a “fixture,” and title to it runs with the land.[1]  This is why when you buy a new house, the shed, patio, and built-in grill pit (but not the moveable grill) come with it.  And unless something provides otherwise, a historic marker on the property would belong to you, too.

The problem is, there are a lot of “somethings,” that could provide “otherwise.” 

In New York, most historic markers, if controlled by law at all, are controlled by local law (the New York State Museum maintains an excellent summary as to why on their “Historical Markers” page).  And under state law, cities, towns and villages may pass their own rules for designating, funding, and installing markers at historic sites.[2]

Meanwhile, many private organizations exist to support the site-specific preservation of history.  As the member points out, one of the major supporters of this effort is the William G. Pomeroy Foundation (“WGP”), which operated in collaboration with the New York Museum to promote projects to install signs at historic sites.  

As part of that work, WGP does not condition funding on ownership of the marker (quite the contrary)[3].  That is a typical approach.  However, other private funders could insist on some ownership and/or rules for maintenance—conditions that would be controlled by a contract, donor letter, or bequest. 

So, while a good default answer to “Who owns a marker?” is “Generally the landowner,” the only safe answer, before some research, is “It depends.” 

How can a museum, library, or other stakeholder in a local historic marker now what “it depends” on?  There is no one-size-fits-all answer, but here is a process that should help:

Step 1:  Confirm the ownership of the land the marker was installed on (who of course might not be the property’s occupant).

Step 2:  Confirm if any easement or other real property condition controls the area of the land with the marker.

Step 3:  Assess what federal state and local law(s), resolution, or permits (if any), controlled the installation. 

Step 4:  Assess what contractual obligations (grant document, donation solicitation documents, installation permission document, maintenance agreement,[4]  designer/creator document, etc), may relate to the marker.  

Step 5 (optional, but highly recommended):  Take an informal—but thorough—poll regarding who is emotionally connected to the marker, and develop a plan to consider their investment in what comes next.

I know that not all of these steps are easy to do, and that for a third party who was not involved in the installation, Step 4 might be impossible.  But it remains true: to assess the status of an historical marker, you need to know its history.   

As for Step 5…that is more of a “best practice” than a legal consideration.  Over the years, I’ve observed that before undertaking any action that could impact a monument’s physical condition, it is best to know who will write an angry letter if you disturb the patina (or worse, remove it—even if only for a temporary cleaning).  This includes not only owners, but those who feel a connection to and love for the memorial.  When in doubt, it is good to exercise diplomacy!  And who knows, they might chip in on the maintenance fund.

History, property law, and signage are all serious business. 

Thanks for a great question.

CODA

For those considering embarking on a “historic marker” journey, here is form to help make the archivists, librarians, museum directors, history buffs, and lawyers of the future grateful to you. Every project should have a one of these cataloged, and nowadays, perhaps out there in cyberspace.

The [INSERT NAME] Historical Marker Legal Abstract and Dossier

Sponsored by [INSERT NAME OF ORGANIZATION]

This form is for use when planning and generating a final file for the development, installation, and maintenance of an historic marker.  This project might not require all the items below to be completed.  When an item does not apply, enter “N/A” for “not applicable.”

 

Marker name:

Marker text:

[Attach picture of Marker]

Address of property Marker is located on:

Owner of property at time of installation:

Survey of property with Marker location noted: [attach after noting location on copy]

Attached signed copy of agreement with property owner:

          [if easement or other property right granted, attach]

Installation start date:

Installation completion date:

Insert Description of Maintenance Plan or attach copy of plan:

Is there any money held in trust or budgeted for future maintenance?  If so, please describe:

Federal law passed under:

          [Attach copy of law and, if relevant, resolution or permit]

State law passed under:

          [Attach copy of law and, if relevant, resolution or permit]

Local law passed under:

[Attach copy of law and, if relevant, resolution or permit]

Insert name and address of Funder 1 and attach copy of funding letter, grant contract, or bequest document:

Insert name and address of Funder 2 and attach copy of funding letter, grant contract, or bequest document:

Insert name and address of Funder 3 and attach copy of funding letter, grant contract, or bequest document:

Attach copy of any fundraising solicitation:

The Marker’s designer was:

[Attached contract with designer]

If there is a graphic, who owned the copyright?

The Marker’s fabricator was:

[Attached contract with designer]

Did the Organization’s board pass a resolution regarding the Marker?  If so, attach a copy.

Did the Organization enter into a collaboration agreement to organize and effect the Marker?  This would include a co-sponsorship agreement, an agreement to coordinate different aspects of the project, or an effort to coordinate property ownership, permissions, or endorsements of the project. 

If such an agreement was entered into, please attach.

Name of person filling out form:

Complete file with all attachments is located at____________________________.

 

 


[1] See the case Ritchmyer v. Morss, 5 Abb. Pr. (n.s.) 44, 1866 N.Y. Misc., among many, many others.

[2] In Buffalo, this law is § 337-33Local historic markers.

“The Common Council, by majority vote and with the consent of a private property owner who agrees to maintain the same, may cause to be erected or affixed to a structure a local historic marker that provides information regarding a site that it deems to be of local historical interest, after verifying the accuracy of the information contained on said marker with a local historian and by properly designating and appropriating funds for the creation of the same. A local historic marker shall in no way deem the site or structure it describes as a landmark, landmark site or historic district as those terms are defined in this chapter, nor shall it afford the local site or structure any additional legal protections or benefits.” [emphasis added to address maintenance aspects of question]

[3] Since this was an important aspect of the question, I gave the WGP a call.  I was fortunate to reach Christy Fuller, who was very gracious about answering a convoluted phone call from a lawyer at 9:30 on a Monday.  Christy confirmed that WGP does not condition their grants on ownership of the resulting marker. 

[4]  A maintenance plan should really be part of any historic marker installation.  The application guidance from WGP, for instance, mentions this.  But if every marker had a perfect plan, I bet I wouldn’t have gotten this question.

Tags: Laws, Historic Markers, Property

Topic: ASL Interpreting Services and Legal Recourse for Service Cancellation - 6/19/2019
Greetings. We have used an ASL Interpreting service a few times over the past few months...
Posted: Wednesday, June 19, 2019 Permalink

MEMBER QUESTION

Greetings. We have used an ASL Interpreting service a few times over the past few months and have had a situation occur twice where the patron cancelled their visit with our library 2 hours before the appointed time. The service we are using requires a 48 hour cancellation notice or else we get invoiced for full service. Is it legal to forward that charge on to the patron as they are the party who cancelled the service? If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?

WNYLRC ATTORNEY'S RESPONSE

This question has two parts, so I will re-state them for clarity:

Is it legal to forward that charge on to the patron as they are the party who cancelled the service?

Answer: no.

If this behavior becomes habitual (a request is made, the patron cancels past the 48 hour minimum time frame, we get invoiced), does the library have any recourse per ADA compliance law?

Answer: yes.

For more on both of these, see below!

This submission to “Ask the Lawyer” is a good companion to a recent query about arranging ASL interpreters, posted under the title “ADA Compliance When Screening Movies” (we’ll call it “Screening Movies”), on January 7, 2019. 

“Screening Movies” sets out some of the fundamentals of ADA compliance in the ASL interpreter realm, so as a foundation for the answer to this question, please take a look at it for some essential background.

[We’ll pause while you read “Screening Movies” and absorb the basics.]

Okay, have you got the fundamentals of ASL-related ADA compliance?  Great!  Now we’ll move to the advanced work required by these questions.

The answer to the member’s first question is “No,” because, per federal regulations[1]:

 (c) Charges. A public accommodation may not impose a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids….

