MEMBER QUESTION

I am looking for general information on the possible impact of Payment in Lieu of Taxes (PILOT) agreements on library tax levies. I believe that in some instances public libraries are parties to PILOT agreements. In other cases, library levies are stated or implied exceptions to PILOT agreements; and the company with the PILOT agreement pays the library levy like any other taxpayer; as a separate payment based on the property’s assessed value. Are there differences based on the type of public library? Or differences based on the taxing entity: special district, town or school district? Are there provisions in the legislation authorizing PILOT agreements or in Real Property Tax Law that impact library taxes and PILOT agreements?

 

WNYLRC ATTORNEY'S RESPONSE

A firm principle of this service is "don't reinvent the wheel" so here at the start of the answer, I must refer readers to Jerry Nichols' 2005 article, "PILOT Payments--a potential revenue source for public libraries."[1]  The article is an excellent primer on what a PILOT agreement is, and how libraries should cultivate the awareness and use of them (and verify they are getting their fair share of PILOT money!).

The question above asks about the impact of a library's "type" on the ability to benefit from a PILOT; that issue is not addressed by the 2005 article.  So, with the understanding that there is already some good foundational information out there on PILOTS and libraries, this answer will explore that angle.

So, to start: what is a PILOT?

A "PILOT" agreement is a formal arrangement to pay money "in lieu of taxes" by an entity not subject to real estate taxes (such as a new business park, recreational project, or educational facility).  The acronym "PILOT" is used formally (and properly) in connection with regional "Industrial Development Agencies" (or "IDA"'s) who are authorized by law to create them.[2]

The term "PILOT" is also informally (and improperly) used to refer to other types of payments by tax-exempt entities who are trying to cultivate a good relationship with their local municipality.[3]  This answer only addresses the "real" type of PILOT.

When functioning as intended, a PILOT for a development project can ensure that a municipality or school district that uses real property taxes to fund critical services (such as local roads to a new business park, recreational project, or educational facility) has revenue to maintain the critical services, even as some large users don't pay for them in the same way.[4]

Done properly, a PILOT Agreement creates conditions favorable for economic development (exemption from real property taxes while an initiative creates a benefit to its community), but creates and enforces a fair, reliable, and fiscally sound way to replace critical funds.

So, a PILOT is all about the money--money for a town or village, money for a school district, and money of other things powered by real property taxes.  And as Mr. Nichols' article points out, when they are being negotiated, sometimes the "powers that be" can leave out the local library.

Which brings us to the member's insightful questions:

• Are there differences based on the type of public library?
• Or differences based on the taxing entity: special district, town or school district?
• Are there provisions in the legislation authorizing PILOT agreements or in Real Property Tax Law that impact library taxes and PILOT agreements?

When it comes to formal PILOTs, the answers to the member's three questions are:

Yes, but...

Yes, but...

Yes, but...

We'll address those three "buts" all together.[5]

To not get overly technical[6], projects that qualify for exemption from real estate taxes and a PILOT gain their exemption from the Industrial Development Agency (the "IDA") sponsoring the project.  So it is the IDA's tax status, not a particular project's, that creates the exemption from real property taxes.

When it comes to library revenue derived from real property taxes (which IDA's are exempt from) different type of libraries have different types of ways to get tax revenue.   Some municipal libraries simply have a budget in their tax-funded village/town/city budget.  Others have their own municipal levy (a "414").  Still others have a separate budget line on their school district tax bill (a "259"). 

There are any number of permutations of this, but the important take-away here is: a project exempt under GML 854 is immune to real property taxes under any of these approaches.

This is where things can get tricky (and, I suspect, is the genesis of our astute member's questions).

GML 854 authorizes PILOT using the following definitions:

(1) “Agency”—shall mean an Industrial Development Agency created pursuant to this act.

(16) “Affected tax jurisdiction”—shall mean any municipality or school district, in which a project is located, which will fail to receive real property tax payments, or other tax payments which would otherwise be due, except for the tax exempt status of an agency involved in a project.

