RAQs: Recently Asked Questions

Topic: Filling Out Forms for Patrons - 07/08/2021
We had a patron come in this past week who said that he couldn't see well and also couldn'...
Posted: Thursday, July 8, 2021 Permalink

MEMBER QUESTION

We had a patron come in this past week who said that he couldn't see well and also couldn't type or use a mouse, but he needed to certify Unemployment Insurance. He asked the staff member to login with his username and password and do this for him, and the staff member was, understandably, uncomfortable doing it.

I feel like patrons who divulge their personal data to us are doing it of their own accord and our privacy responsibility is to not share that information with others without the consent of the patron.

In this particular case, the patron was offering his information and consenting for us to enter it for him. As such, I don't think this violates any privacy agreement we have made as employees of the library.

The part that I worry about is, could this come back on an employee if they are doing a legal filing for a patron and the filing may be fraudulent? I am optimistic by nature and like to think people have good intentions, but the reality is, I know this happens. I wouldn't want to put an employee in a sticky legal position if they filed what might turn out to be a fraudulent claim for someone.

Do you know of similar situations in other libraries and what, if any, legal ramifications there might be for employees who could be caught in the middle of something like this?

WNYLRC ATTORNEY'S RESPONSE

At first glance, this question seems simple: what are the possible legal risks to a librarian helping a patron fill out a legal document?

But within this question lies another, slightly more complex issue: when does good customer service become an accommodation for a disability?

This "slightly more complex" consideration is brought up by this part of the member's scenario:  "We had a patron come in this past week who said that he couldn't see well...", potentially meaning: the patron could not access the library services (use of the computer and internet) without assistance, because of a disability.

Of course, not every visual limit is a bona fide disability (I have to take off my glasses to read these days, but that does not entitle me, by law, to an accommodation under the ADA).  However, a patron requesting help to access a library service due to "low vision" (meaning that patron cannot view the screen even with corrective lenses), is potentially requesting an accommodation.

This is because "low vision" can be "a physical or mental impairment that substantially limits one or more major life activities," (which is the ADA's definition of a disability).

For patrons with "low vision," an ADA accommodation can take many forms aside from a human-powered solution, including:

  • Ensuring computers have increased operating system font size with large-size computer monitors
  • Screen magnification software
  • Locator dots and/or large print keyboard labels for keyboard navigation
  • External computer screen magnifier[1]

What accommodations a library chooses to offer to someone needing an accommodation to access library services will vary based on that library's size, type, served population, and (of course) budget. [2]  For some libraries, the "human solution" will be the only one available...which creates dilemmas like the one shown in the member's question.

Okay, let's press "pause" on the ADA aspect (we'll come back to it) and return to the original, simple question: what are the possible legal risks of a librarian helping a patron fill out a legal document?

The risks, of course, are that if the patron is accused of fraud, identity theft, or any other illegal activity based on the form's contents, it could lead to complications for the library (and thus, potentially, the employee).

Of course, most types of crimes based on fraud, false personation, and identity theft turn on the awareness and intent of the involved parties. Basically--and this is a big paraphrase--so long as a person can show they had no awareness or intent to help with a crime, they will have a defense against such an accusation...especially if they are performing the action as part of a duty in their job description.

But how can a library avoid such accusations against its employees in the first place?  This is where we take the ADA aspect off "pause," and consider how a library's policies can set firm boundaries for good customer service, while also facilitating accommodations for disability.

How is that done? Many libraries already have a version of this approach, but here's my plain-language version of a policy:

Library employees are here to help patrons use library resources, but librarians and library staff may not interpret, provide guidance, or fill in forms for patrons.

Patrons who need assistance filling in a form or completing a document due to uncertainty about the content are welcome to ask librarians for help locating the instructions or contact information for assistance.

Patrons who need assistance filling in a form or completing a document on the library's computer or other resource as an accommodation for a disability, please alert the Director or [insert alternate, accessible means], so the Library may act on the request per the library's ADA policy.

So, to be clear, my answer to the member's overall question is: to avoid doubt, librarians should never help patrons fill out the answers on legal forms if the help is just part of good customer service.[3]   HOWEVER, librarians absolutely can read the content and type substantive answers on a patron's legal forms if the library decides (and documents) that it is providing the assistance as part of a reasonable accommodation for a disability.

When considering employee-powered assistance as a form of accommodation, part of evaluating the request must be consideration of how it can be fulfilled ethically.  For instance, a person providing an ADA accommodation as an ASL Interpreter must follow the Registry of Interpreters' Code of Ethics[4] (or other professional association).  A person providing an ADA accommodation as a "reader" for a person who is blind or has low vision should not offer guidance or commentary on the content--their role is limited to reading, and perhaps typing, based on verbal prompts from the accommodated party.[5]  A person typing because the library's only keyboard is inaccessible to the patron and the library has no dictation software should similarly only type as an accommodation, and not offer comment or guidance. [6]

Some libraries, looking at the range and requirements for certain types of human-powered accommodations, may decide they do not have the staff capacity to provide such resources.  Others will say (and support by well-developed policy): sure, we can do that, here's how.[7]

The important thing, no matter what the decision is, is to keep a record as to why a library employee (or contractor) would assist a patron with filling out and/or submitting a confidential or legal document.  Since the only reason should be as an accommodation, that reason should be documented in either the policy (for instance, if the library has a standard service) or as an ad hoc request.

