Some of my member libraries have questions about the new Gender Neutral Bathroom Legislation:
1) Type of signage required to be placed on or near the bathroom door. That is, does the sign have to specify "gender neutral", or, is "bathroom" ok. Also, can one use a sign that uses symbols (male, female, ADA) rather than sex?
2) Is a library required to have at least one designated male and one designated female bathroom in the building in addition to a gender neutral one? One of my libraries was with 3 bathrooms was told that was the case.
3) Is there a height requirement for braille signs so that individuals who use wheelchairs can reach it?
[This is the part of the legislation that is generating questions: "Such gender neutral bathroom facilities shall be clearly designated by the posting of such on or near the entry door of each facility."]
It will be good to have clarification/interpretation; it sounds like it has to be clearly stated as gender neutral, which likely can be done with signs with the symbols, but you never know.
Thank you in advance for providing clarification on this legislation.
Above all, "Ask the Lawyer" strives to provide useful, plain-language legal information and analysis for the members of New York's regional library councils.
So before I delve into the background, legal analysis, and compliance tips I would like to offer in response to these questions, here are some useful, plain-language answers:
And with that said...let's delve.
First, let's check in with the legislation the member references, which was signed into law in December 2020, and went into effect in March 2021.
Called "AN ACT to amend the civil rights law and the education law, in relation to single-occupancy bathroom facilities," this legislation affects not only bathrooms in public spaces (like bars, restaurants, etc.), but also bathrooms in SUNY, CUNY, and all community colleges.
While the title and the text of the new laws may sound a tad dry, the "legislative memo" that accompanied it left no room for doubt as to the law-makers' aspirations:
Access to public spaces should not be a privilege. A person's sexual orientation and gender identity are not justifications to exclude individuals from public spaces, including bathrooms. The argument that transgender individuals must use the restroom that corresponds with their assigned gender at birth is discriminatory and wrong. New York State has been a safe haven for people from all backgrounds and beliefs, and we must recognize our role as a leader in the fight for transgender rights. Expanding the civil liberties of transgender individuals is a task New York must take up with pride. We must acknowledge that this issue is not about bathrooms, but is instead about fighting for a person's right to exist in the world free from harassment and discrimination. The California legislature recently passed the most progressive bill on bathroom access in the nation. Now is an opportunity for New York to join California in its efforts to protect transgender individuals and expand inclusivity and dignity for all. Modeled after
California's bill, this act would require all publicly accessible bathrooms, including those in public and private schools, restaurants, bars, mercantile establishments, factories or state-owned or operated buildings, to designate all single occupancy bathrooms as gender neutral.
The memo makes it crystal clear: the intent of the act is to protect civil rights.
This background is important to consider, because as we analyze how to comply with the new laws, the lawmakers' intent--sometimes called the "spirit" of the law--is relevant.
Any institution that must comply with the Americans with Disabilities Act ("ADA") should use the United States Department of Justice (USDOJ)'s standards for accessible design, including when creating the now-required postings to designate gender-neutral bathrooms.
The USDOJ's ADA standards are silent about gender-neutral space. However, they do set parameters for signage, including, as the member writes, use and placement of Braille and signs with "tactile" (can be discerned through touch) elements.
Among what is required (sorry if this language is opaque, I don't write the guidance, I just quote it):
Tactile text descriptors are required for pictograms that are provided to label or identify a permanent room or space. Pictograms that provide information about a room or space, such as "no smoking," occupant logos, and the International Symbol of Accessibility, are not required to have text descriptors.
703.4.2 Location. Where a tactile sign is provided at a door, the sign shall be located alongside the door at the latch side. Where a tactile sign is provided at double doors with one active leaf, the sign shall be located on the inactive leaf. Where a tactile sign is provided at double doors with two active leafs, the sign shall be located to the right of the right hand door. Where there is no wall space at the latch side of a single door or at the right side of double doors, signs shall be located on the nearest adjacent wall. Signs containing tactile characters shall be located so that a clear floor space of 18 inches (455 mm) minimum by 18 inches (455 mm) minimum, centered on the tactile characters, is provided beyond the arc of any door swing between the closed position and 45 degree open position.
703.4.1 Height Above Finish Floor or Ground. Tactile characters on signs shall be located 48 inches (1220 mm) minimum above the finish floor or ground surface, measured from the baseline of the lowest tactile character and 60 inches (1525 mm) maximum above the finish floor or ground surface, measured from the baseline of the highest tactile character.
Meanwhile, in the State of New York, the State Building Code Section E 107.3 reinforces these signage requirements.
What does all this mean? Ideally, the posted signage designating a gender-neutral, single-occupancy or family assist restroom should have either a pictogram with a tactile element on it, or Braille text descriptors describing the room, and with regard to placement, that sign's center should be no less than four feet and no more than five feet above the floor.
Now, let's talk about symbols (as opposed to words).
What if your library wants to use a symbol (or "pictogram") instead of the phrase "gender-neutral"? This is a tough one. If you still have those USDOJ ADA standards open, take a look at how they refer to use of symbols.
First, you'll see that there is a "universal" symbol, set by the International Organization for Standardization (the "ISO") for designating a bathroom that meets the standards for wheelchair access:
Use of this "universal" symbol is described in both the USDOJ ADA guidelines, and the NY State Building Code.
Next, you'll see that the ISO does have a symbol they have developed to designate that a bathroom is "unisex":
Now, this is just me saying this, so take it with a grain of "persnickety lawyer" salt, but "unisex" is not the same as "gender neutral." Further, a symbol combining the binary designations for "female" and "male" is not quite consistent with an initiative seeking to respect the innate dignity of people who might not identify with either category.
So, until the ISO develops a symbol for "gender-neutral" that doesn't rely on a binary construct of gender, I advise considering not using a symbol at all (for the "gender-neutral") part. Give the ISO time to craft a more appropriate pictogram.
That said, if you are a library lucky enough to have a bidet in your single-occupancy, gender-neutral, family-assist bathroom, the ISO might still have an option for the "bidet" part:
--Just make sure that as required, the pictogram has a tactile element.
With the legislative record clearly establishing that this change to the law is about civil rights, and with libraries eager to emphasize their missions of access and inclusivity, the signage for a library's gender-neutral bathroom is a good one to demonstrably get right.
However, as you can see from the "Legal Analysis" above, "getting it right" can be complex.
As just a final example of that complexity (and to delve a bit more into one of the member's questions) here is a section of the New York State Building Code's Section 2902, on the prescribed ratio of plumbing facilities for libraries (including total amount of lavatories, amount for men, and amount for women):
What is the take-away from this chart? If your library is struggling with how to designate, plan, or build the right number and/or type of bathrooms, don't be surprised: this stuff is not simple, and it takes consideration of old/new construction, your status as a tenant or building owner, local law, and a host of other factors. Which is why (in addition to your lawyer), a local architect, or a planner with experience on civic and public assembly spaces, is a good person to reach out to.
Architects and planners are the people who live and breathe place-making and ordinal signage. By design, these are professions that think about how people organize buildings, and how people can feel welcome in spaces. An architect or planner with experience in your area will know exactly how to not only designate the space, but to order the signage, and assess the required number of facilities. Since there is no "one size fits all" answer to some of these issues, a library needs to consider a custom fit.
If you aren't sure where to start on a quest for an architect or planner, a call to your local "Permits" officer might yield a name or two, and if there is a local college, their librarian might be able to connect you to the "head of planning."
I have included a lot of analysis in this answer, because in my experience an audience of information management professionals can handle it.
That said, after all the above analysis and commentary, the answers regarding a gender-neutral, single occupancy/family assist bathroom are simple:
Thank you so much for a thoughtful array of questions, I was very grateful to be able to spend some time delving into this topic.
 If you're thinking "Hey, they left out public schools!", the law impacting those was passed earlier.
 See https://www.wnylrc.org/ask-the-lawyer/raqs/65 for comments on when a library, museum or other institution must comply with the ADA.
 Confession: it is driving me CRAZY that this legislation did not include a hyphen between "gender" and "neutral." I refuse to continue the mistake and will use a hyphen unless I am directly quoting the law; to do otherwise would be to be "grammar-neutral" (not to be mistaken for a "grammar neutral" which is someone who mediates grammar disputes).
 An organization that is "famous" in the same way the G8 or the IMF is "famous": generally known, and pervasively powerful...but not many people can succinctly define what you do on a daily basis.
 Find more guidance on standards for using this symbol at ISO here: https://www.iso.org/obp/ui/#iso:grs:7001:PI_PF_006; the general search tool for international symbols is: https://www.iso.org/obp/ui/#home
 Get it together, ISO!
 Section 2902 also states that any single-occupancy bathroom may be deducted proportionately from gender ratios. It's almost like they knew what was coming!
Tags: Accessibility, , Library Buildings, Building Codes, Gender Neutral Signage, Signage
If a nonprofit organization is unionized, may they have volunteers as part of a collaborative effort with another organization for a service that is not currently provided? For example, could they collaborate witha volunteer organization for an outreach service that is not currently provided.
This is a very good question, since the use of volunteers to supplement or replace work typically performed by union employees can most definitely be a violation of a collective bargaining agreement.
In one case from 1981, a school district on an "austerity budget" used volunteers to set up (and then clean up) district facilities for student sports--a task typically performed by custodial workers under a collective bargaining agreement ("CBA"). An arbitrator found that the district's use of volunteers to perform the unionized workers' tasks violated the CBA, and the workers were owed pay for the work they should have had the opportunity to perform.
That said, schools, libraries and not-for-profits with unions routinely use volunteers for all sorts of things; clearly, not all use of volunteers risks violation of a CBA. So, my plain answer to this question is: "yes, if the library is careful."
The rest of this reply sets out what I mean by "careful."
First, any not-for-profit has to exercise caution when using volunteers, because (as the member's question points out) there can be concerns that some use of volunteers violates the labor law.
The NY Department of Labor has really good basic guidance on this at https://dol.ny.gov/system/files/documents/2021/03/p726.pdf
In relevant part, that guidance says:
Unpaid volunteers [at an NFP] may not:
• Replace or augment paid staff to do the work of paid staff
• Do anything but tasks traditionally reserved for volunteers
• Be required to work certain hours
• Be required to perform duties involuntarily
• Be under any contract to hire by any other person or business express or implied
• Be paid for their services (except reimbursement for expenses)
Considering this guidance, when I work with libraries and other not-for-profit organizations who are considering using volunteers (no matter what the work for the volunteers will be, and whether or not there is a union), I advise that the organization have a volunteer policy.
The volunteer policy should cover all the concerns raised in the bullets above, as well as address risk factors such as placement letters confirming the terms of volunteer service, safety, insurance, and when a library using volunteers will conduct background checks.
Second, when I work with libraries and other not-for-profit organizations who are considering using volunteers, who also have one or more unions representing their employees, I stress the need to work with the union(s) pro-actively to confirm that an activity performed under the volunteer policy is not regarded as replacing paid/union workers.
