RAQs: Recently Asked Questions

Topic: Discarding Environmental Impact Studies - 2/8/2019
Our library has a number of older Environmental Impact Studies (both draft and finals) which are t...
Posted: Friday, February 8, 2019 Permalink

MEMBER QUESTION

Our library has a number of older Environmental Impact Studies (both draft and finals) which are taking up space, and we were wondering if we could discard them. Can a library make its own retention schedule for these or do libraries need to keep these for a certain amount of time so the public can access them?
If we can make our own retention schedule, do you have a recommendation as to how long they should be kept?

WNYLRC ATTORNEY'S RESPONSE

Draft and final Environmental Impact Studies (or “EIS”) must be accessible during the “public comment” period of a construction or remediation project.  After that, a library can discard them.

For readers who aren’t familiar with these documents: EIS are mandated reports that show the complete scope of possible “significant negative environmental impacts” certain types of projects can have.  They are produced by a project’s “Lead Agency” (generally a major figure in the project), who must ensure that copies of both draft and final EIS are made available to the public for a period of “public comment.” 

To comply with these disclosure requirements, the Lead Agency must both post the EIS on the internet, and provide a hard copy upon request.  As an alternative to providing on-demand hard copies, environmental regulations also allow the Lead Agency to place copies of an EIS “in a public library…,” where they must be available for viewing and copying during the public comment period (which is a minimum of 30 days, but can go much, much longer[1]). 

This “public comment” period is critical.  When done right, it enables clarity and transparency even when a project’s approvals span multiple agencies (like zoning boards, preservation boards, and a legislative body).  This allows the average citizen to provide timely comments about on things like environmental hazards, land use, historic preservation, and design.  So the role of the library in ensuring public access is valuable.

As the member’s question appreciates, EIS can have value even after the “public comment” period is closed.  Long after a project is complete, an EIS can reveal site conditions relevant to health and safety.  For professionals like urban planners, environmentalists, architects, and attorneys, the information in an EIS can be very useful.  And from the local history perspective, an EIS can show, decades later, what a village, town, or city perceived as a danger, asset, or cultural resource.  Coupled with building permits and variances, that information can show who was allowed to build what in a particular village, town, or city.  For this reason, I predict EIS will be important resources to the historians of the future. 

To assess if a printed EIS should be retained by the library, libraries can use their normal accession evaluation process.  One thing to consider in such an evaluation: the NY Department of Environmental Conservation retains copies of all EIS (in a manner that accords with the DEC’s own record-keeping policies).  Personally, I do think there is value in retaining the local hard copy, but as the member states, these things can take up a lot of room!

One thing that can make the entire process around EIS easier for a library is having an “EIS Acceptance Form” that is signed by the “Lead Agency” when they drop off the copies for required disclosure. Remember, use of the library is a courtesy that allows the Lead Agency to escape making numerous on-demand copies, so they should be very gracious about signing such an agreement!

I have supplied the essential elements of such a form below, and added a few non-required but library mission-centric terms to them.[2]   

The most helpful feature of this template form is the requirement that the “Lead Agency” notify the library that the public comment period is over; this way, a library can receive express confirmation of when the time to officially make the EIS available has ended, and the decision to dispose of or accession it can be made.

Thank you for this thoughtful question.

TEMPLATE EIS AVAILABILITY REQUEST FORM

The State Environmental Quality Review Act (“SEQRA”) requires that draft and final Environment Impact Studies (EISs) be posted on publicly accessible web sites by the “Lead Agency” for the project, and to provide hard copies on demand.

Regulations allow a lead agency to place copies of the EIS in a public library instead of making a large number of individual copies.  By filling out this form, you, as “Lead Agency,” are requesting that the [NAME] Library place ____ printed copies of an EIS for availability to the general public, and expressly authorize the creation of as many copies as needed by the public, to fulfill your disclosure obligations under SEQRA. 

Further Terms Agreed to By Lead Agency

As a condition of assisting with access during the public comment period, the ___  [insert number] physical copies provided by Lead Agency shall become the physical property of the Library, who shall have an irrevocable license to duplicate the EIS, in any medium now in existence or further developed. After being notified by the Lead Agency of the close of the comment period, the library may retain the physical copies, or dispose of them, at its sole discretion.

Lead Agency also hereby commits to remunerate the library for any request for a copy to be modified per ADA accessibility needs, including but not limited to conversion to braille, large print, or for use with an electronic reader.  Such copies shall remain the property of the Library.

Lead Agency will notify the library via an e-mail to [ADDRESS] when the EIS is no longer required to be available for public comment and duplication.

The Lead Agency employee or agent signing this EIS AVAILABILITY REQUEST FORM is an authorized signatory of the Lead Agency.

LEAD AGENCY:___________________________________

CONTACT AT LEAD AGENCY: ___________________________________

TITLE OF CONTACT: ___________________________________

PHONE NUMBER: ___________________________________

EMAIL: ___________________________________

PROJECT NAME: ___________________________________

PROJECT ADDRESS(ES): ___________________________________

PUBLIC COMMENT PERIOD START DATE: ___________________________________

PUBLIC COMMENT PERIOD END DATE (if able to be determined): ___________________________________

 

SIGNED ON THIS __________ DAY OF ____________, 20_____.

SIGNATURE:__________________________

PRINT NAME:__________________________

TITLE:____________________________________

 

[NOTE: Any template form should be reviewed by a library’s attorney for conformity with charter, bylaws, and current policy]

 


[1] From the “SEQRA Handbook” page 162: “The minimum public review period is thirty days, calculated from filing of the Notice of Completion. If the draft EIS is lengthy, there is delay in distribution of copies, or there is substantial public interest, the lead agency should extend the review period. In practice, the time allowed for draft EIS review is often considerably longer than the minimum. The lead agency may wish to negotiate a mutually acceptable extension with the project sponsor. If a hearing is held to receive comments on the draft EIS, the SEQR regulations require that the review period must remain open for 10 days following the close of the hearing, for the receipt of additional written public comments.”  It is not the job of the library to do these calculations!

[2] Just to reiterate: this template is just a starting place.  Any template form should be reviewed by a library’s attorney for conformity with charter, bylaws, and current policy.

 

Tags: Policy, Public Records, Retention

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

MEMBER QUESTION

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

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

My questions are:

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

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

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

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

WNYLRC ATTORNEY'S RESPONSE

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

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

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

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

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

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

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

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

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

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

Uh-oh.

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

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

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

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

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

No.

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

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

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

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

Thank you!



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

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

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

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

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

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

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

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

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

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

 

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