Thank you for a very compassionate and thoughtful question.



[1] Many thanks as always to the "AskJAN.org" web site, which lists common disabilities and their accommodations, including the definition and accommodations for "low vision," found here as of June 28,2021: https://askjan.org/disabilities/Low-Vision.cfm.

[2] "Ask the Lawyer" has addressed the various types of libraries’ obligations under the ADA in other answers, such as https://www.wnylrc.org/ask-the-lawyer/raqs/65 and https://www.wnylrc.org/ask-the-lawyer/raqs/142.

[3] Assistance printing, formatting, duplicating, locating a hyperlink, and in general using library technology in furtherance of completing the form is okay.

[4] Found at https://rid.org/ethics/code-of-professional-conduct/.  Are there any libraries with in-house ASL interpreters?  That would be cool.

[5] The National Foundation for the Blind has a helpful article on this here: https://nfb.org//sites/default/files/images/nfb/publications/fr/fr35/1/fr350105.htm.

[6] This is why consideration of ADA access is so critical in procurement of library resources.   As you will see on most ADA-resource sites (like AskJAN.org), most accommodations these days are powered by technology.  Although some still rely on human action (for instance, reading aloud), most do not.  A library that factors these needs into procurement decisions (buying larger screens, or adaptable keyboards) will not only model a practical commitment to ensuring access, but will reduce the need for employees to be the mode of accommodation--lowering the risk of viewing and contributing to the completion and submission of confidential/legal documents.

[7] An example of the types of accommodations offered on the "larger budget" end of things can be seen at NYPL: https://www.nypl.org/accessibility.

 

Tags: Accessibility, ADA, Privacy, Accomodations, Patron Confidentiality, Service Desk Issues

Topic: Assisting Patrons with Altering Legal Documents - 8/10/2017
It has come up at our Reference meetings that patrons are using our technology to alter documents ...
Posted: Thursday, August 10, 2017 Permalink

MEMBER QUESTION

It has come up at our Reference meetings that patrons are using our technology to alter documents such as doctor’s notes (extending days of medical excuse, for example) and our staff is increasingly uneasy about assisting patrons with this. We try our best to ignore what people have on the screen but sometimes they ask for our help with altering scanned documents, and it's impossible to pretend we don't see what they are doing. We are uncomfortable telling patrons we decline to help them based on ethical reasons, because that would show admitting we have read what is on the screen. We are somewhat concerned about liability and potential obligation to report illegal activity. What are some ways we can shield staff from having to help patrons commit fraud?

WNYLRC ATTORNEY'S RESPONSE

Wow.  There is really just no hum-drum day for librarians, is there?

Okay, let’s take this in stages.

First, the member’s question starts with the premise that the alteration of certain documents is illegal.  That premise is correct.   And although there are any number of crimes such alteration could be (depending on the type of document), here in New York, the catch-all term would be “Forgery.”  

Forgery[1] is a crime that comes in many degrees, but whatever degree, it involves the act of falsely making or altering a document (meaning the forger invented it wholly, or—as in the scenario—somehow manipulates or alters the original).  However, it is important to note that a critical element of Forgery, no matter what degree, is the intent to defraud, deceive, or cause injury.

Second, the member raises the concern that, if library staff assist a patron who turns out to be a forger, they could risk being implicated in the crime—or feel an obligation to report what they have seen.  While I found no case law addressing this precise scenario, these are valid concerns.   

We’ll start with some good news: for staff to be (legally) implicated, they would have to be aware of the forger’s criminal intent.  In other words, the staff would have to know that the person was planning to defraud, deceive, or cause injury; the mere suspicion would not make them part of a crime[2].  

That said, if the content visible on the screen makes it difficult to ignore a crime in progress (for instance, the manipulation of child pornography) or the possibility of imminent harm to another (someone changing the checkboxes on a Power of Attorney, for example), both library operational integrity, and staff well-being, may require removing personal service, removing privileges, and/or alerting law enforcement.

Unfortunately, after looking at case law, guides from the ALA, and numerous policies in the field, I could find no graceful way for staff to simply discontinue service, without telling a patron why.  Since staff assistance is in many ways as much of a right (once it is routinely provided) as access to your collection and technology, withholding it without a clear basis is a due process concern (for public libraries) and a professional ethics[3]/best practices concern (for private libraries).