While any regulation is of course open to interpretation, the United States Department of Justice—the body charged with enforcement of the ADA—offers this commentary on surcharges related to accommodations:

One medical association sought approval to impose a charge against an individual with a disability…where that person had stated he or she needed an interpreter for a scheduled appointment, the medical provider had arranged for an interpreter to appear, and then the individual requiring the interpreter did not show up for the scheduled appointment. Section 36.301(c) of the 1991 title III regulation prohibits the imposition of surcharges to cover the costs of necessary auxiliary aids and services. As such… providers cannot pass along to their patients with disabilities the cost of obtaining an interpreter, even in situations where the individual cancels his or her appointment at the last minute or is a ‘‘no-show'' for the scheduled appointment. The… provider, however, may charge for the missed appointment if all other[s] … are subject to such a charge in the same circumstances.

In other words, cancellation fees or other obligations imposed upon the general public can be equally applied to those who require ADA accommodations, but any charge specifically related to an ADA accommodation cannot. 

There are, however, several ways to address the need of Deaf and Hard-of-Hearing users to change their arrangements.

1.  Renegotiate your interpreter contract to shift away from cancellation fees

This of course requires cooperation by your ASL agency, but it is feasible. 

One approach is to use a contract that guarantees a base or “stand-by” rate that is assured to your provider (regardless of utilization). For example, for $####/year, your organization gets ### hours of services, in up to ### separate instances; this amount is paid not matter what. 

This gives both your library, and the provider, some fiscal stability as you serve the needs of your community.  It is an approach that might not work for libraries with small budgets, but collaboration with a system, council, or network can sometimes use this approach.

2.  Renegotiate your contract to tighten the cancellation window and reduce the fee

24 hours’ notice and a cancellation fee (not paying for the whole service value) is much more reasonable!

Again, this requires cooperation by our agency, and in you location, it might be a seller’s market.[2]  But it doesn’t hurt to negotiate![3]

3.   Know your budget

As described in “Screening Movies,” the obligations of libraries will vary wildly from institution to institution.  What might be “reasonable” to a large urban library might be an “undue burden” [4] for a small village library with a much smaller budget.  But no matter the size or budget, as “Screening Movies” states, every library should have an accommodations plan—and that plan should have a line in the library’s budget.

When a library has a budget for routine ADA accommodations (as opposed to one-time capital improvements or ad hoc needs of employees), it can help provide users with meaningful information about the libraries ability to provide those services.  It can also position your library to show if the cost of an accommodation truly would be an “undue burden,” (and thus not an obligation) as defined by the ADA.

For members of the Deaf and Hard-of-Hearing communities, access to information is critical, and a public library’s commitment to assuring it is vital. 

The member’s foresight and attention to stewarding this resource and making it as accessible as possible is exactly what is required.  And as can be seen, just as critical is finance committee and budget input on how to make the most of assets and budgets that help assure access and legal compliance.

 



[1] 28 C.F.R. § 36.301 “Eligibility criteria.”

 

[2] A good resource when considering an interpreter contract is here: https://rid.org/about-rid/about-interpreting/hiring-an-interpreter/.

 

[3] I don’t mean to imply that this member didn’t negotiate.  In my experience, librarians are often tough and forward-thinking hagglers.

[4] Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include –

  • (1) The nature and cost of the action needed under this part;
  • (2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action upon the operation of the site;
  • (3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
  • (4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
  • (5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

Tags: Accessibility, Laws, ADA

Topic: Can Libraries Sell Items For Revenue? - 1/16/2019
Several of the library's board members feel that it is illegal for the library to sell anythin...
Posted: Wednesday, January 16, 2019 Permalink

MEMBER QUESTION

Several of the library's board members feel that it is illegal for the library to sell anything other than books and keep the money. They believe that the library cannot "ask for money". That function (selling items, asking for money, etc) is a function of the Friends group. We (the library board) can accept donations and NYS law indicates that we (the board) can sell books and keep the money but we cannot sell anything else, even if it is a gift basket that contains mostly books.

Is this true? Does this hold true for partnering with another non profit organization nearby who has a small gift shop? Can we (library board not the Friends) supply the gift shop and receive a portion of the profits?

The Friends do raise money for the library but it is difficult to pass this duty on to the Friends because it is difficult for them to part with money for the library board's needs. Hence our desire to do things on our own.

Any help with the rules regarding selling would be greatly appreciated!

WNYLRC ATTORNEY'S RESPONSE

Before we get to the main question (can libraries sell things to raise money?), we must refine something the member mentions in passing.

Yes, under Education Law §260, libraries can dispose of and sell used books—and the library trustees can retain the money.  But since that law actually requires any library[1] disposing of used books to hold such a sale (or to offer the books for free to another not-for-profit or government agency in their area), such revenue generation is more an obligation than a fiscal liberty.  In other words: the board can sell the books and keep the money…but the power comes with strings. 

As it happens, that is the theme of this entire answer!

So, is it “illegal” for a library to sell things and retain the money?  No, it’s not, but it is complicated, and the complications warrant extreme caution before undertaking such a venture.

Let’s discuss this authority and its complexities.

The ability to sell library assets and retain the revenue is rooted in the statutory authority of library trustees. 

As stated in Education Law §260:  “Public libraries…shall be managed by trustees who shall have all the powers of trustees of other educational institutions [created by the Regents].” [2]

These “powers,” with some modifications, track the powers of boards created by New York’s Not-for-Profit Corporation Law.  Two of those powers are:

1) the acquisition and sale of real property (land, buildings, easements); and

2) the acquisition and sale of personal property (books, cars, artworks).

For libraries, these powers come with a well-recognized financial autonomy.  As the New York State Comptroller puts it:

With respect to library moneys…we note that public libraries are, for most purposes, fiscally autonomous from the sponsoring municipality (see, e.g., 1983 Opns St Comp No. 83-32, p 38). Thus, the ultimate control of the use, disposition, and expenditure of those moneys is vested in the library board of trustees even if the municipal treasurer is the custodian of library moneys. (Education Law, §§226[6], 259[1]; 1987 Opns St Comp No. 87-84, p 125; see also Opn No. 87-49, supra; Opn No. 86-54, supra). (1993 Op St Compt File #93-15)

The practical effect of this autonomy has led the Comptroller to conclude (in two separate opinions):

The trustees of a city public library may sell two bookmobiles belonging to the library at either a public or private sale and may use the proceeds of such sale in such manner as they shall deem to be in the best interests of the library. (1983 Op St Compt File #83-9) [emphasis added].

It would seem that a library board of trustees may sell an unneeded library building, title to which is properly vested in the library board, without voter approval. (1980 Op St Compt File #125)[3] [emphasis added].

So selling items—and retaining the resulting revenue—is part of a library board’s acknowledged authority. 

Of course, this authority is not unchecked. [4] As the Comptroller noted in a 1995 Opinion, the fiscal autonomy of a public library is accompanied by a requirement for absolute transparency:

…General Municipal Law, §30(3) requires that an annual report of financial transactions, including those involving private source moneys (Opn No. 88-76, supra), be made by the treasurer of each public library. The report must be certified by the officer making the same and, unless an extension of time is granted, must be filed with the Office of the State Comptroller within 60 days after the close of the library's fiscal year (General Municipal Law, §30[5]). In addition, the Education Law contains certain requirements for public libraries to report to the State Education Department (see Education Law, §§215, 263). Finally, as noted in Opn No. 88-76, supra, the town board, in determining the amount to be raised by taxes for library purposes, may take into account a library's private source funds and, therefore, may request from the library information concerning such funds. (1995 Op St Compt File #95-30)

In other words: the revenue raised by a sale can be retained, but must be spent in a manner consistent with the library’s plan of service, must adhere to relevant procurement and accounting procedures, and must be properly reported.

And there are more “strings:”

First, even when allowable, not all revenue generated by a not-for-profit entity is entitled to be free of tax.  “Unrelated business income tax” (“UBIT”) is risked when commerce unrelated to the mission of a not-for-profit generates revenue.  This is by no means a bar to a not-for-profit generating some revenue, but is a potential accounting burden, mission distraction, and cost.