(17) “Payments in lieu of taxes”—shall mean any payment made to an agency, or affected tax jurisdiction equal to the amount, or a portion of, real property taxes, or other taxes, which would have been levied by or on behalf of an affected tax jurisdiction if the project was not tax exempt by reason of agency involvement.

A plain reading of the definition of "affected tax jurisdiction" could inspire someone to say "This means PILOT only applies to a 'municipality or school district', not the library, or a special library district."

A library-aligned, thoughtful reading of the definitions could inspire someone to point out: "Payments in lieu of taxes can go to not only a 'municipality or school district', but to an "agency" to replace taxes "which would have been levied by or on behalf of an affected tax jurisdiction.  Meaning: an IDA can require, accept, and distribute money to other entities deprived of revenue due to the exemption, if that tax would have been levied by a municipality or school district.

This is borne out when one reviews the NY Comptroller's audits of IDA PILOTs.  For instance, in a 2021 audit of Glen Cove's IDA[7], it was found that PILOT payments that should have been directed to a school district public library were not properly channeled to the library.

While the rules of PILOTS will vary between IDAs, I would that argue the law positions ANY type of library (even an association library) that benefits from a real property tax levy to benefit from PILOT.

Which brings me to the tricky part.[8]

Not too shockingly, dealing with a local IDA can be...improvisational.

Don't take my word for it.  Here is what the New York Comptroller has to say:

"IDAs have a substantial degree of discretion over how PILOT agreements are negotiated, and the criteria used to determine PILOTs differs among IDAs. Such inconsistencies, according to critics, can cause IDAs to compete against each other for business.

In addition, due to unclear PILOT agreements negotiated by IDAs, poor communication with assessing bodies and a lack of monitoring, projects often fail to pay the full amount of PILOTs and thus deprive taxing jurisdictions of needed revenues.

...

Although they are required to adopt a uniform tax exemption policy, IDAs are allowed to deviate from that policy. In these cases, an IDA must explain in writing why there is a need for deviation and notify the affected taxing jurisdictions."

They key is to learn your local IDA's approach, local policy (if any), and to get in line early and regularly as the PILOT is negotiated, formalized, and complied with (this means: get ready to have coffee with your local public and IDA officials).

Because a PILOT can be a significant source of revenue for a local library, this is one where local legal counsel--well versed in the local IDA's way of doing things, or willing to "go deep" and develop that knowledge on the fly--can be worth budgeting for and retaining.

As I have written in another ATL[9],  any use of legal counsel--even if pro bono--should be per a written retainer agreement that confirms the scope of the work.

In the case of an attorney working to help a library negotiate PILOT, a sample scope is:

To represent the Library before the [INSERT NAMES] IDA(s); and 

To assist the Library in monitoring when opportunities for inclusion in PILOT agreements arise; and

To identify and develop timely strategy for securing payments via PILOT in agreements; and

To represent the Library in finalizing benefits under PILOT agreements; and

To assist the board of trustees in monitoring compliance with PILOT payments owed to the Library, and include a summary of such monitoring in the library's annual financial report.

This type of scope for any attorney should not "break the bank;" while there is no way to truly project the hours such work would take, 15 attorney hours per negotiated agreement is not unreasonable, and 3 hours per year to assess compliance is not out of line, either. 

This is an area where any attorney experienced in municipal law--and willing to do their homework on your particular library--should be able to help.  Further, and more critically, as the Comptroller's commentary shows, there is a high degree of subjectivity and flexibility in IDA PILOT agreements, which means a local attorney may have a significant advantage for timely inserting a library into an ongoing PILOT negotiation process.  The right lawyer will know the folks at the relevant IDA, or be willing to get to know them, and will consider (among other things) the following:

• As a result of State legislation passed in 1993 amending section 874 of the General Municipal Law, each IDA is required to establish a “uniform tax exemption policy with input from affected tax jurisdictions … and shall provide guidelines for the claiming of real property, mortgage recording, and sales tax exemptions.”
• The guidelines must include: the period of exemptions; percentage of exemptions; types of projects for which exemptions can be claimed; procedures for payments-in-lieu-of-taxes and circumstances under which real property appraisals are required.
• Although they are required to adopt a uniform tax exemption policy, IDAs are allowed to deviate from that policy. In these cases, an IDA must explain in writing why there is a need for deviation and notify the affected taxing jurisdictions. While approval by these local governments is not required, the IDA is obliged to review and respond to any issues raised by them.