There are a number of ways to achieve this confirmation.
The most formal way would be accomplished through a broad exclusion clause in the union contract(s) so every program does not present an ad-hoc task (but that could be a hard thing to fight for at a negotiation). A sample clause for that could be:
It is understood between the Parties that volunteer service performed per the Library's "Volunteer Policy" to enable events and programs that are not part of the Library's Plan of Service are not regarded as replacing or supplementing union members.
However, if such a clause is not a part of the standing collective bargaining agreement, a simple exchange of emails, or a more formal signed memorandum addressing only one type of volunteer activity, can be used to confirm this understanding.
The goal in all cases is to have clarity about what service is being performed by the volunteers, and to be able to show an affirmative agreement that it is not negatively impacting the experience of the workers in the union (which risks assertions of breaching the contract). Since the perception of "negative impact" (and breach) can vary from place to place, this is not an understanding to pursue after-the-fact nor without a solid understanding of the legalities and subtleties of the situation.
Third, even if a union is amendable to it, I would caution a library against using volunteers for any service that is part of a library's Plan of Service, since that can undercut the data needed to support adequate state/local funding. Volunteers can be invaluable assets, but a library should always be able to function as required by law without them.
Fourth, if all the other cautions and no-no's listed above check out, it is vital to have a very clear agreement with the collaborating organization outlining the nature of the service, and each parties' roles and responsibilities for it. This ensures the risks and liabilities posed by offering any program to the public are properly balanced, and the library isn't taking risks for the actions of volunteers provided by another organization. I know it sounds impolite, but when it comes to volunteer services from a third-party, a not-for-profit must look a gift horse in the mouth.
In many ways, it's a new world out there. For libraries seeking to innovate and work with other organizations to co-produce new programs, the above-listed cautions can set the stage for using volunteers without worrying about violating a union contract.
Thank you for a good question.
 (Onteora Cent. Sch. Dist. v Onteora Non-Teaching Empls. Asso., 79 AD2d 415 [3d Dept 1981])
 After the original decision cited in footnote 1, this case takes a lot of twists and turns through different rulings involving the education law and the authority of arbitrators. But the takeaway for purposes of this answer is: "Yes, use of volunteers can violate a CBA."
 For this reason, whenever possible, an attorney who knows the volunteer policy, knows the details about the service to be performed, and knows the union contract, should be consulted in advance.
 Of course, libraries and other organizations can host volunteer services (have them on site, but not co-sponsor them) provided by other organizations (such as Literacy Volunteers) without having to worry about these issues quite as deeply. "Hosting," rather than "collaborating" is a way to work with other organizations (and their volunteers) while not exposing a library to an assertion of violating the labor law, a CBA, or incurring unnecessary liability.
Tags: Labor, , Non-profits, Policy, Unions, Volunteers
One of our member libraries has asked me the following question:
"We'd like to create an online catalog of drone pictures of our area. What do we need to consider? We know people are posting these pictures on Facebook, and we'd like to request permission to collect them all in a catalog on our website. Please let me know any technical issues or legalities we need to keep in mind. I think it's a good idea, but I don't know exactly how to implement it."
Are drone pictures copyright free as they are in other people's properties and cover large areas? Is it legal to post drone pictures without permission?
Thanks for any thoughts on this topic!
This is a cool idea—aggregating and cataloging drone shots. Someone fifty years from now will be very, very grateful for that type of work!
But as the member points out, there could be some technical or legal issues, namely: copyright, privacy, and security. How does the library make sure none of those concerns negatively impact the project?
Let's take those in order.
Legal Concern: Copyright
This one is pretty simple: with one exception, the copyrights to pictures taken by a drone are owned by the operator(s) of the camera, who usually (but not always) is the same person/people flying the drone. They are never the property of the area photographed (unless the property owner is also the photographer).
What is the "one exception" to that ownership? If the photographer is taking the drone images as part of their regular job, the copyright will belong to their employer (for example: if the drone shot was taken by the photographer to illustrate a story in a newspaper).
Once the library establishes the copyright owner, the only copyright-related impediment to including the images in the catalog would be if the owner had sold the copyright, or given someone else "an exclusive license," since that would mean they could no longer license the images to your library. Other than those complications, with the right agreement, permission and use should be simple.
Legal Concern: Privacy & Security
The "copyright" section, above, is fairly simple. Things are a bit more complex when it comes to privacy and security.
There is a huge array of drone-shot content that I could see risking a violation of privacy or a threat to security. Here are the most common I could rattle off at a cocktail party:
In addition to my "rattle it off" list, I did some research. If we leave out the restrictions of reconnaissance and targeting drones, there is one other drone-related “no-no” to be wary of:
In most of these concerns, it is not the act of including the images in the catalog that would be the legal issue--but rather, that the images themselves could be proof of a legal violation. We’ll address that more in the last section.
Legal Concern: FAA-restricted Areas
The Federal Aviation Administration’s rules for academic, hobbyist and other forms of non-military drone use are here:
I won't re-hash them, but the FAA does not bar taking pictures—just flying at certain locations and times. However, all operators--whether hobbyists or professionals--have to avoid certain areas at certain times.
The FAA maintains a list of those areas, as well as a list of designated recreational UAS flight zones, available here:
This was so cool, I looked up my part of the state:
And now I know where not to fly the drone I don’t own.
Sample License for Use of Drone Pictures
Once you have confirmed that any drone shots your library would like to use are not: the result of or evidence of a crime, taken in forbidden air space, or otter harassment, here is a sample license for securing permission to include them in an online catalog:
IRREVOCABLE, NON-EXCLUSIVE LICENSE
[NAME] ("Photographer"), an individual residing at [ADDRESS], and at least 18 years of age, hereby gives the [NAME LIBRARY] (the "Library") an irrevocable, non-exclusive, transferable license to use an image entitled [TITLE], a copy of which is attached hereto as "A" (the "Image"). The permission to use the Image includes unlimited use in any format now existing or later developed.
Photographer represents and warrants that the Image is their original work and that to the best of their ability to determine the rights of no individual or entity were violated by the creation of the Image.
In consideration of the rights granted herein, Library shall at all times credit Photographer with authorship and ownership of the photo as follows: This image is © [NAME], [YEAR], and is used by the [NAME LIBRARY] with permission from the photographer, who may be reached at [email address].
Signed by Photographer: _________________________.
Signed on behalf of the Library: ___________________________.
A Final Word on Getting "Permission"
This question was pre-packaged to consider issues of permission/legal concern related to images generated via drone, so I have structured it to give primary consideration of those issues.
However, I would be remiss if I didn't stress that when assembling an archive or image collection, worries about permission shouldn't always be a threshold consideration.
Why is that? If a library or archive crafts the parameters of an image catalog around the purpose of that catalog—around why it is important to gather a certain type of content, within a certain range of criteria—permission might not even be necessary.
Concerns about permission and legality should not prevent the assembly of a resource that has academic, documentary, or investigative value. And the more a collection or archive is shaped as a documentary, academic, or investigatory endeavor, the less the subject matter and content can pose legal concerns...or rather, the more protections the project will be able to avail itself of.
Taking advantage of those exemptions starts with having a very clear scope for your project, a written set of ethics, and a statement of purpose for the endeavor. 
My takeaway in this final part of the answer? If your project is of academic, historical, or social value, don't let lack of permission be a roadblock. Instead, just like the member does in this question, set up a clear scope for your project, and then tackle any reservations head-on. This will lay the groundwork for a strong archive or catalog.
Posterity will thank you.
 Head Photographer at "Drone Shot Weekly?"
 Here is the FAA guidance on media use of drones for newsgathering: https://www.faa.gov/about/office_org/headquarters_offices/agc/practice_areas/regulations/interpretations/Data/interps/2015/Williams-AFS-80%20-%20(2015)%20Legal%20Interpretation.pdf. It’s interesting: even if using a small drone, such use doesn’t qualify for the “hobby” exception, and the drone should be registered.
 Do you need the “right agreement?” See the section of the answer called "Sample Agreement" for an example.
 NY Penal Law 250.45
 JUST TO BE CLEAR: I have 100% confidence that if a library comes across a creeper nude drone shot, they will not include it in an online catalog! I am just being thorough.
 New York Civil Rights Law Section 50.
 Per 50 CFR 18.137: "Unmanned aerial systems or drones must not cause take by harassment of sea otters. Measures for avoidance of take may be required in an LOA, and may include maintaining a minimum altitude and horizontal distance no less than 100 m away from otters, conducting continuous visual monitoring by PSOs, and ceasing activities in response to sea otter behaviors indicating any reaction to drones."
 Thank you, THANK YOU to the member who sent this question. Because of you, I got to read the FAA's guidance to local law enforcement for drone-related incidents, which includes this practical guidance "NOTE: Battery life is typically 20 to 30 minutes."
 By the way, it might not be precisely forbidden for your library to post such images, just as a newspaper or academic publisher might reproduce them for purposes of news or scholarship. But since those categories come with some higher risks (particularly of being told to cease and desist), it is wise to consider consistency with the purpose and ethics of your archive before including them.
 I am not saying to not consider them...just don't let them be project-killers.
 Such as fair use, journalism privileges, and recognition of the non-commercial nature of the use.
 Links to further "Ask the "Lawyer" content on this specific consideration (ethics as a key component to rock-solid archives) are here: https://www.wnylrc.org/ask-the-lawyer/raqs/172 and https://www.wnylrc.org/ask-the-lawyer/raqs/178.
A municipal public library has accepted a gift of real property and is selling the property.
How much autonomy does the Library have in accepting and selling this property? The sponsoring municipality feels that perhaps it is their responsibility to handle the sale according to their regular procedures, including a permissive referendum (as required by law).
Finally, who controls the proceeds from the sale?
In law school, one of the first classes you take is "real property."
I remember thinking, back in that first semester before my brain got converted into that of a lawyer: "Real" property? What...is there something called UNreal property?
Of course, nowadays when I see questions like this—about land, and land rights, and the laws impacting them—I think "Oooh...a question about real property!"
Warn your kids: this is what three years of law school will do to you.
I appreciate questions about real property, because I really enjoy working on issues involving land, and land rights, and the laws impacting them. Whether it's roads, old buildings, or construction matters, some of my favorite work requires reviewing surveys, obsessing over title abstracts, and poring over inspection reports. And don't get me started about design-build contracts.
In this case, many of the fundamental considerations of this submission were addressed in a previous "Ask the Lawyer" from 12/13/2019. So as a primer, readers may want to take a look at that previous answer, where we discuss some of the fundamental things a library has to consider when selling real property.
This background allows me to jump right into the specific concerns of the member's questions:
Question 1: "How much autonomy does the Library have in accepting and selling this property?"
