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: Email Retention - 7/11/2017
We are looking to determine if there is a specific time frame for which email must be held. C...
Posted: Tuesday, July 11, 2017 Permalink

MEMBER QUESTION

We are looking to determine if there is a specific time frame for which email must be held. Can we designate in a policy that email will not be considered original documents - that all original documents must be in print format?  AND if this is possible, how long then are we required to hold onto archived e-mail? 

Please also comment on how, for state institutions, this issue is impacted by the NYS Archives Schedule MI-1 Schedule, which states:

Generally, records transmitted through e-mail systems have the same retention periods as records in other formats that are related to the same program function or activity. E-mail records should be scheduled for disposition in conjunction with any other records related to the program function. Local governments may delete, purge, or destroy e-mail records provided that the records have been retained for the minimum retention established in this Schedule and are not being used for a legal action or audit.”

 

WNYLRC ATTORNEY'S RESPONSE

WNYLRC ATTORNEY’S RESPONSE

This has been a tough question to mull over!  That is because the answer is superficially “yes,” but in reality: “no.”

How do we get to this disjointed conclusion?  Schedule MI-1, as the member did, is a great place to start.

From there, although it is a bit older (in Internet years), the 2010 guidance from the New York State Archives, “Developing a Policy for Managing E-mail” (to which the Schedule MI-1 refers), speaks to this issue.  On page 7, it states:

“Another management strategy has been to rely on the “low­tech” method of printing out important emails to integrate them into a paper recordkeeping system. Printing emails is still a viable option for a small organization with limited technology support and finances, provided that individuals across the organization consistently apply records retention requirements to the printed emails, capture all essential metadata, and file the emails with their respective attachments.” [emphasis added]

This would suggest that, for certain institutions, under certain circumstances, e-mail does not need to be retained in its original form to be an “original document.”

However, while it would be elegant, I cannot endorse this approach.  As the guidance further states on page 13:

“The concept of “official copy” is problematic when dealing with email because of the volume of emails, the difficulty of controlling all copies, and the occasional need to prove an email was received as well as sent.” [emphasis added]

Since 2010, even more concerns make this a dubious solution. For a private institution, the requirements of accreditors, insurance carriers, and other stakeholders must be considered…while for libraries and archives that are part of local governments, per NYS regulation, the conversion of archival electronic records must be conducted in consultation with the State Archives, who may or may not endorse such a policy, based on the categories of documentation it would impact.

That said, for certain categories of documentation transmitted or received as e-mail (as defined by MI-1 or private policy), the “print approach” may work.  As a wholesale solution, however, it is not legally viable.

Tags: Policy, Retention

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