Thank you for an excellent question!  I wish you good fortune in working with your local IDA.

 

 

MEMBER QUESTION

[Our library directors] group had a discussion about sharing information about patrons who have been barred from a library within the System using the notes field in the patron’s library record. It was suggested to put it in the non-blocking note field within the record. This will make the information available to all library staff within the library system. Are there privacy concerns?

 

WNYLRC ATTORNEY'S RESPONSE

Before I answer, I want to share a story.

A few years ago, I worked with a museum as they addressed the criminal prosecution and sentencing of a man who--in the guise of a volunteer--violated the trust of the institution, and later, when called into account for his behavior, initiated a campaign of verbal/written intimidation against the museum's employees (and trustees, and lawyers, and even his own lawyers).

As part of the former volunteer's sentence, and then his parole, he was restricted from any place with an archive.  During that time, I worked with the parole officer to make sure they had a good working understanding of what "with an archive" meant.

After the sentence and parole period expired, the person was returned to society, where state law requires that a past conviction can NOT be used to peremptorily deny a person certain opportunities (although after a careful analysis of precise factors, conviction can be considered before offering employment or a volunteer position[1]).

As the story and criminal conviction were widely reported in the news media, alerting other potentially vulnerable institutions to this cautionary tale was very easy; simply sending a link with "FYI" was enough to put an institution on notice of the past occurrence and position them to make a well-informed decision.  Any person who wanted further information could dig right into the court record, rather than rely on a second-hand account.

This ability to refer to the public record reduced, but didn't eliminate, the legal risks created when one institution "warns" another about troublesome visitors/customers/patrons.

Those legal risks include:

• The risk of a defamation claim;
• The risk of a civil rights claim;
• The risk of a claim called "interference with contract."

But what about when problematic behavior does not come with any media coverage or court filings?  What if it is confined to findings under a library code of conduct?  Can libraries within a regional system share information about particular patrons?

Yes, they certainly can, but just like applying a code of conduct within a library, certainly ethical and legal considerations apply.

To bar a patron, a library must follow its Code of Conduct, ensure the patron accused of wrongdoing gets due process ("due process" will vary a bit from library to library), and ensure the process and decision are properly documented and communicated to the patron.

As library professionals throughout the state of New York know, library patron records (which include Code of Conduct findings and consequences) are confidential, both per the ethics of the profession, and the law.

The law provides:

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.

If a library determines that the "proper operation of such library" is served by including the fact of the bar or restriction, then, so long as it is consistent with System policy[2], the information may be included in the notes as described in the member's question.

Of course, a patron of the System who is so designated has several avenues to challenge an inaccurate or unfair entry, including the type of claims I list above.

To avoid that, individual libraries making such entries should take care that:

• Any ban or restriction is the result of a policy decision;
• The patron was accorded all due process throughout the decision-making process;
• The decision-making and due process were well-documented;
• The entry into the system is minimal (effective date, sanction, and end date), with no color commentary/personal details.

Libraries wishing to document such determinations in their System should limit the information to "Starting DATE, Patron barred from ABC library until DATE" or "Patron privileges suspended at ABC library until DATE."

If a patron's behavior results in a criminal report, conviction, or other legal documentation, reference to the documentation is also a good idea (for example, "See ABC Policy Department Report #XXXX).

For patrons whose behavior is threatening or abusive to such a degree it warrants pro-active action (access restriction) beyond one library, a cooperative library System may, through policy and due process, effect System-wide restrictions. 

So, to answer the question:

 ...This will make the information available to all library staff within the library system. Are there privacy concerns?

...the answer is yes, but with care, those concerns are only priorities, not problems.

That is the benefit of being part of a cooperative system.  By using policy to consider both the civil rights of patrons (including privacy concerns), and the safety of workers and operational needs of each member library, the right balance can be achieved, and documented.