Answer: unless there is a specific provision in the library's charter, bylaws, or contract with its sponsoring municipality that expressly creates some type of co-ownership, the library, as the sole owner, has ALL the autonomy.
Question 2: The sponsoring municipality feels that perhaps it is their responsibility to handle the sale according to their regular procedures, including a permissive referendum.
Answer: unless there is a clear legal claim that puts title entirely or partly into the municipality, the various state laws governing sale of municipal property do not apply; rather, the sale is governed by Education Law Section 226.
Question 3: Finally, who controls the proceeds from the sale?
Answer: the board of the library, and no one else.
To the member's brief, pithy questions, I will add a question of my own:
Question 4: Why am I so confident about the answers to questions 1 through 3?
Answer: because I have researched the following:
These materials span over sixty years of library law-making, and I am not going to summarize them all here. But for those who wish to dive a little deeper into this topic (buckle up, unless you, too, are interested in real property, I've been told this is pretty boring), here is a brief overview:
Education Laws 260 and 226, together, confirm that the trustees of every library chartered in New York, may "[b]uy, sell, mortgage, let and otherwise use and dispose of its property as they shall deem for the best interests of the institution..."
Here are some examples showing how this legal structure has been applied:
In 1953, the NY State Comptroller opined that when a village and a library jointly acquired property, they were co-owners. This means a library can co-own a library building along with its sponsor (much as two individuals can co-own a parking lot). If that is the case, the law and regulations applicable to both entities would govern a sale. However, that same year, the Education Department confirmed that a chartered library is a separate entity from its municipal sponsor.
Flash forward to 1976, when the Comptroller stated that a school district library could acquire a building on its own. Since that time, there hasn't been a lot of case law over who owns library buildings: like any other stand-alone, not-for-profit education corporation, a library can own its own building.
That said, while the New York Education Law empowers public libraries to buy, sell, mortgage, and otherwise dispose of their real property, there are other laws and regulations controlling how the resulting assets can be used. This is why a public library (or any library) should not buy, sell, lease, or arrange for capital improvements without its lawyer involved (that goes double for accepting a bequest or a restricted donation of land or a building, which has not only legal/regulatory considerations, but could also be fraught with the drama that can accompany wills and transfers of land).
Now, in the midst of all this ownership/autonomy, it is good to remember: not all public libraries own their buildings. Some libraries are tenants of their sponsoring municipality (to check the ownership of the building, check the deed or the real property tax records for your county). But even a library that is a tenant of their municipality buildings can own a separate building—if some nice person or entity decides to give them one.
So in a case like the one described by the member, the most useful thing would be to 1) check the library's charter; 2) check the documents giving title of the property to the library; and 3) make sure the lawyers for both the municipality and the library (and the buyer!) are on the same page about ownership and salability. As the lawyers do their "real property" thing, so long as the title is "clear" and solely in the name of the library, it is the library who owns the property, and the board of the library who decides if/how to sell it (in a way consistent with its charter, bylaws, and charitable status....on that, see the "Ask the Lawyer" from 12/13/2019).
Thank you for a great question.
 A "title abstract" is a summary of everyone who has owned a parcel of property since it was first regarded as something to be owned. It can contain all sorts of historically salacious details, like when a house was foreclosed on, or what it sold for in 1935.
 Which all Regents-chartered "municipal" libraries are.
 Opinion of the State Comptroller #142 (1953).
 Opinion of Counsel for the NY Education Department No. 61 (also 1953).
 Another type of "public" library.
 Opinion of the State Comptroller #771 (1976).
 There is a lot of case law involving the planning and construction of library buildings, but no squabbles about who actually owns them. For a good example of a case involving construction of a library, see Matter of Rimler v City of NY, 53 Misc 3d 1212[A], 2016 NY Slip Op 51627[U] [Sup Ct, Kings County 2016].
 Martin v Board of Education, 39 Misc. 2d 519, 241 N.Y.S.2d 396, 1963 N.Y. Misc. LEXIS 1971 (N.Y. Sup. Ct. 1963).
 It is important to know who owns the building! If your library is a tenant rather than an owner, it impacts things like personal injury cases (an example of this is found in Deinzer v Middle Country Public Library, 2013 NY Slip Op 33823[U] [Sup Ct, Suffolk County 2013].
Tags: , Municipal Libraries, Property, Public Libraries
The awful CASE ACT is now a law. While I think the language is problematic, I fear trolls will try to collect money ($30,000) from libraries unaware of this change in copyright. Here is a blog post that I thought was helpful https://www.recreatecoalition.org/the-case-act-now-what/
What should we be doing? Thanks.
For those readers who haven't been following it, the "CASE Act" authorizes the federal Copyright office to create a "small claims" division for the adjudication of "small" (under $30k, and no award of attorney's fees) copyright infringement cases. ,
Like the member, I know many attorneys who think this legislation is "awful." I also suspect that if I took an insurance carrier and a publisher out to a bar, they would think it is "pretty cool," and would toast the efforts of the well-paid lobbyists who worked so hard to ensure it got passed this December along with the federal budget.
There is a LOT of writing out there on the CASE Act, so I am going to focus on the practical aspect of the member's question: when it comes to the inevitable trolls who will use genuine claims and fraudulent allusions to this new method of bringing copyright claims, what should libraries and other information professionals be aware of?
The good news is: even with new legislation, your response remains the same: keep calm, and deal with a copyright infringement allegation step-by-step.
What are those steps? Updated for a CASE Act-containing world, here is the "Ask the Lawyer" "Copyright Troll Begone!" Emergency Response Procedure.
"Copyright Troll Begone!" Emergency Response Procedure
Step 1: Receiving the complaint
If your institution receives ANY assertion of copyright violation (by email, mail, phone, in person, or fax), do not immediately reply to the allegations. Never!
If the accusation is in writing, simply move on to step "2."
For interpersonal outreach (on the phone, in person, in yet another Zoom meeting), state, "I am making a note of your concerns. What is a good number/email to reach you at [at least one day later]?" NOTE: Even if they keep trying to get you to argue/response/engage, don't take the bait, just set up a time to reply.
Step 2: Dealing with the complaint
Okay, you have in writing before you (either as submitted, or in your notes) an allegation of infringement. It is either: i) a scam; ii) an honest but empty threat; or iii) a problem. To determine which of these options it is, you need to either consult your lawyer, or do some research.
Step 3: If you conclude it is a scam
There are copyright-based scams all over the place, and with the CASE Act, the scammers will have yet another point of entry for their menacing but baseless threats. "You owe us $150,000!!!" "To avoid prosecution, contact us NOW." "The CASE Act means we can sue you without registration, so we're attaching your bank account for $30k." Scare tactics. Bogus claims.
If your attorney or your research shows that the complaint you received is illegitimate, I encourage you to send a copy of it to the New York Attorney General, and to the Copyright Office. Then you can stop thinking about the claim, and move on with your day.
Step 3: If you conclude it is not a scam, or can't tell
If you examine the complaint and it seems legitimate, the only thing I can say is: consult your institution's insurance carrier and/or your attorney as soon as possible.
Even if you think your use was "fair" (as in, not an infringement), or you can show you had permission, there is too much risk in saying something that could be problematic later, if you respond to the allegation without a pro.
Step 4: Ensure the Hand-off
Make sure that whoever is handling the matter for you (attorney, insurance carrier) takes responsibility for the next steps, in writing. If an attorney is handling it, a letter or e-mail confirming they are representing your institution in the matter is essential. If your institution's insurance carrier is handling it (many general liability policies cover this...do not forget to check!), you will get a notice of "tender," telling your library that there is coverage, and if/how they will handle it (including if legal counsel will be assigned). With that assurance in writing, you are ready to get back to the business of information management.
Step 5: Check in this time next year on the CASE Act
As the blogger cited by the member writes, the CASE Act was only passed this December. Implementing it will take the federal Copyright Office some time. Or as they put it:
The Office must establish the CCB by within one year of enactment, unless the Register of Copyrights, for good cause, extends the time period for no more than 180 additional days. The Office will soon begin implementation activities. Proposed regulations will be published in the Federal Register and the Office will provide updates through its NewsNet service.
We'll keep an eye on the developing regulations here, and send a "CASE Act" update this summer or early spring.
 If you want a more official-sounding description, here is the description from the Copyright Office: "On December 27, 2020, the Copyright Alternative in Small-Claims Enforcement Act of 2020 (the CASE Act) was enacted as part of the Consolidated Appropriations Act, 2021. The CASE Act includes a number of the Office’s earlier recommendations. It establishes a Copyright Claims Board (CCB) in the Copyright Office to hear copyright infringement matters and (1) caps damages at $30,000 total (including statutory damages of $15,000 per work, and $7,500 per work for which an application was not filed in accordance with section 412 timelines); (2) provides an opt-out option for the respondent; (3) includes streamlined procedures that limit discovery and rely mostly on written materials; (4) allows claims by both copyright owners and users for infringement and exceptions and limitations, respectively; and (5) includes additional fees for bad faith claimants and bars those who repeatedly abuse the system."
 Here is a link to the legislation: https://www.congress.gov/bill/116th-congress/senate-bill/1273/text
 "Troll" has a primary connotation of being an online provocateur, these days. But in the intellectual property world (patent, trademark, copyright), "Troll" means a person/entity who trades in IP with a goal of suing for infringement. Either meaning, of course, is nowhere near as cute as the fluorescent heroes of the "Trolls" franchise, who are just darling.
 Feel free to print it and put it on the wall near the "handling angry phone calls," and "don't fall for this phishing scam" lists.
 If they put the threat in the chat box, just grab a screenshot and continue with the meeting.
 You can send a consumer complaint to the NY Attorney General at https://ag.ny.gov/consumer-frauds/Filing-a-Consumer-Complaint.
 The Copyright Office doesn't have a fraud report utility, but you can reach them at https://www.copyright.gov/help/. You can forward a pdf of it to me, too. I collect these things the way other people collect menus or bottle caps.
 If you are feeling whimsical, you can say "Copyright Troll, begone!" as you put the notice in the shredder.
 At the update posted here as of January 28, 2021: https://www.copyright.gov/docs/smallclaims/ .
We got a question regarding how the new rules for records retention (the "LGS-1") impacts the retention of school library borrowing records.
Under the new LGS-1, how long must school library borrowing records be retained? How does that impact BOCES, district, and school library records purging?
Thank you for this question. The LGS-1 is one of my favorite rabbit holes to explore.
I took a look at Schedule Item 596, which applies to "Borrowing or loaning records." I have put a screenshot of the section, as it appears in the schedule as displayed on the NY State Archives web site: http://www.archives.nysed.gov/common/archives/files/lgs1.pdf
As you can see in the screenshot, 596 fixes the retention period for borrowing or loaning records for school libraries as "0 years after no longer needed."