Second, but perhaps most important, a library should never accustom the public to the notion of libraries independently and routinely generating revenue. 

Operational funding is the function of a library’s supporting territory and the state.  The public should never get the impression that libraries self-fund; libraries are by law a free resource serving their public, and should be funded

And as emphasized in Comptroller Opinion #95-30, above, a funding entity can consider library-generated revenue and donations when it’s time to levy taxes.  Translation: generate revenue at your own risk.

So: yes, the boards of public, school district, special legislative district, and association libraries have the power to sell things and retain the revenue, but if they do, each in its own way should be very careful to:

  • Follow its own charter and unique rules;
  • Follow all applicable laws and regulations, and know it will need to externally report the sale and use of the money;
  • Never create the impression of charging its members for services;
  • Not engage in activity that would create “UBIT” (unrelated business income tax), without specific advice from legal and tax professionals;
  • Conduct itself with fiscal transparency; and
  • Not make any revenue-generating activity a function that could risk the reduction of public funding. 

For a board seeking financial flexibility and responsiveness, these “strings” can be very limiting.   This is where budgeting should help out. 

Rather than conducting their own fund-raising, all boards should explore designating a small part of the library’s budget for board-identified needs (what the member calls “the board’s needs”), so long as those needs are consistent with the library’s plan of service and overall best interests, and the spending is appropriately documented and approved. 

For instance, a board can budget for a strategic planning retreat, an emergency fund, an external consultant, or a unique event for the library.  A library investment fund’s annual revenue can be reserved for a particular use.  The board just has to bear in mind that all these actions will be reported in their publicly disclosed library budget, and so must be easily perceived as mission-related, prudent, and proper.

This why library budgeting is both an art, and a science.[5]

Now, to the final part of the member’s question.  These issues of compliance, transparency, flexibility, and propriety are the very reasons why public libraries have “Friends” (not-for-profit corporations with missions to support a library).  

Every library board of Trustees should feel they can look to their “Friends,” for mission-aligned support.  In an ideal world, the board-approved library budget handles all operational needs, while the Friends’ budget helps out with added layers of special events, acquisitions, and programs.  And when planning for capital acquisitions and improvements, it’s a strategic all-hands-on-deck.

Of course, we don’t live in an ideal world; the operations of two separate not-for-profit entities can be tough to coordinate and align.  With that in mind, I encourage every library board to review the “Friends” section in most recent NYLA “Handbook for Library Trustees in New York State.”  This invaluable resource sets out solid tactics for cultivating and reaping the benefits of a Library/Friends relationship (something it’s easy to write about, but often hard to do).

Thank you for your question.



[1] If that library receives over $10,000.00 in state aid.

[2] We’ll use public libraries as our example, but the complexities I list impact ALL NY-chartered libraries. That said, association libraries have fewer budget-reporting and procurement-related obligations. 

[3] In New York, any sale of real property or donated assets by a not-for-profit corporation should be assessed to see if it requires approval by the New York State Attorney General.  See?  More strings.

[4] Many, many things, the first three being: the library’s unique charter, bylaws, and fiscal policies.

[5] For a great breakdown on the fundamentals of library budgeting, visit: http://www.nysl.nysed.gov/libdev/trustees/handbook/chapter11.htm

 

Tags: Laws, Budget

Topic: FERPA and NYS Privacy Laws - 1/9/2019
We have a question that relates to the intersection of New York state level library privacy laws (...
Posted: Wednesday, January 9, 2019 Permalink

MEMBER QUESTION

We have a question that relates to the intersection of New York state level library privacy laws (https://www.nysenate.gov/legislation/laws/CVP/4509) and FERPA. Our campus has a newish system that is attempting to correlate student actions and activities with academic success and retention. As such, it could be helpful to include things like visits to the writing center, appointments with academic advisors, and also library activities, such as whether a class came in for a library information literacy session or whether a student made an appointment for a library one-on-one consultation. FERPA lets institutions share academically related information within certain bounds.

We are wondering what the privacy balance is here given that the information would stay in-institution, but not in-library. Here's what we are considering doing:

1) Noting in the system which classes had a library session(s). Within the system, that would identify individual students within those classes.
2) putting an opt-in statement on our one-on-one research appointment form and if the student consents, then providing to system the student name, appointment date/time, and course that the help was for (but not anything about the specific content of the appointment).

Have we crossed any lines here? Do we even need the opt-in statement? Is this something clear or fuzzy/grey? What should we be considering that we haven't thought of? Thanks.

WNYLRC ATTORNEY'S RESPONSE

Depression.  Burn-out. Dissatisfaction. Lack of connection.  Lack of money. Lack of parking.

These are just some of the reasons students give when they choose to leave—or are forced to leave—their college or university before graduating. 

Many times, these reasons snuck up on them, although in hindsight, they could be seen: a pattern of missing classes, a downward trend in grades, maybe even dropping out of clubs and other campus activities.  And almost always, after a student leaves (often in tears) faculty and staff, coaches and friends, are left wondering: could they have done more[1]?

No matter what events led up to it, for each such incident of student “attrition,” the stakes are high: student loans, a sense of failure, the end of a career dream, and perhaps even a medical condition that went untreated while the student struggled on their own.

But what if the clues could be seen earlier?  What if the downward spiral could be stopped?

Fueled by increasing technological capabilities, many institutions of higher education are developing cross-campus, inter-sector systems to do just that: hoping to correlate the warning signs and fight student attrition through early intervention.  Using a variety of commercially available and home-programmed tech, they are tracking everything from dining hall meals, to class attendance, to visits to the gym.  These factors, as well as comments from concerned faculty or staff, are then routinely assessed and cross-checked for red flags. 

Because libraries are increasingly hosting classes and providing adjunct space for group work, it makes sense that such a system would consider tracking library usage.  After all, it can be a good sign that a student is just getting out of their dorm room!

But there is a tension within this well-meaning system.  College is where young adults journey to find their independence and privacy; promoting this maturation is part of a college or university’s purpose. Further, a net of privacy laws constrains the easy sharing of certain types of information.  But knowing the painful consequences of unchecked student struggles, many institutions work hard to find the right blend of metrics and policies to be able to intervene. 

Part of this hard work is finding the right path through that net of privacy laws.  As the member writes, the biggest privacy law of all, FERPA,[2] does allow such inter-departmental sharing,[3] and even parental notification about safety concerns, when the time is right.  It does this through both application of the law, and “FERPA waivers.”

But in New York, FERPA is not the only privacy rule to apply[4] to these information-sharing systems.  As the member states, New York’s Civil Practice Laws and Rules (the “CPLR”) §4509 (“4509”) also governs a student’s records—at least, their library records.  And it sets the bar high.

4509 is a short law where every word matters, so it is worth quoting in full here: 

Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute. [emphasis added]

As you can see, “college and university libraries,” even though they are part of larger institutions, are clearly covered by this law.

So how does 4509 impact the member’s question?

First, every library (academic or not) should have a clear sense of what it regards as “library records.”  As can be seen in the statute, the term is not precisely defined (“including but not limited to” leaves a lot of room for argument!).  Some of the obvious ones are listed in the law (circulation records, database searches, copy requests) but unnamed others could be just as vital to privacy (use of a 3-D printer, security footage covering the circulation desk, and in the member’s example, the use of research appointments).   And still others activities that use the library may or may not apply (classes conducted in the library, but not part of library programming, are arguably excludable).

To protect the records as required by law, a library must know precisely what records it must protect.  This is why, just like a public or association library, a college or university library should have a “Privacy of Library Records” policy clearly showing where it draws the line. Such a policy should also have a “subpoena response protocol,” so the library can train staff on how to receive internal and external third-party demands for information. 

And in a perfect world, this college or university “Privacy of Library Records Policy” should be known and supported by the institutional officer who oversees the library (a Provost or Academic VP).  This officer’s authority, from time to time, may be needed to ensure the policy is respected by campus safety officers, student disciplinary administration, and any other department that might want library records in service of another institutional purpose.  Librarians should not hold the 4509 lines alone!