 

MEMBER QUESTION

A town municipal public library has been told by the town that the library cannot have a donate to the library button on the library's website. The library hosts its own website, and the donations would go into a library checking account.

The town feels that the library will be seen as fundraising. Is there a comptroller's opinion or NYS Law that states municipal town libraries (or school district or special district) libraries cannot ask for donations on its website?

Thanks

 

WNYLRC ATTORNEY'S RESPONSE

There is no legal authority in New York that denies the ability of a town public library (or any municipally affiliated public library) to solicit donations.

There is no law that bars it.

There is no regulation that bars it.

There is no comptroller opinion that bars it.

There is no attorney general opinion that bars it.

There is no case law that bars it.

Now, despite all that lack of barring, there ARE many reasons why libraries funded by tax dollars, and operating in conjunction with a municipality, may want to avoid the general solicitations of donations (some previous "Ask the Lawyer" RAQs on this issue is here: https://www.wnylrc.org/ask-the-lawyer/raqs/282,  https://www.wnylrc.org/ask-the-lawyer/raqs/68 and here: https://www.wnylrc.org/ask-the-lawyer/raqs/25). For those reasons (and maybe ten more I could name after a strong cup of coffee), I always strongly urge public libraries who wish to solicit donations to have a precise, defined purpose for soliciting donations...something that is distinct and separate from the core operations of the library.

For example, if the library would like to sponsor local artists to create window displays related to new books and programming, a solicitation could be "Donate to our local artist window program!" Or if the library wanted to solicit funds for extra activities, a solicitation could be "Donate to our 'Kids Jumping into Reading' 2023 fitness program!" Or if the library wants to create or grow an endowment, it could be "Assure our future, donate to our endowment fund!"[1]

And of course, regardless of the purpose, any library receiving donations must be set up to receive, track, and expend the donations per proper fiscal controls. If the money is for a specific purpose (as I have suggested it be), the accounting mechanisms to show it was only expended for that purpose must be in place before the money is solicited. If the money is being solicited online via credit card or other electronic means, care should be taken to select a processor that the library's financial institution regards as secure.

Solicitation of donations are how public libraries can grow non-essential programs, amass a capital funds, and plan for long-range strategic objectives. The extra conditions non-association libraries face when it comes to using donated money--controls on procurement, criteria for investment, and the interplay between public and private money--is why many public libraries designate Friends groups to solicit funds for "extras."

But while a public library may determine that such solicitation is best left to an affiliated not-for-profit, so long as they have the right policies and fiscal controls, there is no bar to a public library receiving donated funds, and no bar on asking for them... or enabling such a request by putting a "donate" button on the library website.

Thank you for a great question.

 

 

MEMBER QUESTION

For public libraries that must comply with Freedom of Information Law (FOIL), how does FOIL impact our organization's use of social media? What sort of social media records can be FOIL-ed and what are some best practices for using social media in regards to FOIL?

 

WNYLRC ATTORNEY'S RESPONSE

This is a timely question, because New York's Committee on Open Government (the authority on all things FOIL), has recently stated[1] that not only do public libraries have to follow FOIL, but cooperative public library systems have to, as well. So, the answer will be useful for libraries and library systems[2] alike.

NOTE: For those of you who need a quick primer on FOIL to get the most of this question: FOIL is the state law requiring timely public access to public agency records (with exceptions). As you can imagine, complying with this obligation requires a clear understanding of what constitutes a "public agency" is, what a "record" is, and what any exceptions might be.

FOIL defines a public agency record as “any information kept, held, filed, produced or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever…” FOIL §86(4).

There is the potential for financial costs for agencies that fail to make timely and compliant FOIL disclosures.[3]

Further guidance on FOIL is available at https://opengovernment.ny.gov/freedom-information-law.

Before we dive deeply into this question, aside from the above small primer on FOIL, it is necessary to consider what "social media" is, in the FOIL context.

When websites were first developed and published by local governments (and libraries), the phrase "social media" was not used to refer to them.