That said, I can offer the following steps to making sure staff are ready to address this difficult situation: 

First, every employee and volunteer assisting patrons should have the phrase “service to patrons, in accordance with established policies and procedures” in their employee handbook, job description or volunteer letter (the wording doesn’t have to be precisely this, but the requirement of staff to follow library policies should be express).

Second, an institution providing access to “maker equipment” (computers, scanners, 3D printers, recording devices, tools, etc), should have a posted, public policy forbidding use of library equipment for illegal activity.  Something like:

 “Use of library equipment for illegal activity is forbidden. Examples of illegal activity include  but are not limited to: manipulating illegal content, engaging in forgery (falsely altering documents), gaining unauthorized access to other computers or networks, and 3D printing of illegal devices.  Staff assisting you, who suspect illegal activity, are authorized to discontinue assistance, and the library may discontinue your library access and contact law enforcement.  Patrons using technology to alter official or signed documents should be aware that such activity may be perceived as potentially in violation of this policy.”

As with any library policy impacting access and privileges (including staff assistance), such a policy should have an established procedure, and at least one level of appeal.[4]

Third, staff and volunteers should be trained[5] on how to withdraw service while honoring the rights of patrons.  A very simple policy (coordinated with current bylaws and other institutional policies before implementation[6]), such as the generic one below, could assist with balancing staff well-being with patron rights:

POLICY

It is the policy of the library that, to promote the integrity of operations, and the well-being of staff, use of library equipment and staff services in furtherance of illegal activity is forbidden.  

Staff concerned that a patron’s use of library technology may violate the law shall withdraw their services and/or patron access to the technology, per the below procedure.

In making this policy, the library re-affirms that unless authorized by law, patron records, including those generated by the use of technology, are confidential, and that users of the library technology have a right to privacy. 

In making this policy, the library re-affirms that all patrons are entitled to excellent service and access, and that such service and access shall not be removed without due process.

PROCEDURE

A staff member identifies a potential violation, withdraws from the patron, and consults a supervisor to confirm that withdrawing service and/or access is appropriate.

If the supervisor, upon further assessment, agrees that the use violates the policy, and that withdrawing service and/or access is appropriate, the supervisor will initiate the removal, and provide in writing to the patron:

On [DATE], your access to [/SERVICE/TECHNOLOGY] was removed, on the basis that the use was barred under our posted policy (copy enclosed).  This removal may be appealed by sending a letter of appeal to [PERSON], at [ADDRESS] by [DATE].   The library respects your privacy and does not require you to appeal or to provide any further information regarding this matter, unless you choose to do so.

If an appeal is filed, the [PERSON TO WHOM APPEAL IS DIRECTED] shall consult leadership and legal counsel as needed, and shall notify the patron, in writing, as to the result of the appeal within [#] business days.

If there is concern that IMMINENT HARM may be caused by patron use of technology, staff shall immediately alert XXXX, who shall determine if law enforcement must be called, or if there are any additional immediate action take, per governing procedures.

I am sorry to not have a more graceful solution, but I cannot advise that staff simply withdraw services and not return to the patron.  I have designed the above generic policy to provide a “uh-oh” moment for the patron, when they can remove themselves from a situation, and the supervisor can choose to not pursue the matter further.  This is a delicate dance on the tightropes of confidentiality and operational integrity.

Further, I have added the final clause in bold so the person in charge at the time is reminded to use the “buddy system” when it comes to making tough calls about safety, inferring criminal intent, and assessing imminent harm.  These are decisions that, whenever possible, should not be made in isolation. 

This balancing, giving a situation time to breath, and due process, are the best way to shield library staff while honoring library principles.  I hope you don’t have to use it too often!  But with more and more people relying on libraries for service beyond the traditional quest for information, I suspect more institutions will be addressing this issue.



[1] NY Penal Law 170.00

[2] Of course, a prosecutor can pursue criminal charges if they believe they can prove such awareness…and they can try and prove it by using knowledge of the content.  And for certain documents, merely altering them is a crime.  So erring on the side of caution is wise.

[3] At the heart of this question is staff who don’t want to be implicated in wrongdoing, but honor their professional ethics, including the obligations to:

 

·        Provide the highest level of service to all library users, and accurate, unbiased responses to all requests for assistance;

·        Distinguish between personal convictions and professional duties;

·        Strive for excellence via use of professional skills;

·        Protect each patron’s right to privacy and confidentiality;

  

[4] This is advised by the ALA at http://www.ala.org/advocacy/intfreedom/guidelinesforaccesspolicies, and of course is required for municipal institutions.

[5] As part of this training, staff should be alerted to the library’s policies about any signs of activity posing a risk of imminent harm (which may be a result of illegal activity).

[6] This coordination is critical.  Please don’t use any model language without considering your full suite of bylaws, manuals, policies, and procedures already in place.

 

Tags: Policy, Privacy, Forgery and Fraud, Ethics, Patron Confidentiality

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.