Now, back to the member’s scenario.  Once a library knows precisely where it “draws the line” on library records, the member’s instinct is right: any access to information that falls within the institution’s definition of “library records” should be either denied, or allowed only as the law requires: via a signed consent from the user/student.

I know, just what every student wants—to fill out another form!  But these 4509 consents, just like a “FERPA Waiver,” are not only mechanisms to ensure legal compliance, they are a chance to educate students about their right to privacy. 

For instance, the consent form (I imagine it would be a digital click-through on a password-protected student account, but it could be a paper form) could say:

“The privacy of library records is protected by the law in New York State (CPLR 4509).  Your enrollment in the [SYSTEM NAME] will ask the library to disclose certain library records that are protected by this law.  As a library user at an library in New York, you have the right to keep your library records private.  A list of what [LIBRARY NAME] considers to be library records is here [link to policy].  If you would like to consent to the [NAME OF LIBRARY] sharing your library records with only [SYSTEM], please check the below consent:

[ ] I am at least 18 years of age, and consent to the limited sharing of my library records for purposes of sharing the information with the [SCHOOL NAME] [SYSTEM].  This consent does not allow sharing my library records, even within the school, for any other purpose.  No consent to share the records with external entities is give. 

I understand I will need to renew this consent every fall semester, and that I may revoke this consent at any time.

Of course, there is no legal requirement for annual renewal, but it is worth considering.  A year is a long time in the life of the typical undergraduate student, who may enter college with one set of civil rights values, and leave with another. With an annual renewal, the library not only complies with the law, but educates the student about their privacy rights on an annual basis.

So, to address the member’s final questions:

Have we crossed any lines here?

No.  By thinking about this issue during the planning phase of the system, you are making sure the lines are bright and well-defined.

Do we even need the opt-in statement?

You could call it that, but I recommend calling it a “4509 Consent.”  That would build awareness of this important law in our future leaders (and librarians).  Of course, as a lawyer, I may be biased as to how important that is (but it’s really important!).

Is this something clear or fuzzy/grey?

Not so long as your library has a clear and routinely evaluated policy defining what it regards as “library records.”  This can be tough at an integrated institution, where so much information technology crosses through different sectors.  But it should be done.

What should we be considering that we haven't thought of?  

I think you should consider buying yourself a nice cup of coffee or tea for doing your part to support a commitment to personal privacy in the United States of America and State of New York.  Unlike in the European Union, our privacy currently risks death by a thousand cuts.  Every bit of armor counts. 

Thanks.

And thank you.



[1] I was a general counsel at a university for ten years…even as the in-house lawyer, I had a few of these moments.

[2]  The “Family Education Rights Privacy Act,” a federal law often blamed for institutions not telling families about students’ struggles sooner. 

[3] If this answer were to address those bases, it would be about ten pages longer, so we’ll just assume the system in this scenario complies with all the regulations and guidance listed here: https://studentprivacy.ed.gov/audience/school-officials-post-secondary.

[4] Neither is CPLR 4509.  These systems have to navigate HIPAA, state health and mental health laws, and depending on what they do, even PCI and defamation/libel concerns.

Tags: Laws, Policy, Privacy, FERPA

Topic: ADA Compliance When Screening Movies - 1/7/2019
This question has 2 parts:  1. Public Libraries often show movies/films under the auspices...
Posted: Monday, January 7, 2019 Permalink

MEMBER QUESTION

This question has 2 parts: 

1. Public Libraries often show movies/films under the auspices of a public viewing license. A question arose regarding ADA compliance: Does the film have to be shown with closed captioning? What if closed captioning is not an option.

2. When a program is given in a public library does a deaf interpreter have to be provided for every public program? OR is there a time-frame of notification - that is to say, if the library is notified an individual expecting to attend a program requires a deaf interpreter, one must be provide. What is considered an acceptable time-frame of notification? Should this be posted - if so where is it required: Website? 

Thank you for your assistance in this matter.

WNYLRC ATTORNEY'S RESPONSE

This is an important submission, because access is the mission of every library, and access is the purpose of the ADA.  When it comes to ADA accommodations, an institution’s commitment should always be: plan for access.  

Under that principle, the answers to the member’s questions are:

  • When showing a movie, always use some type of assistive technology to ensure accessibility.
  • When having a large-scale event, always budget and plan for an ASL interpreter.
  • To ensure people can advise the library of the need for specific accommodations, have a well-developed and publicized accessibility policy.

By planning for access, an institution can never go wrong under the ADA.

But the member wants to know: when planning for access, what does the law specifically require?

As always, what the law requires can depend on a lot of different factors.

The ADA and its enabling regulations do expressly require certain entities to use captioning technology.  For example, all commercial movie theaters (except drive-ins), and all televisions built after 1993, must include captioning tech. 

But while a specific requirement for captioning has been an important asset for the Deaf and Hard of Hearing communities for decades, libraries are not on the list of legislated adopters.  Rather, just like any other place of “public accommodation,” libraries have a broader mandate; they must ensure “…no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services….”  

In other words, while captioning is not expressly required at a library, accommodations are.

The ADA doesn’t always mandate the precise means of accommodation; captioning can be but one of the many ways a library ensures a Deaf patron can access a movie.   What’s important is not the precise accommodation, but the removal of a barrier to service.  

That is why a big part of ADA compliance is not just following narrow rules (although there are plenty of those, especially when it comes to design of new buildings or the mass purchase of technology), but keeping up with and considering all available options for access. 

How can a library easily assess all those options?   A great resource for learning about the latest ADA accommodations—organized alphabetically by disability—is AskJAN.org.[1]  Although created primarily for employers (the “JAN” stands for “Job Accommodation Network”), JAN is an invaluable jumping-off place for learning the specific barriers a person with a disability may face when trying to access a service, and how a provider can remove those barriers…within that provider’s budget. 

For example, a search of “deafness” on AskJAN shows—among many other things—an array of “real-time captioning” services, together with providers and a description of how they work; this allows for comparative shopping and a more nuanced use of services.  To use the member’s movie example: if the only version of a movie a library wants to show doesn’t come with captioning, a resource like AskJAN can help find an alternative—which is what the library is required to do.

Which brings us to the heart of the member’s question: what are a library’s specific obligations?  At the start of this answer, I have used the lawyer’s go-to response: “it depends.”  But what does it depend on?

Precise obligations under the ADA vary based on institution type, size and budget.  For example, a very large municipal library with a relatively large budget and older facility should address accessibility questions through their ADA Title II-mandated self-evaluation, compliance policy, and complaint procedure; such an institution should also have to have a “responsible employee” overseeing that procedure.  This is because ADA Title II, which applies to government bodies and agencies, expressly requires a government agency to have those resources in place.[2]

On the other hand, a small association library with a small budget and a new building will fall under different sections of the law, and have somewhat different obligations.

But no matter what section of the ADA applies, the goal remains the same: to not deny service if there is an aid or adjustment that can help…unless that aid or adjustment would fundamentally alter the service, or be an “undue burden” (i.e. too expensive or difficult[3]). 

This is why every library should have a custom-tailored[4] accessibility policy guiding the library’s planning for ADA-related operations (which, at a library, are practically all operations).  While such a policy can take time to implement, and must be updated from year-to-year, in the end it is both a respecter of people and a time-saver, taking the painful guess-work and last-minute planning out of ADA compliance, and helping a library plan for access for all. 

For instance, as suggested by the member, such a policy can set a threshold for when events will automatically have an ASL interpreter, and when/how a patron can notify a library about an accommodation needed at a smaller event.  Further, it can ensure there is a budget line to pay for such accommodations, and that staff are trained and ready to answer accommodations-related questions gracefully. 