Since that time, government agency use of not only web sites, but more socially interactive utilities like Facebook and Twitter, has exploded. From public "state of emergency" announcements via Twitter, to town council meetings streamed live via Facebook, government use of social media is rampant.

Despite this explosion, the phrase "social media", as used today, is not legally defined. Most critically, the phrase "social media" is not found in the LGS-1[4], which in New York's comprehensive list of record "types" that are subject to mandatory retention.[5]

Among other things, this means there is no one catch-all obligation to retain (and thus have them around to have to disclose) records posted via social media. Which means that instead of focusing on the medium (social media) we have to focus on the message (the "type" of record the social media is being used to create and/or transmit).

While certainly not the exclusive "type", the LGS-1 category social media is mostly used to create and/or transmit is type #68: "Public Relations".

Here is how the LGS-1 categorizes public relation records and sets their retention periods:

Public Relations 68 CO2 11, MU1 11, ED1 11, MI1 11

Official copy of publication, including newsletter, press release, published report, calendar, bulletin, recording, homepage or other website file, educational or informational program material prepared by or for local government, and associated consent forms.

NOTE: Specific publications are listed in other places in this Schedule. Before using this item to determine the minimum legal retention for a publication, determine if that publication is covered by a more specific item.

a

Publications which contain significant information or substantial evidence of plans and directions for government activities, or publications where critical information is not contained in other publications: RETENTION: PERMANENT

b

Publications where critical information is also contained in other publications or reports, publications which document routine activities, publications which contain only routine information, or publications (such as webpages) that Local Government Schedule (LGS-1) General Administration 15 facilitate access to government information on the Internet: RETENTION: 0 after no longer needed

NOTE: Appraise these records for historical significance prior to disposition. Records with historical value should be retained permanently. Local governments should consider permanent retention of samples of publications covered by part "b" of the above item. Contact the State Archives for additional advice in this area.

What does this quote mean? Among other things, unless a library is using a social media publication to be the "official copy" of news, it does not have to retain the copy.

And if the copy of the social media post is not retained, it is not available to be disclosed per FOIL (although the official copy might).

So, with all that established, let's re-visit the member's questions:

For public libraries that must comply with Freedom of Information Law (FOIL), how does FOIL impact our organization's use of social media? What sort of social media records can be FOIL-ed and what are some best practices for using social media in regards to FOIL?

Considering that the LGS-1 confirms that libraries are not obligated to retain everything posted on social media, but FOIL requires that if the record exists and is subject to FOIL, the library must disclose it, I will boil the answers down to 4 very simple things:

1. The library should have a FOIL compliance policy.

Why?

This will ensure the library has the right system and designated personnel for receiving, evaluating, replying to, and considering appeals of FOIL requests.

For more information on putting a policy in place, see the "model rules for agencies" at https://opengovernment.ny.gov/freedom-information-law#model-rules-for-agencies.

2. Social media should never be the sole copy of a notice or publication put out by a library.

Why?

If it is, the social media content may be subject to a "permanent" or a defined period of retention, even though the library doesn't control the means of publication (thus creating more work to properly retain the copy). This means that when the record is requested under FOIL, the Library had better be able to provide it, even if the social media provider is no longer in business, or for some reason, the content is no longer in existence.

3. Every public library[6] should have a records retention policy that tracks its obligations as set forth in the LGS-1 and sets the retention periods and purge times for routine records.

Why?

First, it's the law.[7]

Second, using the LGS-1 forces your library to consider what "type" of records it is generating and what retention periods apply to them--including records generated on and/or being pushed out by social media.

Third, but just as critically, it will encourage your library to purge or formally archive records no longer actively needed, minimizing the content to be disclosed under FOIL.

Fourth, it will better position your library's FOIL officer to timely respond to requests.

And fifth (but of the most relevance to the questions) it will enable your library to determine what, if any, of its social media content must be retained and thus ready for disclosure under FOIL (hopefully not much).

4. Whenever possible, the library should use its own media for primary communications, only relying on social media for secondary "boosting" of content.

Why?

This will make sure the primary copy the library is obligated to retain (if the LGS-1 requires retention) is controlled by the Library, making it simpler to fulfill a FOIL request.