"No longer needed" is one of those phrases in the LGS-1 that renders the retention period variable. This flexibility can be both helpful and frustrating, since a district, BOCES, or school library must determine, via policy, what "needed" means.
This can vary from place to place, but in all instances should be based on a determination of what is meant (for the district/BOCES/or school library) by "need," and then confirmed in a policy.
After that, best practice is always to purge records once their retention period is over, and for something as deeply connected to ethics, compliance and privacy as library records, that is doubly true. For school libraries, that retention period is zero, once the records are no longer needed.
Therefore: determining how long student library borrowing records are "needed" (something that may vary from library to library, district to district, BOCES to BOCES), and then purging the record as soon as possible, is a good way to use the LGS-1 to enhance an institution's commitment to privacy.
Thanks to the member for bringing up this nuance. These issues are at the crossroads of ethics, compliance and automation, and require continuous and careful attention to detail and resulting policy.
Tags: , Privacy, Records Management, Record Retention, School Libraries, LGS-1
The state's new paid sick leave law recently went into effect on September 30th. According to the state's website, eligibility requirements are as follows:
"All private-sector employees in New York State are covered, regardless of industry, occupation, part-time status, and overtime exempt status. Federal, state, and local government employees are NOT covered, but employees of charter schools, private schools, and not-for-profit corporations are covered."
As a school district public library, I'm curious to know if we fall into this local government category and so are not covered by the law. According to the state comptroller's table summary of local government entities [https://www.osc.state.ny.us/local-government/data/local-government-entities], public libraries are listed as "Miscellaneous Local Public Organizations".
However, in regards to page 33 of the State's Local Government handbook,
"Local government in New York State comprises counties, cities, towns and villages, which are corporate entities known as municipal corporations. These units of local government provide most local government services. Special purpose governmental units also furnish some basic services, such as sewer and water services. School districts, although defined as municipal corporations, are single-purpose units concerned basically with education in the primary and secondary grades. Fire districts, also considered local governments in New York State, are single-purpose units that provide fire protection in areas of towns. Fire districts are classified as district corporations. There are other governmental entities which have attributes of local governments but which are not local governments. These miscellaneous units or entities are generally special-purpose or administrative units normally providing a single service for a specific geographic area."
I wonder if a school district public library, such as ourselves, doesn't fall under this last category of governmental entity: one which has attributes of local governments but which is not a local government. If this is so, then this new law would seem to apply to us as well.
It's all a little confusing. Maybe you can help!
I wish I could reply to this excellent question with a plain "yes" or "no." But I cannot.
Why not? Because, while as the member points out, a public library's "type" is relevant to this question, what may also be relevant is how the employees are being paid. So answering this question requires a two-factor analysis:
Factor 1: Is the library in question considered a "type" of "governmental agency?"
Factor 2: are the employees of that library compensated as if they were employees of a governmental agency?
If the answer to either question is "yes," Labor Law 196-b (which is the new "sick leave" law) doesn't apply. If the answer to both is "no," then it may be time for the non-exempt library to draft a new Sick Leave Policy.
Now let's talk about the factors in this "two-factor test."
Factor 1: Is the library in question considered a "type" of "governmental agency?
Most libraries in the state of New York are NOT "governmental agencies" as that term is used in Labor Law Article 6 .
Sure, the library has to account for taxpayer money as required by the "General Municipal Law." And yes, it is subject to parts of the "Public Officers Law." And yep—it may even have to disclose certain records under the Freedom of Information Law.
But none of that means they are performing a function of a "governmental agency" as defined under the Labor Law, which is where the new "sick leave" rules come from. Under the Labor Law, a public library is far more likely to be considered a not-for-profit education corporation required to offer sick leave (and provide Workers' Compensation Insurance, and follow the NY Minimum wage laws...), than an exempt entity like a school district.
Now that being said, even if a library is not a "governmental agency," they may also be exempt from 196-b if their employees are....
Factor 2: "Compensated as if they were employees of a governmental agency"
How can this type of "compensation" happen, if the library itself isn't a "governmental agency?"
In New York, many libraries use their sponsoring municipalities and sponsoring school districts as the "employer" of their employees—even though the library board retains the legal autonomy to hire, discipline, set compensation, promote, or terminate the employees.
In this type of scenario, the library employees are a) paid directly by the municipality, b) are covered by the municipality's insurance, c) get the municipality's benefits, and (most tellingly) are d) eligible for "comp time" otherwise barred by rules requiring mandatory overtime. In short, under much of the Labor Law, they are treated as municipal/district employees.
So does my public library have to give employees sick leave under the new law, or what?
Sadly, there is no "bright-line" rule. But! I have created a handy "Library-Municipality Relationship Type" chart to help you figure it out if it's something your library needs to worry about:
Library-municipality Relationship Type
Legal impact with regard to employees and labor law
What this means with regard to the new "Sick Leave" law ("196-b").
1. "Total Coupling" Type
The library never separated any functions from the sponsoring entity; all finances, employee compensation, employee benefits, procurements, and property are owned/controlled by the municipal entity.
Ideally, the relationship is confirmed in writing.
In "total coupling," employees of the library, for Labor Law 196-b purposes, are considered municipal/district employees, even though the library board retains the authority to hire, discipline, set compensation, promote, or terminate the employees.
Employees are totally covered by the policies and benefits of the municipality/district, including the sick leave policy, and 196-b does not apply.
2. "Select support: determinative" Type
The library has separated some functions from the sponsoring entity, but some functions determinative of legal status remain controlled by the municipal entity; for example, if a town still owns the library's building, or payroll and benefits are through a city.
Ideally, the relationship is confirmed in writing.
In a "Select support: determinative" scenario, if "employment" is a determinative factor, employees of the library are paid by the municipality/district, so for legal purposes the employees might be considered municipal employees, even though the board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees, and even though the library has de-coupled from the entity in other ways.
IF employees are totally paid by and covered by the benefits of the municipality/district, including their sick leave policy, 196-b does not apply.
Otherwise, the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" to be exempt.
3. "Select support: non-determinative" Type
The library has separated from the sponsoring entity to the degree that any slight collaboration between the library and the municipality does not determine legal status. For example, the Town may plow the parking lot as a courtesy, but does not own the building, hold the money, or provide payroll/benefits.
Ideally, the relationship is confirmed in writing.
In a "Select support: non-determinative" scenario, the select support related to employees would not risk creating employer-employee status, or influence compensation and benefits, but could still be helpful assistance. For example: if library employees were allowed to attend town employee trainings and professional development to save money for the library.
Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).
4. "Totally De-coupled" Type
The library has completely separated functions from any sponsoring entity. The library owns the building, does all its own procurement and contracting, is the sole administrator of employee-related matters, and takes no extras or freebies from its municipalities/district.
No need to confirm the lack of relationship in writing, but you can exchange New Year's cards.
In a "total de-coupling," there is no select support related to employees. Librarians and municipal/district employees might say "hi," but they don't attend regular trainings or joint work sessions, and they are not in any way co-workers.
Library employees are not paid through the town/district, so the library must develop a policy under Labor Law 196-b, OR consider itself a separate "governmental agency" exempt from the law (which should be confirmed by a lawyer in writing for that specific library).
And there you have it. From what I have seen, every public library in New York State handles its coupling/de-coupling in a different way. Charter documents, bylaws, MOU's, and political/diplomatic relations can influence this just as much (if not more than) that law. If you know where your library stands, you can not only assess its obligations under the Labor Law, but many other critical compliance obligations, as well.
The bottom line here is: library employees shouldn't be left in a lurch, especially when it comes to sick leave, family medical leave, short-term disability, workers' compensation, and paid family medical leave—all of which are rooted in the question of "who" their employer is. This means library trustees should periodically confirm, with certainty and clarity, what policies apply to their workforce. Regardless of where a library falls on the above chart, this can be accomplished with a confirmed, clear set of policies.
As employment law gets more and more intricate, and as we continue to live with a pandemic, this need for clarity will only get more critical.
I want to say a big "THANK YOU" to Ben Gocker at Tupper Lake Public Library for submitting this excellent question and bearing with me while I talked through the answer with him. Like all librarians I get to work with on "Ask the Lawyer," Ben is a critical thinker who brought a lot of research and practical experience to his question. He also exhibited incredible patience as I tried to explain the mutable legal status of bodies defined by the Education Law, operating under the Not-for-Profit Corporation Law, subject to the General Municipal Law, living with the Civil Service law, and of debatable status under the Labor Law. Thanks again, Ben!
I hope this approach and chart come in handy for public libraries out there struggling with this question.
 I know this sounds like a re-hash of the member's point in the question, but in this case, I mean as that term is defined in Article 6 of the Labor Law, which is the section 196-b is part of.
 Section 190 of the Labor Law, whose definitions apply to 196-b, states: “Employer” includes any person, corporation, limited liability company, or association employing any individual in any occupation, industry, trade, business or service. The term “employer” shall not include a governmental agency."
 How this is accomplished will vary, BUT there should always be a written document that sets forth how it is accomplished, and what compensation structure, benefits, and laws apply to the employee. If there uncertainly about how an employee gets worker's comp, unemployment, or paid family leave, that is a sign the library and entity have to examine things a bit further.
 Or school district.
 Worker's compensation, unemployment, paid family leave, etc.
 "Comp time" is when employees can "bank" time off, rather than get paid time-and-a-half for overtime. Only municipalities who are exempt from the Fair Labor Standards Act can do that. For more on that, see "Ask the Lawyer" https://www.wnylrc.org/ask-the-lawyer/raqs/59.
 Except the Taylor Law.
 I can't emphasize this enough: even when this is the case, the library board retains the authority to hire, discipline, set compensation, promote, collectively bargain with, or terminate the employees.
 Just in case you read this and think "Oops—we may need to develop a policy!" A good breakdown and resources for compliance can be found at https://www.ny.gov/programs/new-york-paid-sick-leave.
 That said, this chart only considers the application of Labor Law 196-b. If it tackled everything, it would be...very, very long. For a good case that shows how tricky these “what is a library” issues can be when it comes to employment, check out this case.
 It will vary from place to place, but for public libraries, your civil service rep should be a great resource for this.
 And another big thank-you for agreeing to be publicly thanked.
Tags: Employee Rights, , Public Libraries, Sick Leave, FOIA/FOIL, Health Management, Public Health, Records Management, PTO, Vacation, and Leave
[NOTE: This question relates 6 NYCRR Part 351, which implements the requirements of Titles 27 and 28 of Article 27 of the Environmental Conservation Law, aka "the plastic bag ban" which went into effect March 1, 2020, but was suspended for a variety of reasons until October 19, 2020. For more information on that, see the graphic at the bottom of this answer.]
Does the NYS plastic ban law apply to libraries using plastic bags for curbside pickup?
We purchased plastic bags to hold library items that patrons request, label the outside with their name and leave the bags on pick up carts in the foyer of the building. This is for patron privacy-others cannot see what a patron has requested. As well as a COVID-19 measure-others are not touching items for pick up to search for their materials.