A thorough, custom policy will not only pinpoint a library’s specific ADA compliance obligations, it will make sure:

  • the library is not making ADA decisions ad hoc (a recipe for a law suit);
  • that its documentation shows compliance if a violation is claimed;
  • that ADA accessibility is built into budgeting, staffing, training, purchasing, and event planning;
  • that the institution is placing the needs of all patrons at the forefront of planning.

If a library doesn’t have such a policy, forming an ad hoc “accessibility committee” comprised of both staff and board members[5], and an attorney, should be a top priority.

How can that play out?  Let’s return to the member’s scenarios. 

With a policy guiding the way, the answers to the member’s questions would unfold in a methodical way.  The library would check the latest alternate assistive technology in the early planning stages of the event.  Consulting AskJAN, they might determine that perhaps remote CART[6] technology can help, and their planned budget line would pay for it.  If the projected attendance is under the threshold set by the policy (determined by considering the library’s area of service), there is no automatic ASL interpreter; however, the publicity and posted policy will include the ways attendees can notify the library of any necessary accommodations.

If, after the movie, there is a complaint about ADA compliance, the policy and documentation showing it has been followed will help resolve the complaint in its early stages.   But more critically, the details of the event will reduce the risk of such a complaint,  since any person who needed accommodation had access that was both well-planned and easy to arrange. 

Thank you for these important questions.

 


[1] https://askjan.org/a-to-z.cfm

[2] An example of the consequences of non-compliance can be found here: https://www.ada.gov/sacramento_ca_settle.htm.

[3] This legal language “undue burden,” causes some of the most painful moments under the ADA.  When a small, budget-challenged institution is forced to call a necessary accommodation a “burden,” no one feels good.  Sometimes the law picks the wrong work; I would have gone with “unduly disproportionate.”

[4] Although seeking inspiration from similar institutions can be a great place to start, an ADA policy is not a document to cut-and paste from another institution. 

[5] Page 62 of the 2018 “Library Trustees Handbook,” is a great resource for a library directors who need to give trustees an summary of the magnitude and importance of this issue.

[6] Communication Access Real-time Translation.

Tags: Accessibility, Laws, ADA

Topic: Next-door Neighbor/Real Estate Disputes - 12/28/2018
What laws impact a library’s next-door-neighbor relationships?  Are there best practice...
Posted: Friday, December 28, 2018 Permalink

MEMBER QUESTION

What laws impact a library’s next-door-neighbor relationships?  Are there best practices for neighbor disputes? 

WNYLRC ATTORNEY'S RESPONSE

There are few relationships that can be as rewarding—and as fraught with tension—as the relationship between neighbors.  I have seen neighbors unite to fight for preservation of their streets historic assets, and I have seen neighbors bring law suits over shrubbery.  A library is wise to cultivate a good relationship with its neighbors, just like a person would at their own home.

What laws impact a library’s relationship with its neighbors?  Most libraries exist on land[1], or within a building, so the controlling law is called “real property” law.  “Real property,” which could be land, or a building, is distinct from “personal property” (like a book) or “intellectual property” (like a logo).  Although many laws impact real property, in New York, the major one would be the “Real Property Actions & Proceedings Law” or “RPAPL.”

Also impacting real property and the relationships between neighbors are: building codes, planning regulations, zoning, permitting, contract, business, and construction-related law.  And of course, the education law, not-for-profit corporation law, and municipal law can all apply to how a library handles real property issues, while grant terms and donor restrictions can be relevant, too. 

And if the old oak in front of your library suddenly crashes into the roof of your neighbor, insurance law may come into play, as well.

Any one of these laws—and countless others—might be considered by a lawyer advising a library if there is a concern or dispute with a nearby neighbor.  But are there any general “best practices” to abide by?  Based on my experience with construction, real property, landlord-tenant, and contracts—here are some simple practices for preventing, and if necessary, addressing potential neighbor disputes.

Practice #1: Know where you stand

Every library should know precisely what property they occupy, and how they occupy it.  To do this, I recommend what I call a “binder solution.” 

For libraries that own their own property, the binder contains:

  • Deed
  • Survey
  • Assessment information (even if the building is off the tax rolls)
  • Mortgage (if you have one)
  • Any recorded easements or rights-of-way
  • Current and past insurance summaries and policies
  • Permits (if any)
  • All contracts and documents related to maintenance
  • Fixture and structure warrantees (driveway warranty, roof warranty, etc.)
  • Deferred maintenance plan

Basically, this binder should be a one-stop shop for information relating to the library’s property and the legal relationships it has with the world. 

For libraries that do not own their premises, the binder contains:

  • Lease
  • Survey or floorplan of library’s portion of building
  • Current insurance summary or policy
  • Permits (if any)
  • Warrantees for on-site physical assets your library paid for/owns (copier warranty computer system warranty, etc.)
  • All occupancy-related correspondence with landlord, including notice of defects or safety hazards

Why does all this matter?  Many real property battles are lost when owners over-state or mis-portray their rights.  Never initiate a property matter with a neighbor—even a seemingly simple one like a noise complaint—unless you know these documents will back you up (plus, having this material organized is just good stewardship).

Practice #2: Know your neighbor

This advice works on two levels.

The first level is obvious: know your neighbors.  Invite them over.  Know the names of their kids and what sports team they root for.  That type of outreach is insurance against any number of serious disputes.

The second level is a bit more covert: what’s in their “binder”?  Are they the owner?   Are they renting?  Might they be a squatter?  Basically, to the extent possible, develop a “binder solution” for them, too.  In getting to know them a bit better, you might develop some insights on the roots of your dispute.

Practice #3: Isolate this issue

In my experience, neighbor disputes can be some of the nastiest legal battles. I am no sociologist, but I imagine this is because when you fight with a neighbor, no one gets a break.  You are alongside and--in some places practically on top of—each other, 24/7.    And sometimes people are just mean…or have too many of their own problems to be able to honor another’s.

That said, if you have a potential neighbor dispute, isolate what you think the true cause might be.  Is the neighbor ranting about your ice cream social signage actually angry about fines from 1989?  Is the neighbor complaining about “those people parking” actually kind of racist? Is the dispute really about noise, or is the neighbor a narcotics peddler?

The point of this is: make sure you really know what’s up.  That way, you can keep things professional and separate if matters get contentious, and know what type of team to assemble to handle the dispute.

Which brings us to…

Practice #4: Use a professional!

Library staff are trained to help people find information, to select and categorize library acquisitions, and to operate their library according to applicable ethics and regulations.  They are NOT trained lawyers, surveyors, law enforcement, or alternative dispute mediators.

If your library is in the midst of a neighbor dispute, consider retaining a property manager, lawyer, real estate agent, or other paid expert to be the primary interface with the neighbor.  Their experience will bring a better result, and the distance they lend the situation may de-personalize it and save your library staff time and stress.

Practice #5: Pick your battles!

Neighbor disputes should only be entered into if they can be won decisively, quickly, and in a way that aligns with your mission.  For a community library, that means identifying an overall strategy before you start, and using only tactics that you can publicly defend.

It would be impossible to write an essay on this (although a book might be fun), but here is a chart of some typical scenarios, and how to pick your battles:

Your Library

Your Neighbor

The Dispute

The Law

Fight the Battle?

Owns its property, and just put a new skylight in.

 

Is a long-term renter. 

With the new skylight in, the ska music they have been blasting since 1987 can now be heard in the periodical section.

Could be in violation of a noise ordinance.

Could be a violation of their lease. 

Best to first gently and informally raise the issue with their landlord; if you’re in a small town, make sure you know all the players.  This could be a diplomatic (and loud) nightmare.

 

 

Rents its property, and has had the same lease since 1996.

 

Owns their property across the street.

 

 

After getting all the proper permits, your neighbor excavated for a new building and hit a natural spring, causing flooding in your basement and ruining a significant array books.

 

So much!  This would call for an immediate and very well-organized response.  But even before you call your lawyer, call your landlord and your insurance carrier.