5. The Library should only use its own social media (not accounts belonging to employees) for creating library records.

Why?

Because if the library relies on social media owned by employees and doesn't take care to generate in-house primary copies of certain records, the content generated by the employee could be subject to FOIL (for an example of how that can happen, see the COOG commentary FOIL AO 19732, found at https://docsopengovernment.dos.ny.gov/coog/ftext/f19732.htm).

Still with me? Have I lost you in the morass of FOIL and LGS-1? Hang in there!

I realize this is getting rather complex. So here are some practical examples of social media messages a library might post, and how that post might play out under the lens of FOIL, LGS-1, and other factors.

Social media message	Places where message is published	Publication a record subject to FOIL?	Retention period of record(s)	Considerations
Twitter post: "We have a new director!" with a link to more information about the new director on the library website.	Library website   Library newsletter   Twitter	YES for all.	Twitter post: 0 after useful   Library website: 0 after useful Library   Newsletter: Permanent	If only Twitter was used, the retention period of the announcement via Twitter would be 6 years.   Regardless of format, each version of the record is subject to FOIL.
Facebook post: "You can find the proposed 2023 budget here [link to library website]"; post also found in a link on an employee's page, as they discuss the budget process on their personal account.	Library Facebook page   Library website   Hard copy of proposed budget available from library circulation desk upon request   Copy of proposed budget posted with board materials per OML.	YES for all.	Twitter post: 0 after useful   Library website: 0 after useful   Library newsletter: Permanent   Library budget: Permanent   Board packet with budget information: Permanent	The budget and meeting materials must be retained per the LGS-1; all the records available to the Library are subject to FOIL, but there is no obligation to retain the Facebook post.   Meanwhile, as they are not an official publication by the library, the link and commentary by the library employee is not subject to FOIL or any retention requirement.
Library Instagram post: "Look at this blank wall and imagine seeing a smiling face next year! The Library is applying for a variance to enable a drive-up window for pick-ups and returns; a hearing before the Zoning Board will be held on DATE," with link to hearing notice and renovation plans.	Boosted notice and link to materials: Instagram   Copy of building plans and notification of Zoning Board of Appeals meeting, along with proof of publication and mailing to neighbors and community as required by local law.	YES for all.	Instagram post: 0 after useful   Building permit documentation: permanent.   Proof of mailing and publication: varies (see LGS-1).	When mailings and publication of public notice are set by law, a library should ensure the precise publication requirements are followed; social media can supplement awareness but cannot replace required means of notice and publication.
Tweet from the library: "After review as required by policy, the Library has determined that the book "Gender Queer" is properly included in the catalog."	Library Twitter account   "News" section of library website   Library also has a record of complete decision-making process	YES to all.	Tweet: Because it is not the only means of notification, only for so long as useful.   Announcement on web site: Because public relations record is redundant to case file, only for so long as useful.   Actual record of decision: 6 years, but per LGS-1, consider archiving for future reference after retention period has expired.	This is one to consider carefully.   If the library's Twitter is set up to encourage extensive discussion of the decision, the library should consider archiving the Twitter content, as it will be subject to FOIL and may be of archival value.   However, while the Twitter content may be subject to FOIL for so long as it exists, if not archived nor accessible, there is no obligation to save it, and thus no concern that it was not properly stored.
Doodle poll linked from library's Facebook post: "Should we add a children's story hour at 6PM on Saturdays?" Poll solely conducted on Doodle, announced only via Facebook.[8]	No other primary publication.	YES.	Retention period: because this arguably falls into LGS-1 category 603 ("Program and exhibit file documenting planning and implementation of programs"), 6 years.	When planning library events, a file containing the full record should be kept--including a screen shot or image copy of the social media process at the time it was used--so disclosure per FOIL can be affected without having to return to an old social media post or other third-party resource.
Not a message, but social media information requested per FOIL:   List of usernames blocked from the Library's Twitter account.	Let's consider 3 scenarios:   1) the library only maintains the list on its Twitter account;   2) the library maintains a list, drawn from its Twitter account, in a "social media management" file;   3) The library blocks usernames only if they do not follow the Library's Code of Conduct with respect to social media; the list is kept with other "Code of Conduct" records.	YES to all forms.	Retention period: as set by library policy, either specifically or using a catch-all period.	The documentation of a decision to bar a username (or names) from the library's Twitter will be subject to FOIL; however, what the record looks like will be determined by how the library reaches and then documents that decision.   If the Twitter account is active and the printout of the lists can be obtained, that can be subject to FOIL; but if another record provides the information, the printout from Twitter might not be needed to fulfill the request for information.