We are tax-exempt and not selling anything. When our supply is exhausted I will explore other possibilities in order to support less plastic waste, even if the ban does not apply to us. But in the meantime, are we in violation of the plastic bag ban if we continue to distribute materials in plastic bags?
 Found on October 21, 2020 at https://www.dec.ny.gov/chemical/50034.html
The answer for this member is: NO.
The NYS plastic bag ban does NOT apply to libraries using plastic bags for storage of items pending curbside pick-up, unless the libraries are required to collect sales tax.
So while this member's library can choose to phase out plastic bags, since it is not required to collect sales tax ("we're not selling anything"), it is not compelled to do so.
Here is what the new regulations prohibit:
351-2.1 Prohibitions. A person required to collect tax shall not:
(a) distribute any plastic carryout bag to its customers unless the bag is an exempt bag;
... [emphasis added]
"A person required to collect tax" (as if the term really needs clarification!) is defined as:
(l) ‘Person required to collect tax’ means any vendor of tangible personal property required to collect New York State sales tax pursuant to subdivision (a) of Section 1105 of the New York State Tax Law, “Imposition of sales tax.”
The trick is that the application of the law is not based on the taxability of the sale, but rather, the status of the bag distributor as a "person" required to collect tax.
This is further borne out by commentary from the NY Department of Environmental Conservation, which states:
As of March 1, 2020, all plastic carryout bags (other than an exempt bag) became banned from distribution by anyone required to collect New York State sales tax. For sales that are tax exempt, plastic carry out bags are still not allowed to be distributed by anyone required to collect New York State sales tax (unless it is an exempt bag). [emphasis added]
So, while the vendors at your library's annual craft fair (if you're able to have a craft fair, sigh), who have to collect sales tax, can no longer use plastic bags, a non-sales tax-collecting library's curbside delivery service can.
At "Ask the Lawyer," we are not used to being the bearers of good news. So just to be sure—I mean really, really sure—that we could give the above answer, I also checked the " REVISED REGULATORY FLEXIBILITY ANALYSIS FOR SMALL BUSINESSES AND LOCAL GOVERNMENTS" found on the NY Department of Environmental Conservation's web page at https://www.dec.ny.gov/docs/materials_minerals_pdf/part351rfafinal.pdf.
The "ANALYSIS" is one of the documents that drills a little more into the law, and how it will impact those it covers. It states:
In 2019, a new Title 28, “Bag Waste Reduction” was added to Article 27 of the ECL. This law bans the distribution of plastic carryout bags to customers, effective March 1, 2020, by any person required to collect tax. (“Person required to collect tax” means any vendor of tangible personal property subject to the tax imposed by New York State Tax Law section 1105(a), “Imposition of sales tax.”)
So, really: unless your library is collecting sales tax (for sales of food, or sales of items like t-shirts, office supplies, or other retail), these new requirements do not apply. But if your institution is registered to collect sales tax (for anything): beware, and "ban the bag."
Thank you for a great and timely question.
 Which, as the member states, they intend to do.
 On https://www.dec.ny.gov/chemical/50034.html, as of 10/21/2020.
 Yes, not-for-profit and education corporations that sell retail items have to collect sales tax (they don't have to pay it, but they have to collect it). For more info on that, see https://www.tax.ny.gov/pdf/publications/sales/pub750.pdf.
Tags: COVID-19, , Public Libraries
Help! We just got a very scary "cease and desist" notice from a company claiming to own the copyrights to some videos that were posted on our web site and used internally. They want $2,000 to "settle" a copyright claim, and they say we have 10 days to reply or they will sue! This notice is sitting in my in-box like a ticking time bomb, please let me know what we should do. 
 In the interest of transparency, please know that this question is an amalgam of several we've received, and not attributable to any one institution.
As the use of online tools for tracking use of copyright-protected content becomes more widespread, this is happening to schools, libraries, museums, and other cultural/educational institutions with greater frequency.
While these threats will vary based on the circumstances, here is a step-by-step "Copyright Threat Diffusion Guide" to help you de-escalate the tension and figure out what to do, from the moment an infringement threat hits your in-box.
Breathe. It's going to be okay. Make some tea, or go for a walk if you feel nervous.
Print the threat, and save a copy as a PDF with the document name "CopyrightClaim[DATE]." DO NOT FORWARD IT.
DO NOT REPLY to the threat.
DO NOT take any of the steps it demands (removal of content, paying money, saying you’re sorry, etc.). Just stay cool for a few more steps, first.
Within one business day of its arrival, appoint a "copyright claim buddy" to work with you on this. If you are a director, this is a good role for your second-in-command. If there is no other employee who can help out, loop in a board member (all of this should be over the phone, no e-mails). Just "Hello, we got a claim of copyright infringement we need to assess, I read this thing that says an organization should always have at least two people work on that type of thing, can you work with me on it?"
Hopefully, you now have a "copyright claim buddy" and you are ready to make your first decision: alert your institution's lawyer, or alert your institution's insurance carrier. Either is good.
Here's how you notify your attorney: If you have lawyer, e-mail them the pdf of the threat (cc your buddy), and write "The [library] received this on [DATE]. [NAME] and I are responsible for handling it. Are you available to help us this week on this, and if so, can you propose a budget for helping us with this? And if you can't help right now, can you recommend someone who can? We know we need to handle this promptly."
Here's how you notify the insurance carrier: If you have an agent or broker, e-mail them the pdf of the threat, and say "The [library] received this on [DATE]. [NAME] and I are responsible for handling it. Is there coverage for this, and if so, does the carrier want to respond?"
It is reasonable to expect replies within three business days.
With Step 6 done, the matter is either out of your hands as the driving force of resolution (you and your buddy will remain engaged with the carrier or the lawyer, but they will be the interface with the claimant...if they decide the threat is even worth responding to), OR you have confirmed you have no insurance coverage for this, and you haven't found a lawyer who can help you. Which brings us to...
Step 8 is the time for all the initial responses that likely hit you in an adrenalized rush when you first opened the threatening message. It includes things like:
Whenever possible, everything in "Step 8" should be either conducted by an investigation by your insurance carrier, or with the participation of your library's attorney so the findings are protected by attorney-client privilege.
Step 9 is the course of action developed based on the information established in Step 8.
Because so many variables impact it, there is no one answer or outcome to Step 9, but here are some real-world resolutions I have seen:
Taking a close look at the content, it was determined that the material in the threat and the material used by the institution weren't actually the same thing. Result: case closed with no credible threat of litigation having been made.
Taking a close look at the content, it was determined that the Copyright was not registered, and thus there was no credible threat of litigation at that time. Also, there was some room to claim fair use. Result: to be cautious, the institution removed the content, but without acknowledging the threat and with no money paid.
Taking a close look at the content, it was determined that...Oops, this institution made a mistake and used someone's content without permission to advertise a small, free event. Further, the content was properly registered, so the threat of litigation was credible. Result: insurance carrier took over and negotiated a very small settlement.
These are just a few examples, but they show the range of resolution possible when a systematic analysis of threatened copyright infringement is conducted in a calm and rational manner.
I do want to emphasize the importance of bringing in your institution's attorney. Determining the facts that position an institution to take Step 9 requires a full and frank discussion of what might have happened during Step 8. That means that unless the process is protected by attorney-client privilege, getting to Step 9 can create discoverable evidence that would have to be turned over during a lawsuit. Depending on what happened, that could be to your institution's disadvantage.
Finally: I know I started this with the admonition to "stay calm," but then included some fairly alarming things in this answer! For anyone who has read this and is now worried about content your institution has posted on its website or on social media, a nice way to allay a panic attack is to casually reach out to your insurance carrier or agent and say: "Hey, do we have coverage for alleged copyright infringement? We don't plan on infringing anybody, but it would be good to know what to do if someone claims we have."
That way, you know who to call just in case you get one of these letters.
Call it "Step Zero."
 Why do I recommend a "copyright claim buddy?" Several reasons. First, this type of thing is no fun. Second, this is a chancy world, and any one of us can suddenly get sick, in an accident, or win the lottery and quit our job. For critical matters like threatened litigation, an organization's response team should be at least two people deep. Further, it is a good development opportunity for future leadership.
 If your lawyer does not regularly handle copyright matters, they are welcome to call my office at (716) 464-3386.
 Keep trying! Don't go it alone.
 Are the facts asserted in the letter even accurate?
 If you are a state institution, there are certain protections you have; if you are a not-for-profit educational institution, there are certain protections you have; if a third party posted the material, there are certain protections you might have.
Tags: Copyright, COVID-19, , Cease and desist
What is the order of due process in a local library for employees?
Which laws/policies apply most in advocating employee rights?
Please let me know.
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….
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): 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.
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 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.
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.
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. 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, 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):
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 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?
 If I were the sort to write via emoji, I would be using the icon for “Mind. Blown.”
 That’s me.
 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.
 “Black letter” laws are those “embodied in…statutes.” Thanks, Black’s Law Dictionary! (Centennial Edition)
 Due to changes in 2018.
 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..
 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.
 And more….so many, many more…
 In layman’s terms, this means you are protected in the event you are sued for just doing your job.
 I was lucky enough to attend an excellent presentation by authors of this Guide at the 2019 NYLA Conference.
 My team is great! Every employer should have this problem.
Tags: , Management, Policy, Employee Rights, Labor
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!
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?”
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, I instead replied: “I have to admit, I am not familiar with that.”
Good thing I followed rule number one!
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.
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”). 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.
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 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 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), 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.
 When this question first put the name in my brain, the “g” was lowercase.
 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!
 As of December 8, 2019, you can see this on ResearchGate’s Intellectual Property Policy.
 Am. Chem. Soc'y v. ResearchGate GmbH, 2019 U.S. Dist. LEXIS 98372, 2019 WL 2450976.
 Yes, this is one monster paragraph within the law suit.
 As of December 8, 2019, found at http://www.ala.org/tools/ethics
Tags: Copyright, DMCA, Ethics, Fair Use, , Photocopies, Academic Libraries
With the NYS Shield Act taking effect in March 2020 what changes or precautions should libraries be thinking about to comply with the law and minimize the risk of data breaches?
There are many technical aspects to this question, and this answer will explore many of them. But first, I invite each reader to sit back, close their eyes, and envision the types of information their library takes in, maintains, or manages digitally.
Name…address…phone number…e-mail…library card number and account information. Perhaps a driver’s license, or other photo ID. Credit card information? Job applicant information, payroll, and employee data…. Donor information. Survey responses. Licensed lists. Content related to digitization. And (of course) every digital record related to a library’s core function: providing information access.
Now envision what someone with less-than-ethical intentions could do if they accessed or appropriated that digital information:
Disclose confidential library records…sell active credit card information on the dark web...use the information to design a very convincing phishing scheme….