 

You’d have to pick which battle.  Moving to a new location might be more mission-aligned than staying in a potentially damaged and moldy structure.

 

Is a public library that has occupied the second floor of the Town Hall 1934, but there’s no lease and no one has really questioned the arrangement.

 

Is the Town Historical Society, who have been in the basement of the Town Hall since 1974.

 

The Historical Society has, without asking, recently taken over your community reading room with a display case of genealogical charts. The room was recently redecorated with a grant that requires the room be accessible to all.

 

 

The only entity with clear rights here might be

the donor!

 

Ugh.  This is the type of battle that can get ugly, quickly.  Hopefully after you assess your position with a professinoal, some diplomacy and living up to any contractual obligations can save the day.

 

Is buying a historic property[2] to rehab and move into.

 

 

Owns the house next door.

 

In surveying the property, you find out that 5 years ago, your neighbor built their fence over two feet onto your new land.

 

This could involve looking at the survey, searching for easements (permission to use your property), and making an inquiry of the person you bought the property from.

 

You have to address it, since leaving the fence there without protest could result in the property eventually becoming the neighbor’s!  But be strategic and consult an attorney before you raise it externally (including with the neighbor).

My overall guidance?  Send neighbors a basket of fresh fruit ever year, and when you hand-deliver it, spend 10 minutes catching up and asking about their families.  It’s amazing how much ill will can dissolve over apples and pears.

Good luck out there!

 


[1] Inspired by this sentence, I checked: yes, as I am sure my readers are aware, there are libraries boats and library planes, too.

[2] I love historic properties and historic preservation.  That said, if you plan to do this, make sure your team has at least one person who has done a major preservation project before.  Those buildings are full of expensive surprises.

Tags: Laws, Management, Property

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: Laws, Public Records

Topic: Finding A Lawyer - 10/29/2018
We are looking for a lawyer to provide us with advice on numerous issues, including whether librar...
Posted: Monday, October 29, 2018 Permalink

MEMBER QUESTION

We are looking for a lawyer to provide us with advice on numerous issues, including whether library employees are employees of the library or the village, whether the municipal retirement plan is open to or perhaps required for library employees, limitations on investments, limitations on fundraising, guidance on setting up a friends group and/or changing our charter to association library, as well as other questions.


In talking with a number of lawyers, we have found no one with experience with both municipal law and education law, ie public libraries-related law.

 
What suggestions or referrals can be provided to help us find the appropriate legal guidance for a rather wide array of questions, that have a municipal library bent?

WNYLRC ATTORNEY'S RESPONSE

Here’s a typical scenario confronting the modern library board president: on the day the director alerts her that a patron is using the copiers to copy sexually explicit material—taking care to ensure the patrons and employees can see it— a clerk has threatened to complain to the union if the municipal lunch room isn’t made accessible to library employees.  The board chair looks compassionate and sighs…she’ll add these to a list that already includes:

a) trying to figure out if the library actually has a lease for its premises, where it has operated since 1892, but no one can find the deed or contract;

b) assessing if there’s enough money in the endowment to fix the elevator before there’s a complaint under the ADA (and can those funds even be used that way?); and

c) revising the employee handbook.

Municipal law, education law, employment law, intellectual property, and civil rights…all meet at the crossroads of “library law.”  Libraries also have unique protections under New York’s CPLR, and as they become increasingly critical providers of technology, must be adept at interpreting software licenses, too. 

The array of legal issues is endless.  How does a library find the right lawyer? 

To make sure your library can find the right fit for you, I have five answers.  But first, I have THREE IMPORTANT PRIMARY CONSIDERATIONS

Primary Consideration Number One: remember that legal services can be an expenditure like any other.  If your library is subject to a procurement policy, you may need to develop a “Request for Proposals” (“RFP”) to seek the service.  So before you try and of my suggestions below, rule an RFP in our out.

Primary Consideration Number Two:  The New York Stated Education Department’s Division of Library Development is a great resource for information, particularly on structural/charter, budget, and grant matters.  They are there to help you, so don’t hesitate to call (even if they end up telling you to find a lawyer—and they might—you’ll have a nice chat).

Primary Consideration Number Three:  NYLA, New York Library Trustees Association, and your regional council may have some resources for you, too. 

Of course, be careful how in-depth you go when describing your issue(s) to these resources, since these communications would not have attorney-client privilege.

Okay.  Here are “Five Ways to Find a Library Lawyer:”

1.         In many counties, the local Bar Association runs an “attorney referral service.”  Attorneys who participate in the service will self-identify areas of experience and interest.  For many such services, the first 30 minutes of consultation with the lawyer they send you to is at a greatly reduced rate.

2.         Almost all lawyers1 enjoy “knowing someone.”  So even if they don’t practice in those areas, ask every lawyer you know for a referral.  Someone will eventually “know someone” who practices the type of law relevant to your library’s current needs.

3.         Ask a local elected representative or municipal employee about lawyers they know who practice municipal law, or check to see if your local college or university has a “general counsel.”  This could put you on the trail of attorneys with the right array of municipal, education and employment law experience.

4.         Members of any regional library counsel or network can separately contact the provider of this “Ask the Lawyer” service: The Law Office of Stephanie Adams, PLLC, at adams@losapllc.com.  If there is no conflict of interest, and your issue is within our experience, we can help—or, we can help you find the right attorney (not every issue needs a “library lawyer”).  The contract for such work would be separate from the service your regional council or network pays for, but you get the same hourly rate for most types of work.

5.         Your insurance carrier may have a list of law firms near you to help out, and may even have some internal resources it can provide for policy and compliance-related matters.  Call your broker or representative to inquire (remember, your insurance carrier has a high motivation to you connect you to timely legal advice and avoid a claim!). 

When selecting a lawyer, is very appropriate to asking about past work, rates, and proof of malpractice insurance coverage.  The terms of any services should be confirmed in a signed “retainer agreement” or “letter of engagement.”  And don’t be shocked if the person you talk to says “I would have to research that.”  In my experience, libraries come up with very complicated and unique questions.  An experienced attorney may be able to give a quick tentative answer, but will then almost always want to check the latest case law, read your bylaws, and review other factors before committing to final, written advice.

Good luck!



1 Do not rely on a board member who is a lawyer to provide the legal services, but DO ask them to help find the right person.  As has been written extensively in various guides from the Attorney General’s Charity Bureau, and the New York Bar Association, professionals sitting on not-for-profit boards owe the institution not only a fiduciary duty, but also the skills they bring to the table…but they are board members, not professionals under contract (this pertains to accountants, too).  It is a conflict of interest for a board member to be hired to provide professional services to a board s/he sits on…even if it is pro bono.  That said, they can absolutely (and should be) on the ad hoc committee helping to oversee the service or particular matter for the board!

Tags: Laws, Management

Topic: Inter-library Audio Files - 5/24/2018
More than once we have received requests to provide digital copies of audio files from institution...
Posted: Thursday, May 24, 2018 Permalink

MEMBER QUESTION

More than once we have received requests to provide digital copies of audio files from institutions that wish to make them accessible either through headphones or as ambient sound as parts of public exhibitions. The exhibitions presumably charge some sort of fee. We have had requests both for commercially released recordings and for archival, unpublished recordings for which we do not own either composer or performers rights, some of them dating prior to 1972.
Some of the questions raised from this issue: 

  • What do requesting institutions have to do to acquire the necessary rights to play audio at their exhibitions?
  • Does it matter if audio is provided via headphone or open speakers?
  • Does it matter if an entire recording is played vs. an excerpt?
  • Are excerpts of certain duration allowable regardless of securing permissions?
    If excerpts of a certain duration are allowed, is it the duty of the holding institution to create the audio files of the excerpted portion rather than providing the audio of an entire work?
  • As many exhibitions occur at locations remote to the holding institution, actual on-site checks for compliance are prohibitive. Does this change anything in terms of how permission forms should be crafted?