When considering the examples above, and the member's questions, the important take-aways are:

• Know what records the library has; and
• Have a good system for disclosing those records upon request (if they are subject to FOIL).

In each of these examples, it should be clear that reliance on third-party social media to house the sole copy of the FOIL-able record is not the optimal way to do business. On the flip side, no fancy software is needed to archive contemporaneous social media records; rather, libraries should be using their record retention policies to determine how their records are generated, and how they are managed to be ready for disclosure under FOIL.

With a little planning, this can be done economically and in a way that furthers the library's commitment to information access and transparency

Thank you for hanging in there with me on this one! May all your FOIL requests be clear, and all your social media be impactful.

Below are the retention periods set by the LGS-1, specifically for libraries.

591 CO2 340, MU1 304, ED1 165, MI1 254

Incorporation, chartering and registration records: RETENTION: PERMANENT

592 CO2 341, MU1 305, ED1 158, MI1 255

Accession records: RETENTION: 1 year after accessioning procedure becomes obsolete NOTE: Some libraries accession manuscripts, rare books and special collections, but not their general library holdings. In these cases, the accession records need to be retained only for the kinds of materials still accessioned.

593 CO2 342, ED1 166, MI1 256

Informational copies of records prepared by and received from public library system, including but not limited to directories, minutes, budgets and reports: RETENTION: 0 after superseded or obsolete

594 MU1 306

Directory of public library system and member libraries, prepared by public library system (member library's copy): RETENTION: 0 after superseded or obsolete

595 Library card application records: RETENTION: 3 years after card expires or is inactive

596 CO2 343, MU1 307, ED1 159, MI1 257

Borrowing or loaning records: RETENTION: 0 after no longer needed

597

Interlibrary loan records, including requests to borrow or copy materials from other libraries, receipts for materials, copy logs, accounting records, and circulation records

a When no copies of original materials are requested: Local Government Schedule (LGS-1) Library/Library System RETENTION: 0 after no longer needed

b When copies of original materials are requested: RETENTION: 5 years after order is completed

598 CO2 344, MU1 308, ED1 160, MI1 258

Catalog of holdings

a Manuscript or published catalog: RETENTION: PERMANENT

b Continuously updated catalog: RETENTION: 0 after superseded or obsolete

599 CO2 345, MU1 309, ED1 161, MI1 259

Individual title purchase requisition which has been filled or found to be unfillable: RETENTION: 1 year

600 CO2 346, MU1 310, ED1 162, MI1 260

Records documenting selection of books and other library materials: RETENTION: 0 after no longer needed

601 CO2 347, MU1 311, ED1 163, MI1 261

Library material censorship and complaint records, including evaluations by staff, patrons' complaints and record of final decision: RETENTION: 6 years after last entry NOTE: Appraise these records for historical significance prior to disposition. Some library censorship records deal with serious constitutional issues and may have value for future research.

602 CO2 348, MU1 312, ED1 164, MI1 262

Patron's registration for use of rare, valuable or restricted non-circulating materials: RETENTION: 6 years

603

Program and exhibit file documenting planning and implementation of programs, services and exhibits sponsored or co-sponsored by the library, including but not limited to photographs, sketches, worksheets, publicity, brochures, exhibit catalogs, inventory lists, loan agreements, correspondence, attendance sheets or registration forms, and parental consent forms:

a Parental consent records: RETENTION: 6 years, or 3 years after child attains age 18, whichever is longer

NOTE: Photo release records are covered under item no. 68 in General Administration section. Local Government Schedule (LGS-1) Library/Library System 156 b Attendance sheets and registration forms, when no fee is charged: RETENTION: 0 after no longer needed c All other records: RETENTION: 6 years after exhibit closed or program ended NOTE: Appraise these records for historical significance or value for collections documentation prior to disposition. Some of these records may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice.