And I bet you can easily think of more.
Scary? You bet it is. This is the type of risk-management New York’s lawmakers had in mind when they enacted the SHIELD Act, a far-reaching amendment to the state’s laws governing data security.
And as the member points out, the changes will impact your library.
So, what does this law require?
And here is where we get technical. Because the law will hit different types of institutions differently, this “Ask the Lawyer” can’t give you a word-by-word recital of the precise obligations the SHIELD Act will impose on your institution. But it can give you a plain-language DIAGNOSTIC FORM to help your board, your director, and your (internal or external) IT team a tool to start assessing your obligations.
So here, without further ado, is the ‘ASK THE LAWYER’ SHIELD ACT DIAGNOSTIC FORM. If you have a buddy to fill this in with, I suggest you invite them to help, this is not the type of exercise to do alone.
[NOTE: Any member of a library council in the State of NY is licensed to make a copy of this form for diagnostic purposes. However, THIS IS NOT INDIVIDUALIZED LEGAL ADVICE and no legal conclusion about the obligations of your institution should be made without the input of a lawyer. That said, filling this out will help that lawyer help you a lot faster.]
Does your library collect electronic versions of “personal information” as defined by SHIELD?
Here is the definition of “personal information”:
"Personal information" shall mean any information concerning a natural person which, because of name, number, personal mark, or other identifier, can be used to identify such natural person.
If your library collects “Personal information” as defined by SHIELD, it may be subject to SHIELD’s requirements.
So, if you marked “yes,” keep going!
Does your library’s network or equipment collect electronic versions of “private information” as defined by SHIELD?
Here is the type of data that, when combined with “personal information” becomes “private information” protected under SHIELD:
(1) social security number;
(2) driver's license number or non-driver identification card number;
(3) account number, credit or debit card number, in combination with any required security code, access code, [or] password or other information that would permit access to an individual's financial account;
(4) account number, credit or debit card number, if circumstances exist wherein such number could be used to access an individual's financial account without additional identifying information, security code, access code, or password; or
(5) biometric information, meaning data generated by electronic measurements of an individual's unique physical characteristics, such as a fingerprint, voice print, retina or iris image, or other unique physical
representation or digital representation of biometric data which are used to authenticate or ascertain the individual's identity; or
(ii) a user name or e-mail address in combination with a password or security question and answer that would permit access to an online account.
If your library collects “private information” as defined by SHIELD, it may be subject to SHIELD’s requirements.
So if you marked “yes,” keep going!
(NOTE: if any libraries out there are using biometric records like retina scans in place of library cards, please let me know, because that is Bladerunner-level cool).
Does the “private information” your library collects include information from residents of New York?
If your library collects “private information” relating to New Yorkers, it may be subject to SHIELD’s requirements.
So if you marked “yes,” keep going!
Is your library part of a larger institution such as a school, college, university, museum, religious institution, or hospital?
If the answer is “yes,” then STOP.
Your work on SHIELD ACT compliance should be coordinated with your full entity, who should be sensitive to not only your library’s obligations under CPLR 4509, but your institution’s obligations under SHIELD and other data security laws like FERPA and HIPAA.
Don’t go rogue!
Does your institution contract with another entity, like a library system, to maintain private information?
EXAMPLE: When a person applies for a library card, does the personal information supplied stay on the local library’s network, or does it simply flow through a terminal at the local library to a system’s network? This is a very common arrangement in NY.
If “yes” list and attach the contracts, along with the information maintained by the contractor.
This question applies to both parties.
If the answer is “yes,” gather the contract(s) governing the arrangement(s), and be ready to check the contracts for assurance of SHIELD compliance. This includes assurance of “reasonable security requirements,” and a clause governing data breach notification.
Now, aside from information maintained on another entity’s network as listed in #5 above, (library system, payroll service, credit card service provider, etc.) does your institution maintain any computer system with private information?
If yes, list the information gathered and where it is maintained:
If the answer is “no,” you only have to follow step #7, below.
If the answer is “yes,” make an appointment with your IT team, and be ready to do steps #7 through #15, too.
Contract compliance check:
If you answered “yes” to #5, above, the contracts governing that relationship would be clear about SHIELD Act compliance, including the notification procedures for data breach.
Who is the person at your institution who will do this work with your contractors?
This is a smart step because contract vendors must meet this standard:
Any person or business which maintains computerized data which includes private information which such person or business does not own shall notify the owner or licensee of the information of any breach of the security of the system immediately following discovery, if the private information was, or is reasonably believed to have been, accessed or acquired by a person without valid authorization.
Okay, so it looks like my institution has to comply with the SHIELD Act. What does that mean?
Any person or business which conducts business in New York state, and which owns or licenses computerized data which includes private information shall disclose any breach of the security of the system following discovery or notification of the breach in the security of the system to any resident of New York state whose private information was, or is reasonably believed to have been, accessed or acquired by a person without valid authorization.
So, does your institution have a policy for data breach notification?
Your institution may already have one! If so, it should be updated to reflect the changes in the law.
If it doesn’t have one, now is a good time to get a policy in motion.
The law lists the steps and requirements for notification. Among other things, those requirements can depend on the size and nature of the breach.
NOTE: a data breach response is something a library should respond to with a qualified IT team and, if there are concerns about liability and compliance, a lawyer and your insurance carrier.
Any person or business that owns or licenses computerized data which includes private information of a resident of New York shall develop, implement and maintain reasonable safeguards to protect the security, confidentiality and integrity of the private information including, but not limited to, disposal of data.
Does your institution have a policy to implement these “reasonable security requirements?”
Your institution may already have one.
If so, it should be updated to reflect the changes in the law.
If it doesn’t have one, now is a good time to get a policy in motion!
NOTE: ***I have put the SHIELD Act’s criteria for a data security program next to three asterisks in the text following this form.
Thirdly, are you a small library and feeling panicked about your security requirements?
Don’t worry, if you’re a “small business,” the law has a provision related to your obligations.
Here is the SHIELD Act’s definition of a “small business”:
"Small business" shall mean any person or business with (i) fewer than fifty employees; (ii) less than three million dollars in gross annual revenue in each of the last three fiscal years; or (iii) less than five million dollars in year-end total assets, calculated in accordance with generally accepted accounting principles.
So (deep breath) are you a “small business?”
If the answer is “yes,” then your “reasonable security requirements” are tempered:
…if the small business's security program contains reasonable administrative, technical and physical safeguards that are appropriate for the size and complexity of the small business, the nature and scope of the small business's activities, and the sensitivity of the personal information the small business collects from or about consumers.
This analysis is why having an inventory of the private information maintained by your library (or for your library) is critical; depending on the “sensitivity” (or use) of what you maintain, your plan can adjusted for what is “appropriate.”
Just to reiterate: if you have gotten this far into the assessment diagnosis, you should probably have a “data breach” plan—even if it is just for coordinating with the entity who holds most of your data.
So: do you have a “Data Security and Data Breach Notification Policy and Procedure?”
As can be seen in the factors cited in the sections above, policy and procedures related to data security and data breach notification cannot be a cookie-cutter based simply on what other libraries do. Your policy and practices will be governed by many factors.
Are you insured for data breach and recovery?
This is a great question to ask your insurance carrier! You should also be familiar with their notice requirements in the event of a hack or breach.
Who at your institution is responsible for coordinating your data security program?
This responsibility should be confirmed in a job description and reinforced with regular training. Working with your system or other larger supporting entity may be important, too.
Who are your outside contractors assisting with emergency response in the event of data breach?
This is a good standing contract to have, and one that systems and councils might consider jointly negotiating for on behalf of members (and hopefully it is a service you never need to invoke!).
Did you ever think, when you chose a library career, you’d get to moonlight in IT?
IT and libraries: two great tastes that go great together….with enough planning.
And that’s the SHIELD Act.
How does a small not-for-profit tackle this expansion of data security laws? Like anything else: inventory your status under the law, establish a goal for compliance, develop a budget and a plan, make sure the responsibility is appropriately allocated, confirm insurance coverage alignment, use all the resources at your disposal (your system, council, insurance carrier, and board members who have lived through data breach compliance) and get it done.
In practical terms, this is also means:
The penalties for violation of the SHIELD Act are $5,000 per violation, in an action brought by the New York Attorney General (the law doesn’t create a private right to sue). Other changes to the law make it easier for the AG to learn of data breaches, and to coordinate with other law enforcement agencies trying to combat them. As we envisioned at the beginning of this article, the states for a breach are high.
But don’t worry. No matter where your diagnosis falls, remember: libraries have been operating under heightened privacy obligations since before there were computers. That mindset—awareness of an ethical duty to protect privacy--is the most important part of a program to minimize the risk of breaches.
You’ve got this.
Thanks for a great question.
***A data security program includes the following:
(A) reasonable administrative safeguards such as the following, in which the person or business:
(1) designates one or more employees to coordinate the security program;
(2) identifies reasonably foreseeable internal and external risks;
(3) assesses the sufficiency of safeguards in place to control the identified risks;
(4) trains and manages employees in the security program practices and procedures;
(5) selects service providers capable of maintaining appropriate safe-guards, and requires those safeguards by contract; and
(6) adjusts the security program in light of business changes or new circumstances; and
(B) reasonable technical safeguards such as the following, in which the person or business:
(1) assesses risks in network and software design;
(2) assesses risks in information processing, transmission and storage;
(3) detects, prevents and responds to attacks or system failures; and
(4) regularly tests and monitors the effectiveness of key controls, systems and procedures; and
(C) reasonable physical safeguards such as the following, in which the person or business:
(1) assesses risks of information storage and disposal;
(2) detects, prevents and responds to intrusions;
(3) protects against unauthorized access to or use of private information during or after the collection, transportation and destruction or disposal of the information; and
(4) disposes of private information within a reasonable amount of time after it is no longer needed for business purposes by erasing electronic media so that the information cannot be read or reconstructed.
 “We just need your bank information to refund your library fees since 1987 with interest!”
 SHIELD stands for "Stop Hacks and Improve Electronic Data Security".
 Why? Well, if you’re lucky, it’s because it will be boring. But chances are, it will be all too exciting, as you discuss the different types of data your library maintains and explore the data security obligations that come with it. And if that happens, you’ll need one person filling in the form, while the other one looks up information—and you’ll both want someone to share your sense of urgency when it’s over.
 NOTE: This is a huge change in the law, which used to only apply to businesses in New York. Now it applies to any business that collects the information of New Yorkers; a big difference and one that impacts businesses out-of-state.
 Institutions subject to HIPPAA have special provisions to ensure disclosure obligations aren’t redundant.
Tags: Data, Digital Access, , Policy, SHIELD Act, Templates
Is it legal for libraries to ban smoking on all of their owned property rather than 100 feet from entrances?
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 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. “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.
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,” 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.
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!
 Here’s to you, Saratoga Public Library!