WNYLRC ATTORNEY'S RESPONSE

This one is tricky.

It’s tricky because it stands on a no-man’s land comprised of fair use, library law, contract, and licensing.  This is a place where libraries boldly go on a routine basis, but lawyers fear to tread.  But we’ll try and parse it out.

To do so, we need to remember some “Considerations”:

Consideration #1: Section 108 (d) of the Copyright Act allows a library to duplicate and distribute, for non-commercial use, a “small part” of an audio recording based on a request of a patron or another library.

Consideration #2:  Section 108 (e) of the Copyright Act allows a library to duplicate and distribute, again for non-commercial use, the entirety of an audio recording based on a request of a patron or another library, IF a replacement copy cannot be purchased for a reasonable price.

Consideration #3: Disappointingly and tragically (but predictably), musical works are excluded from Section 108.  What does that mean?  Here’s an example: a recording of Robert Frost reading a poem may be duplicated under 108...but a recording of that same poem set to music may not. 

Consideration #4: Although Congress legislated that 108 protections don’t apply to musical works, it has also stated[1]:

…it is important to recognize that the doctrine of fair use under section 107 remains fully applicable to the photocopying or other reproduction of such works. In the case of music, for example, it would be fair use for a scholar doing musicological research to have a library supply a copy of a portion of a score or to reproduce portions of a phonorecord of a work. Nothing in section 108 impairs the applicability of the fair use doctrine to a wide variety of situations involving photocopying or other reproduction by a library of copyrighted material in its collections, where the user requests the reproduction for legitimate scholarly or research purposes. [emphasis added]

Which brings us to…

Consideration #5:  A library can make a partial or complete copy if it is a “fair use.”  Fair use is determined on a work-by-work basis, applying the four factors[2] set out in Section 107 of the Copyright Act. 

Consideration #6:  An initial “fair use” can meet the requirements of 107 (say, 10 bars of music contrasted with another in a documentary film), but a subsequent, related use might not (the same 10 bars in an TV ad for the same documentary).

Consideration #7:  None of this matters if the copy is coming from a license (a contract) that imposes greater restrictions a library.

 

Bearing these seven “Considerations” in mind, let’s check out the member’s questions in relation to the scenario they provided:

More than once we have received requests to provide digital copies of audio files from institutions that wish to make them accessible either through headphones or as ambient sound as parts of public exhibitions. The exhibitions presumably charge some sort of fee. We have had requests both for commercially released recordings and for archival, unpublished recordings for which we do not own either composer or performers rights, some of them dating prior to 1972.

Question: What do requesting institutions have to do to acquire the necessary rights to play audio at their exhibitions?

Answer: If the work is protected by copyright, and they can’t justify a fair use, they need a license to play the audio at their exhibition.  As the member points out, if the library providing the copy is not also the rights holder, the requesting party needs to work with that third party for permission to play the copy in public (unless it is a fair use).

But that is a secondary consideration for the library who might be providing the copy.  Remember “Consideration #6:” the initial basis for the request could be allowed under 107 or 108, even if a latter use in not allowed. Combine that with what we established in “Consideration #4:” Congress knew that subsequent uses might not be legitimate.  So, to protect libraries, and to protect the sharing of knowledge for purposes of scholarship and creativity, they made it very clear: if the first basis for the copy is legitimate, and the providing library has no knowledge of plans for infringing uses, the providing library will not be liable for infringement.

This is hard, because librarians are both helpful, and tend to be relentless gatherers of information.  If a patron requests a copy and discloses an infringing use for that copy, it cannot legally be provided.  This is true even if the requester subsequently gets a license (since there is no guarantee the license would retroactively extend to the providing library), although at that point, any damage claim would likely be moot. 

Question: Does it matter if audio is provided via headphone or open speakers?

Answer: The number of speakers (headphone or otherwise), the location of the devices, the size of the audience, and the capacity of the venue matter can all matter to an analysis of fair use.  But again, unless the exhibition is the only reason for the request, that information should not impact a providing library’s 108 or 107 analysis, unless the precise use is disclosed as part of the immediate basis of the request.

Question: Does it matter if an entire recording is played vs. an excerpt?

Answer: If the requesting institution is relying on a fair use defense, absolutely, yes.  The amount of the work used is one of the four factors.

Question: Are excerpts of certain duration allowable regardless of securing permissions?

Answer: Recent case law[3] shows that even the tiniest duration can be infringement, if fair use factors are not met.  But don’t let that stop you from providing a 107 copy!  If the fair use factors are met, it is conceivable that a person could use the entire work.  There is no set formula; fair use can only be assessed on a work-by-work basis.

If excerpts of a certain duration are allowed, is it the duty of the holding institution to create the audio files of the excerpted portion rather than providing the audio of an entire work?

This is not a binary question, it is an algorithm.  Here we go:

  • The holding institution should try to ascertain if the work is still protected by copyright.  As the member points out, this depends on dates and publication status.  If it is still protected…
  • The holding institution should establish what type of copy it is providing: 108(d), 108(d) or 107. 
  • If it’s a 108 (d) copy, the institution should document that the 108 (a) and (d) factors are met, and if they are, may copy a “small part” (but remember, 108 doesn’t apply to a musical work).
  • If it’s a108 (e) copy, the institution should document that the 108 (a) and (e) factors are met, and if they are, may copy the entire work (by now, you surely remember that 108 doesn’t apply to a musical work).
  • If it’s a 107 (fair use) copy, after applying the factors, only copy what’s justified; when in doubt, seek legal advice.  This is tough to give guidance on, because “fair use” can only be assessed on a case-by-case basis.  For the example provided, there is no clear answer.  Sometimes, even if the access to the work is free, the use isn’t “fair,” while sometimes, even if money is charged, the fair use factors are met.  So if you go down the 107 road, be sure to get information relevant to the factors, stick to the use at hand (not potential later uses), and apply the factors.  This is true for both commercially released recordings and for archival, unpublished recordings (although publication status is part of the second fair use factor).

Question: As many exhibitions occur at locations remote to the holding institution, actual on-site checks for compliance are prohibitive. Does this change anything in terms of how permission forms should be crafted?

Answer: As quoted above, it was the intent of Congress that a library not be liable for subsequent unlawful use.

For a 107 copy, this starts and ends with the library’s assessment of the fair use for the copy at the time of the request.  Your forms should solicit information only about the immediate need for the copy, and assess if the request is within your institution’s comfort zone.  Your forms should not ask about prospective future uses, which may be beyond your control, nor should you feel any obligation to police the use, which is impossible.

 

Here is food for thought: forms should promote making a 108 copy whenever possible.  108 protection, while narrower, is far less subject to debate; 108 factors are clear and easy to document.  “Fair use,” on the other hand, is often in the eye of the beholder.  Judges must not only apply four factors of analysis, but as recent case law has recently re-affirmed[4], the four factors are not so much weighed, as considered in relation to each other.  It’s a tough analysis that unfortunately inspires erring on the side of caution.  So use 108 whenever it can apply.

A lot of questions, a lot of answers, and a lot of food for thought.  This is a rapidly evolving area of law, so check back in on this issue in a year or so.  The Copyright Office, various library organizations, and Congress all know that the law isn’t quite up to the challenge of technology (108 still uses the word “phonorecord,” which my Spellcheck actually refuses to recognize), so this complex web will continue to evolve. 

And in the meantime, if someone requests a copy of audio by Anthony Barré, use it as an excuse to read Estate of Anthony Barré and Angel Barré v. Carter, et al.  (a/k/a Beyoncé and Jay-Z), because it’s a good illustration of why this response is so very, very convoluted!



[1] House Report 94-1476.

[2] The factors are:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

[3] Estate of Anthony Barré and Angel Barré v. Carter, et al. No. 17-1057 (E.D. Lou. July 25, 2017).  In this case, pop star Beyoncé used very small clips from Anthony Barré’s recorded spoken word performances in the song “Formation;” the court ruled that while the amount of Barré’s work used very small, and was but a small part of the song, the overall factors did not make the use fair.