 

MEMBER QUESTION

Our local public library has started a collection of donated yearbooks from the high school. They requested to receive or purchase new yearbooks as they were published. As the yearbook contains underage students, information about their sports and clubs, we felt that this was protected personal information and should not be publicly accessible. The understood "agreement" when participating in the yearbook implies that this publication is available only to the current school population. People who are not enrolled, employed, or related to a current student have theoretically been ineligible to purchase a yearbook (it really doesn't come up so no formal policy is in place). We feel that it is a mismatch between telling students to not share personal details and then willingly handing over a roadmap of what meetings and practices they will be attending. Thank you!

 

WNYLRC ATTORNEY'S RESPONSE

I appreciate the care behind this question: when yearbook information is being assembled, not many people are thinking about all the places the publication could potentially go.

Whenever I get a question related to a yearbook, the first thing I do is check my legal research service to see if there are any new yearbook cases[1] in the New York State or federal courts. It's a chance to check on the latest in a niche area of case law, as well as to make sure I am working from the most current information.

Every time I check with the list of cases, I am reminded that while most people bust them out every so often for nostalgia or period-specific hairstyle mockery, one of the most frequent uses of yearbooks in the legal world is the identification of potential criminal defendants.

That's right. There are numerous cases[2] that show that in addition to a police station photo-array and a classic lineup, trotting out the high school yearbook is another way for people to seek out suspects in criminal matters.[3]

All to illustrate the member's very real concern: yearbooks, which can be used to directly and indirectly convey so much information about students, do not remain in school and student hands, and are not used exclusively to travel down memory lane.  They can be given away, they can be sold, and they can end up in police stations...perhaps by route of the public library.

Does that mean the library shouldn't house them?  Not from where I sit, but I do think some reasonable precautions to guard against releasing information about minors could be taken.

Schools[4] who wish to take such precautions can do the following:

1.  Register the copyright of the yearbook to the school.

2.  Include a copyright notice and a "reservation of rights clause"[5] in the published hard copy version, barring duplication for any purpose whatsoever.[6]

3.  Remind (it would be largely ineffective to require) students to keep their copy safe at home[7];

4.  If requested, provide a copy to the public library with the condition that the copy will not be in circulation and certainly not be digitized until a year after the earliest class featured in the book has graduated (i.e., if the books' youngest students are in class of 2030, the book should not be in circulation until 2031);

5.  Ask if the book could always be in a "special collection" that does not leave the library and cannot be scanned[8] (either forever, or until a specific date);

6.  If advertisers or sponsors require a copy of the book, make sure the advertising contract limits their use of the book to things that don't risk the privacy of the students (no leaving the display copy at the bar in the restaurant who bought an ad).

In this day and age, it can seem almost quaint to worry about the risk that over-exposure of yearbooks poses to privacy. But as the member points out, the information that can be gleaned from a yearbook can reveal things about a student's identity, activities, and schedule. Further-although they can of course be forged--in a sea of mis-identified or ambiguous images on social media, a yearbook's status as a school district "official" publication means they are a little more authentic (and thus valuable).

For this reason, a little extra care in how yearbooks are published and distributed is well-warranted, and should be respected by anyone who has asked to take it.

Thank you for a thoughtful question!

****BONUS EXTRA***

Here is a sample yearbook "reservation of rights""

(c) [YEAR] [District Name]

This [insert year] yearbook is a collective work protected by copyright owned by the [insert school district].  Individual images and compositions may be owned by individual authors.  No part of the book may be reproduced in any medium whatsoever without permission of the District.  The names and likenesses of people featured in this publication are protected by the laws of the state of New York.  Inquiries for permission may be directed to [address].

As with all template language, this is just a starting place...review the final with your lawyer before using!

 

Suggested tags: Yearbook, copyright, school district, digitization, image use, privacy