 As but one example, the Buffalo and Erie County Public Library’s Central Library has a great new “Reading Garden” in downtown Buffalo.
 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.
 My words, not Megan’s.
 I know they have enough on their plate already, but this might be something a library system can help with.
Tags: , Policy, Smoking or Vaping, Property
I need clarification about the IRS regulations on 501c3 organizations. A local political group asked to use our meeting room space for a 'meet the candidates' event, a library trustee thinks this is not compliant with the "The Restriction of Political Campaign Intervention by Section 501(c)(3) Tax-Exempt Organizations" https://www.irs.gov/charities-non-profits/charitable-organizations/the-restriction-of-political-campaign-intervention-by-section-501c3-tax-exempt-organizations
I think our meeting room policy is very out of date and restricting access to the room based on content of the meeting violates 1st amendment rights, as outlined by ALA: http://www.ala.org/advocacy/intfreedom/librarybill/interpretations/meetingrooms
No staff are involved in this event, we have not helped plan it and it was made clear on all the publicity the political group put out that the library is only the venue, we are not hosting, this is not a library program.
This answer comes with many disclaimers, because the legal parameters of room access and rental at chartered libraries in New York is variable territory. In other words: the answer can depend on the library’s “type” (set by its charter), its fundamental rules (found in the bylaws), its IRS status (the “501 (c)(3) mentioned by the member”), its day-to-day rules (controlled by policies), its lease (not all libraries own the space they occupy), and any deed restrictions (although deed restrictions on the basis of speech would bring concerns).
That’s right: education law, not-for-profit corporation law, tax law, real property law…this question has it all!
That being said, the member’s question centers on federal tax law; specifically, the library’s 501(c)(3) status, which not only makes the library tax-exempt, but allows it to receive tax-deductible donations. This status is an important fund-raising asset, and its many conditions (including not engaging in politics) cannot be taken lightly.
Here is what IRS Publication 557, the go-to for creating a tax-exempt entity, has to say about political activity:
If any of the activities (whether or not substantial) of your [501(c)(3)] organization consist of participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for public office, your organization won't qualify for tax-exempt status under section 501(c)(3). Such participation or intervention includes the publishing or distributing of statements. Whether your organization is participating or intervening, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Certain voter education activities or public forums conducted in a nonpartisan manner may not be prohibited political activity under section 501(c) (3), while other so-called voter education activities may be prohibited. [emphasis added]
Like many guides from taxing agencies, this one is superficially helpful (I put that part in bold), but upon examination, employs a disclaim that gives very little concrete guidance (I underlined that part). So, what’s a library with a spare room to do?
As alluded to in both the member’s question and my opening paragraph, this question doesn’t turn solely on the IRS. Any 501(c)(3) library that rents or allows free use of space should have a robust “Facility Use Policy” that considers not only IRS regulations, but safety, equal access, and operational priorities (requiring users to clean up after their meeting, to not be noisy, to respect the space). For a library in a municipally-owned building, care must be taken to ensure use fees are applied in a way that does not violation the NYS Constitution. And for a library that rents, the Facility Use Policy must harmonize with the lease.
But the member’s question is about 501(c)(3). So, having established that this consideration is but one of many when giving access to or renting space, here are the three things to consider when a 501(c)(3) rents or gives access to space:
1) Rental income needs to be a very small percentage of the library’s revenue.
Section 501(c)(3) requires that income from renting space can’t outweigh donations and other sources of income related to the library’s tax-exempt purpose. This is something to discuss with the library’s accountant; while rental income isn’t barred, it can bring funding ration and tax consequences that warrant the attention of a professional.
2) The use of the space can’t “inure” to the benefit of any one company or individual.
Section 501(c)(3) also requires that a qualifying organization’s resources can’t directly benefit any one person or entity more than the general public. For example, free use of the spare room by a person conducting a stained-glass workshop with an admission fee (even a nominal one), can be considered an “inurement.” 
3) As raised by the member’s trustee, the use of the space cannot violate the bar on lobbying (influencing legislation) and political activity (supporting a particular candidate for office).
And as reviewed, Section 501(c)(3) bars political activity (as further defined in the excerpt from 557, above).
“Ask the Lawyer,” has had some fairly large answers, but I don’t have space to address every occurrence that could run afoul of the bar on “political activity.” But what about renting space, on the same terms as to any other entity, to an event like the one described by the member?
Here is what the IRS has to say:
Can a section 501(c)(3) organization conduct business activities with a candidate for public office?
A business activity such as selling or renting of mailing lists, the leasing of office space or the acceptance of paid political advertising may constitute prohibited political campaign activity. Some factors to consider in determining whether an organization is engaged in prohibited political activity campaign include:
a. Whether the good, service or facility is available to candidates in the same election on an equal basis,
b. Whether the good, service or facility is available only to candidates and not to the general public,
c. Whether the fees charged to candidates are at the organization’s customary and usual rates, and
d. Whether the activity is an ongoing activity of the organization or whether it is conducted only for a particular candidate.
When developing a Facility Use Policy, if a library is a 501(c)(3) charitable organization, and wishes to be able to rent space to (among others) political organizations for event, the above-listed factors should be built right into the policy.
Here is some sample language (some of it will sound familiar):
As a 501(c)(3) organization, the NAME library does not participate or intervene, directly or indirectly, in any political campaign on behalf of (or in opposition to) any candidate for public office depends upon all of the facts and circumstances of each case. Therefore, the use of space in our facility by political organizations or for partisan political events is only available on the same rental terms as for the general public, and is subject to a rental fee that is charged equally to any political group or other individual or group. NOTE: Certain voter education activities or public forums conducted in a nonpartisan manner may qualify for a fee waiver, just as do other free and open events conducted by a charitable entity for the benefit of the public.
So, what about the member’s scenario? In the absence of a spot-on facility use policy, I suggest the following process:
If the library’s past practices make following those three steps too blurry, it is best to take a pass on this precise event, and take the time to develop an up-to-date and thorough Facility Use Policy that considers the types of uses the library will allow, and how and when it will charge for them. There are many good models out there to draw inspiration from, but before the board passes such a policy, it would be good to have it reviewed by a lawyer (who has ready the charter, bylaws, other policies, lease, deed, and any other relevant documents).
The member’s library is fortunate to have leadership that is thinking about both the first amendment and safeguarding the organization’s tax status. Good work. No matter what the final decision, awareness and commitment to these values serves your community.
 The member has stated their policy might not be suited to addressing this situation. We’ll tackle that in a bit.
 If this just caused a stab of panic because your library let’s an instructor host a “Yoga for Seniors” class for a minimum fee to the instructor, don’t worry, this event can happen…you just have to do it right.
Tags: IRS, , Library Programming and Events, Meeting Room Policy, Policy, Taxes, Templates
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!
To answer this question, I had to switch things up, and pretend that one day, there I am, sitting in my office, 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?”
If someone actually paid me for a consultation related to this conundrum, here would be my diagnostic process. For the sake of argument, let’s say that for every question I pose, the answer is, “No.”
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 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).
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.
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,” 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!
 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.
 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.
 NOTE: I would likely not take this consultation. I work with so many libraries, it would probably be a conflict of interest.
 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.”
 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.
 19 NYCRR § 212.5 “Proper attire of contestants”
 If this concept sounds foreign to you, and you work in a library, my impression is that you are in a happy minority.
 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: , ADA, First Amendment, Liability, Management, Policy
Various individuals and organizations have organized historic marker/signage installations in Buffalo over the years, including the Buffalo History Museum, the Pomeroy Foundation, neighborhood organizations, etc. Sometimes one entity, an individual or nonprofit, organizes the project while another entity, a foundation or private company, underwrites it. And then a third party is involved when it comes to installing the marker, by providing permission to use either private or public land.
My question is: whose property are these markers once they are installed?
This question reminds me of a story told by writer/actress Sarah Vowell in her book, Assassination Vacation.
When researching in Buffalo for the McKinley chapters, Vowell met a resident with scars caused by a childhood bike crash into a marker related to the McKinley assassination.
I remember reading this passage and thinking (like any lawyer would): Hmm, who would be liable for that? And of course, the answer to that liability lies partly in the question: Hmm, who owns this thing in the first place?
Unfortunately, finding the answer is not as easy as crashing your bike into a marker.
The solution starts out simply enough: property that is “fixed” to land becomes a “fixture,” and title to it runs with the land. This is why when you buy a new house, the shed, patio, and built-in grill pit (but not the moveable grill) come with it. And unless something provides otherwise, a historic marker on the property would belong to you, too.
The problem is, there are a lot of “somethings,” that could provide “otherwise.”
In New York, most historic markers, if controlled by law at all, are controlled by local law (the New York State Museum maintains an excellent summary as to why on their “Historical Markers” page). And under state law, cities, towns and villages may pass their own rules for designating, funding, and installing markers at historic sites.
Meanwhile, many private organizations exist to support the site-specific preservation of history. As the member points out, one of the major supporters of this effort is the William G. Pomeroy Foundation (“WGP”), which operated in collaboration with the New York Museum to promote projects to install signs at historic sites.
As part of that work, WGP does not condition funding on ownership of the marker (quite the contrary). That is a typical approach. However, other private funders could insist on some ownership and/or rules for maintenance—conditions that would be controlled by a contract, donor letter, or bequest.
So, while a good default answer to “Who owns a marker?” is “Generally the landowner,” the only safe answer, before some research, is “It depends.”
How can a museum, library, or other stakeholder in a local historic marker now what “it depends” on? There is no one-size-fits-all answer, but here is a process that should help:
Step 1: Confirm the ownership of the land the marker was installed on (who of course might not be the property’s occupant).
Step 2: Confirm if any easement or other real property condition controls the area of the land with the marker.
Step 3: Assess what federal state and local law(s), resolution, or permits (if any), controlled the installation.
Step 4: Assess what contractual obligations (grant document, donation solicitation documents, installation permission document, maintenance agreement, designer/creator document, etc), may relate to the marker.
Step 5 (optional, but highly recommended): Take an informal—but thorough—poll regarding who is emotionally connected to the marker, and develop a plan to consider their investment in what comes next.
I know that not all of these steps are easy to do, and that for a third party who was not involved in the installation, Step 4 might be impossible. But it remains true: to assess the status of an historical marker, you need to know its history.
As for Step 5…that is more of a “best practice” than a legal consideration. Over the years, I’ve observed that before undertaking any action that could impact a monument’s physical condition, it is best to know who will write an angry letter if you disturb the patina (or worse, remove it—even if only for a temporary cleaning). This includes not only owners, but those who feel a connection to and love for the memorial. When in doubt, it is good to exercise diplomacy! And who knows, they might chip in on the maintenance fund.
History, property law, and signage are all serious business.
Thanks for a great question.