[4] Cambridge University Press v. Mark P. Becker No. 1:08-cv-01425-ODE (N.D. Ga. Mar. 31, 2016)

 

Tags: Copyright, Fair Use, Laws, Music

Topic: NY Statute CPLR 4509. Library records - 10/31/2017
Can a library report a crime based on use of library resources while honoring CPLR 4509 (assuring ...
Posted: Tuesday, October 31, 2017 Permalink

MEMBER QUESTION

Can a library report a crime based on use of library resources while honoring CPLR 4509 (assuring the confidentiality of circulation records)?

WNYLRC ATTORNEY'S RESPONSE

CPLR 4509[1] is a critical caisson in a library’s foundation, protecting users from those who would draw negative inferences based on access to the library.  The law sets out, in bold, simple language, that librarians shall not disclose such records to law enforcement (or others), unless there is an appropriate subpoena, court order, or disclosure is required by law.

That said, there will be instances when serious patron misconduct might require a report to law enforcement—but the mere act of reporting it will disclose a circulation record (for instance, a patron signing onto a library computer that is then used for a crime).  How does a library report the criminal behavior, while honoring the letter and spirit of 4509?

The American Library Association has compiled a great array of information on balancing these priorities, and it is clear that the answer lies in the library’s policies.  I will not re-create this excellent list of considerations here, but when it comes to this particular question, it is clear every library should have:

  • Policies regulating conduct in the library (a policy on internet use can play a part in this);
  • A policy setting the conditions for loss of patron privileges when misconduct impacts the community or library operations (this policy must have appropriate due process and levels of appeal);
  • A policy, or well-established internal procedure, for reporting misconduct impacting operations of the library to law enforcement; this policy or procedure should consider how 4509 will be honored when such a report must be made;
  • A policy for responding to law enforcement requests for circulation records (not based on a library’s report).  This policy should include the library’s process for evaluating law enforcement requests;
  • All policies and procedures referring to “circulation records” should have clear and consistent language regarding what “circulation records” are (both under 4509, and in that particular library[2]).

The New York Library Trustees Association has a thorough database of policies addressing, from a variety of libraries, addressing these topics.  But just use these for inspiration, since policies must be crafted, evaluated, and periodically revised to serve the mission, legal requirements, and operational needs of your particular library. Ideally, your lawyer should not only review the final product, but be ready to assist with any law enforcement request, is a good idea.

A library that makes sure it has addressed the points in the above bullets, and has trained their staff on these priorities, is ready to protect circulation records, while safeguarding the “proper operation of the library!”



[1] Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute.

[2] Note the ALA guidance on steps to minimize creating/retaining circulation records.

 

Tags: Policy, Criminal Activity, Laws

Topic: Skating the Line between Helpful Information and Legal Advice - 9/19/2017
This answer was inspired by some recent questions… In the quest to give excellent service...
Posted: Tuesday, September 19, 2017 Permalink

MEMBER QUESTION

This answer was inspired by some recent questions…

In the quest to give excellent service and maximum access, librarians must apply intellectual property guidelines--a skill the average person has not honed. Library users, observing this skill (or having been alerted to a copyright concern by a librarian), may then ask for legal advice. 

Here’s an example:

WNYLRC ATTORNEY'S RESPONSE

LIBRARIAN:  We have that copy Moulin Rouge you wanted!

PATRON:  Thank you!  I am planning to generate a version of it with my commentary over it. 

LIBRARIAN:  How interesting.  Are you planning to get permission, or claim Fair Use?

PATRON:  Um…?

LIBRARIAN:  Perhaps you would be interested in this book on copyright, too.   

It is professionally appropriate for librarians to promote awareness of copyright, trademark, and the other laws that govern the use of content.  But what can happen next can be risky:

PATRON:  Thank you for the copyright book!  I am pretty sure my use will be considered “Fair.”  What do you think?

LIBRARIAN:  I am so glad you found the book helpful.  As to any use of the DVD we provided…that is a question for your lawyer.

Unfortunately, the most attentive librarians are often the closest to this exposure, since they are the most dogged about providing access—exploring the furthest reaches of Fair Use and Section 108 to do it.  However, it also means that the pressure to go one step beyond, and advise the patron about what they intend to do with the materials, may be frequent.  When it occurs, librarians must emphasize the boundary between good service and legal advice.  Here is a formula for that:

I [the librarian] provide access to library materials based on the law and policy of my profession and institution; you [the user] should consult your own attorney regarding any legal concerns about your use of the materials being provided. 

In the event any of the service happens in writing, it is helpful to confirm this in writing.  This doesn’t have to read like an official “notice,” but can simply be a nice note:

Hi [NAME].  We were glad to help you find [RESOURCE].  As I mentioned, if you have legal concerns about the material you borrowed, you should consult an attorney.

By that way, I am not suggesting that every patron question needs a disclaimer! But for those areas where librarians are actively applying intellectual property law, or providing access to law-related resources, the boundaries of excellent service and legal advice can blur.  Users, who have a high-trust relationship with their librarians, might not appreciate that boundary. Tightening the focus and emphasizing it protects the patron, protects the institution, and protects the librarian.

Tags: Copyright, Fair Use, Laws

Year

0

2016 4

2017 24

2018 29

2019 42

2020 51

Topics

501c3 2

Academic Libraries 2

Accessibility 4

ADA 7

Association Libraries 1

Branding and Trademarks 1

Broadcasting 1

Budget 1

Circular 21 1

Contact tracing 1

CONTU 2

Copyright 69

COVID-19 35

CPLR 4509 3

Crafting 1

Criminal Activity 1

Data 2

Defamation 1

Derivative Works 3

Digital Access 9

Digital Exhibits 1

Digitization and Copyright 10

Disclaimers 3

Discrimination 1

Dissertations and Theses 1

DMCA 2

Donations 3

E-Books and Audiobooks 2

Ed Law 2-d 1

Education Law Section 225 1

Elections 2

Emergency Response 33

Employee Rights 7

Ethics 3

Executive Order 3

Fair Use 29

Fan Fiction 1

Fees and Fines 3

FERPA 5

First Amendment 1

First Sale Doctrine 3

Forgery and Fraud 1

Friends of the Library 1

Fundraising 1

Hiring Practices 1

Historic Markers 1

HRL 1

Identity Theft 1

IRS 1

Labor 3

Laws 18

LibGuides 1

Library Buildings 1

Library Programming and Events 7

Licensing 3

Local Organizations 1

Management 16

Meeting Room Policy 3

Microfilm 1

Movies 5

Municipal Libraries 4

Music 11

Newspapers 3

Omeka 1

Online Programming 11

Open Meetings Law 1

Oral Histories 1

Overdrive 1

Ownership 1

Parodies 1

Personnel Records 1

Photocopies 15

Policy 28

Preservation 2

Privacy 10

Property 3

PTO, Vacation, and Leave 1

Public Access 1

Public Domain 7

Public Health 1

Public Libraries 4

Public Officers Law 1

Public Records 2

Quarantine Leave 1

Reopening policies 3

Retention 3

Retirement 1

Ripping/burning 1

Safety 2

Salary 2

School Ballots 1

School Libraries 5

Section 108 2

Section 110 2

Section 1201 1

Security Breach 2

Sexual Harassment 2

SHIELD Act 2

Smoking or Vaping 2

Social Media 4

SORA 1

Story time 3

Streaming 12

SUNY 1

Swank Movie Licensing 3

Taxes 4

Teachers Pay Teachers 1

Telehealth 1

Textbooks 3

Trustees 3

Umbrella Licensing 2

VHS 4

Voting 1

W3W 1

WAI 1

Yearbooks 2

Zoom 1

The WNYLRC's "Ask the Lawyer" service is available to members of the Western New York Library Resources Council. It is not legal representation of individual members.