For those considering embarking on a “historic marker” journey, here is form to help make the archivists, librarians, museum directors, history buffs, and lawyers of the future grateful to you. Every project should have a one of these cataloged, and nowadays, perhaps out there in cyberspace.
The [INSERT NAME] Historical Marker Legal Abstract and Dossier
Sponsored by [INSERT NAME OF ORGANIZATION]
This form is for use when planning and generating a final file for the development, installation, and maintenance of an historic marker. This project might not require all the items below to be completed. When an item does not apply, enter “N/A” for “not applicable.”
[Attach picture of Marker]
Address of property Marker is located on:
Owner of property at time of installation:
Survey of property with Marker location noted: [attach after noting location on copy]
Attached signed copy of agreement with property owner:
[if easement or other property right granted, attach]
Installation start date:
Installation completion date:
Insert Description of Maintenance Plan or attach copy of plan:
Is there any money held in trust or budgeted for future maintenance? If so, please describe:
Federal law passed under:
[Attach copy of law and, if relevant, resolution or permit]
State law passed under:
[Attach copy of law and, if relevant, resolution or permit]
Local law passed under:
[Attach copy of law and, if relevant, resolution or permit]
Insert name and address of Funder 1 and attach copy of funding letter, grant contract, or bequest document:
Insert name and address of Funder 2 and attach copy of funding letter, grant contract, or bequest document:
Insert name and address of Funder 3 and attach copy of funding letter, grant contract, or bequest document:
Attach copy of any fundraising solicitation:
The Marker’s designer was:
[Attached contract with designer]
If there is a graphic, who owned the copyright?
The Marker’s fabricator was:
[Attached contract with designer]
Did the Organization’s board pass a resolution regarding the Marker? If so, attach a copy.
Did the Organization enter into a collaboration agreement to organize and effect the Marker? This would include a co-sponsorship agreement, an agreement to coordinate different aspects of the project, or an effort to coordinate property ownership, permissions, or endorsements of the project.
If such an agreement was entered into, please attach.
Name of person filling out form:
Complete file with all attachments is located at____________________________.
 See the case Ritchmyer v. Morss, 5 Abb. Pr. (n.s.) 44, 1866 N.Y. Misc., among many, many others.
 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]
 Since this was an important aspect of the question, I gave the WGP a call. I was fortunate to reach Christy Fuller, who was very gracious about answering a convoluted phone call from a lawyer at 9:30 on a Monday. Christy confirmed that WGP does not condition their grants on ownership of the resulting marker.
 A maintenance plan should really be part of any historic marker installation. The application guidance from WGP, for instance, mentions this. But if every marker had a perfect plan, I bet I wouldn’t have gotten this question.
Tags: , Historic Markers, Property, Templates
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?
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?
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?
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:
(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. But it doesn’t hurt to negotiate!
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”  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.
 28 C.F.R. § 36.301 “Eligibility criteria.”
 A good resource when considering an interpreter contract is here: https://rid.org/about-rid/about-interpreting/hiring-an-interpreter/.
 I don’t mean to imply that this member didn’t negotiate. In my experience, librarians are often tough and forward-thinking hagglers.
 Undue burden means significant difficulty or expense. In determining whether an action would result in an undue burden, factors to be considered include –
Tags: Accessibility, , ADA, Policy
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!
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 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].” 
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, 259; 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) [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.  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). 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:
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.
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.
 If that library receives over $10,000.00 in state aid.
 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.
 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.
 Many, many things, the first three being: the library’s unique charter, bylaws, and fiscal policies.
 For a great breakdown on the fundamentals of library budgeting, visit: http://www.nysl.nysed.gov/libdev/trustees/handbook/chapter11.htm
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.
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?
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, does allow such inter-departmental sharing, 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 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.
And thank you.
 I was a general counsel at a university for ten years…even as the in-house lawyer, I had a few of these moments.
 The “Family Education Rights Privacy Act,” a federal law often blamed for institutions not telling families about students’ struggles sooner.
 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.
 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: , Policy, Privacy, FERPA, Academic Libraries
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.
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:
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. 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.
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).
This is why every library should have a custom-tailored 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:
If a library doesn’t have such a policy, forming an ad hoc “accessibility committee” comprised of both staff and board members, 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 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.
 An example of the consequences of non-compliance can be found here: https://www.ada.gov/sacramento_ca_settle.htm.
 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.”
 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.
 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.
 Communication Access Real-time Translation.
Tags: Accessibility, , ADA, Library Programming and Events
What laws impact a library’s next-door-neighbor relationships? Are there best practices for neighbor disputes?
There are few relationships that can be as rewarding—and as fraught with tension—as the relationship between neighbors. I have seen neighbors unite to fight for preservation of their streets historic assets, and I have seen neighbors bring law suits over shrubbery. A library is wise to cultivate a good relationship with its neighbors, just like a person would at their own home.
What laws impact a library’s relationship with its neighbors? Most libraries exist on land, or within a building, so the controlling law is called “real property” law. “Real property,” which could be land, or a building, is distinct from “personal property” (like a book) or “intellectual property” (like a logo). Although many laws impact real property, in New York, the major one would be the “Real Property Actions & Proceedings Law” or “RPAPL.”
Also impacting real property and the relationships between neighbors are: building codes, planning regulations, zoning, permitting, contract, business, and construction-related law. And of course, the education law, not-for-profit corporation law, and municipal law can all apply to how a library handles real property issues, while grant terms and donor restrictions can be relevant, too.
And if the old oak in front of your library suddenly crashes into the roof of your neighbor, insurance law may come into play, as well.
Any one of these laws—and countless others—might be considered by a lawyer advising a library if there is a concern or dispute with a nearby neighbor. But are there any general “best practices” to abide by? Based on my experience with construction, real property, landlord-tenant, and contracts—here are some simple practices for preventing, and if necessary, addressing potential neighbor disputes.
Practice #1: Know where you stand
Every library should know precisely what property they occupy, and how they occupy it. To do this, I recommend what I call a “binder solution.”
For libraries that own their own property, the binder contains:
Basically, this binder should be a one-stop shop for information relating to the library’s property and the legal relationships it has with the world.
For libraries that do not own their premises, the binder contains:
Why does all this matter? Many real property battles are lost when owners over-state or mis-portray their rights. Never initiate a property matter with a neighbor—even a seemingly simple one like a noise complaint—unless you know these documents will back you up (plus, having this material organized is just good stewardship).
Practice #2: Know your neighbor
This advice works on two levels.
The first level is obvious: know your neighbors. Invite them over. Know the names of their kids and what sports team they root for. That type of outreach is insurance against any number of serious disputes.
The second level is a bit more covert: what’s in their “binder”? Are they the owner? Are they renting? Might they be a squatter? Basically, to the extent possible, develop a “binder solution” for them, too. In getting to know them a bit better, you might develop some insights on the roots of your dispute.
Practice #3: Isolate this issue
In my experience, neighbor disputes can be some of the nastiest legal battles. I am no sociologist, but I imagine this is because when you fight with a neighbor, no one gets a break. You are alongside and--in some places practically on top of—each other, 24/7. And sometimes people are just mean…or have too many of their own problems to be able to honor another’s.
That said, if you have a potential neighbor dispute, isolate what you think the true cause might be. Is the neighbor ranting about your ice cream social signage actually angry about fines from 1989? Is the neighbor complaining about “those people parking” actually kind of racist? Is the dispute really about noise, or is the neighbor a narcotics peddler?
The point of this is: make sure you really know what’s up. That way, you can keep things professional and separate if matters get contentious, and know what type of team to assemble to handle the dispute.
Which brings us to…
Practice #4: Use a professional!
Library staff are trained to help people find information, to select and categorize library acquisitions, and to operate their library according to applicable ethics and regulations. They are NOT trained lawyers, surveyors, law enforcement, or alternative dispute mediators.
If your library is in the midst of a neighbor dispute, consider retaining a property manager, lawyer, real estate agent, or other paid expert to be the primary interface with the neighbor. Their experience will bring a better result, and the distance they lend the situation may de-personalize it and save your library staff time and stress.
Practice #5: Pick your battles!
Neighbor disputes should only be entered into if they can be won decisively, quickly, and in a way that aligns with your mission. For a community library, that means identifying an overall strategy before you start, and using only tactics that you can publicly defend.
It would be impossible to write an essay on this (although a book might be fun), but here is a chart of some typical scenarios, and how to pick your battles:
Fight the Battle?
Owns its property, and just put a new skylight in.
Is a long-term renter.
With the new skylight in, the ska music they have been blasting since 1987 can now be heard in the periodical section.
Could be in violation of a noise ordinance.
Could be a violation of their lease.
Best to first gently and informally raise the issue with their landlord; if you’re in a small town, make sure you know all the players. This could be a diplomatic (and loud) nightmare.
Rents its property, and has had the same lease since 1996.
Owns their property across the street.
After getting all the proper permits, your neighbor excavated for a new building and hit a natural spring, causing flooding in your basement and ruining a significant array books.
So much! This would call for an immediate and very well-organized response. But even before you call your lawyer, call your landlord and your insurance carrier.
You’d have to pick which battle. Moving to a new location might be more mission-aligned than staying in a potentially damaged and moldy structure.
Is a public library that has occupied the second floor of the Town Hall 1934, but there’s no lease and no one has really questioned the arrangement.
Is the Town Historical Society, who have been in the basement of the Town Hall since 1974.
The Historical Society has, without asking, recently taken over your community reading room with a display case of genealogical charts. The room was recently redecorated with a grant that requires the room be accessible to all.
The only entity with clear rights here might be
Ugh. This is the type of battle that can get ugly, quickly. Hopefully after you assess your position with a professinoal, some diplomacy and living up to any contractual obligations can save the day.
Is buying a historic property to rehab and move into.
Owns the house next door.
In surveying the property, you find out that 5 years ago, your neighbor built their fence over two feet onto your new land.
This could involve looking at the survey, searching for easements (permission to use your property), and making an inquiry of the person you bought the property from.
You have to address it, since leaving the fence there without protest could result in the property eventually becoming the neighbor’s! But be strategic and consult an attorney before you raise it externally (including with the neighbor).
My overall guidance? Send neighbors a basket of fresh fruit ever year, and when you hand-deliver it, spend 10 minutes catching up and asking about their families. It’s amazing how much ill will can dissolve over apples and pears.
Good luck out there!
 Inspired by this sentence, I checked: yes, as I am sure my readers are aware, there are libraries boats and library planes, too.
 I love historic properties and historic preservation. That said, if you plan to do this, make sure your team has at least one person who has done a major preservation project before. Those buildings are full of expensive surprises.
Tags: , Management, Property, Templates
Can a library report a crime based on use of library resources while honoring CPLR 4509 (assuring the confidentiality of circulation records)?
CPLR 4509 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:
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!”
 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.
 Note the ALA guidance on steps to minimize creating/retaining circulation records.
Tags: Policy, Criminal Activity, , CPLR 4509