RAQs: Recently Asked Questions

Topic: Patron account debt collections - 4/30/2020
What laws or limits should libraries consider when storing and collecting patron account debts? ...
Posted: Thursday, April 30, 2020 Permalink

MEMBER QUESTION

What laws or limits should libraries consider when storing and collecting patron account debts?

Who is responsible for compliance: the library where a patron is registered (they set their own blocking policies), or the system maintaining the records?

Similarly, does the library system (who manages an ILS on behalf of its member libraries) have the authority over library records, including that of purging library patron accounts, according to local policy?

WNYLRC ATTORNEY'S RESPONSE

On the surface, these questions are very simple, since they boil down to: what are the laws impacting the flow of data comprising patron debt records (bills, fines, referral to collections), and who needs to follow those laws?

Of course, underneath that simplicity, the questions are mission-critical.  Libraries and library systems need to follow the relevant laws without error, and to ensure that while doing so, they reinforce the mission of their institutions.[1]

For this question, we’ll assume “patron account debts” as referred to by the member, are the four most typical “cost” records that a library maintains about patrons:

  • Late fee records
  • Replacement/damage fee records
  • Hold fee records, and
  • Ancillary costs records (duplication fees, etc.). 

Expressly excluded from this list of “patron account debts,” and from consideration in this answer, is debt related to deliberate property damage, personal injury, or express[2] contractual liability.  

And with those specifications in mind, here we go.

What laws or limits should libraries consider when storing and collecting patron account debts? 

To get to the important details in this question, we have to start with the fundamentals.

The first legal consideration when storing and collecting patron account debts is the nature of your library or library system, which is governed by a combination of the New York State Education Law (“Ed Law”), and the New York Not-For-Profit Corporations Law (“NFPC Law”), your charter, and bylaws.[3]

These laws and documents impact how your library or system 1) owns property; 2) sets the terms for that property to be borrowed; 3) maintains records regarding such activity; and 4) (if relevant) contracts with third parties (such as collection agencies or data repositories) to manage them.

The second legal consideration is the nature of the patron debts: are they set by law or regulation (like a tax or permit fee), or are they the by-product of a policy or agreement (like a service contract)?

The Ed Law and the NYPC Law, and related regulations, do not prescribe late fees, replacement fees, hold fees, or ancillary fees for patrons.  Rather, the Ed Law emphasizes that use of a library should be without costs to its community, as can be seen in this excerpt from Ed Law Section 253:

The term “public” library as used in this chapter shall be construed to mean a library, other than professional, technical or public school library, established for free public purposes by official action of a municipality or district or the legislature, where the whole interests belong to the public; the term “association” library shall be construed to mean a library established and controlled, in whole or in part, by a group of private individuals operating as an association, close corporation or as trustees under the provisions of a will or deed of trust; and the term “free” as applied to a library shall be construed to mean a library maintained for the benefit and free use on equal terms of all the people of the community in which the library is located. [emphasis added]

This “free” access within the area of service is also emphasized in Ed Law Section 262, which states:

Every library established under section two hundred fifty-five of this chapter shall be forever free to the inhabitants of the municipality or district or Indian reservation, which establishes it, subject always to rules of the library trustees who shall have authority to exclude any person who wilfully [sic] violates such rules; and the trustees may, under such conditions as they think expedient, extend the privileges of the library to persons living outside such municipality or district or Indian reservation.

That said, state law does contemplate the need for libraries to incentivize the return of books, and in solving that problem, it does not mess around.  As provided in Ed Law Section 265:

Whoever wilfully [sic] detains any book, newspaper, magazine, pamphlet, manuscript or other property belonging to any public or incorporated library, reading-room, museum or other educational institution, for thirty days after notice in writing to return the same, given after the expiration of the time which by the rules of such institution, such article or other property may be kept, shall be punished by a fine of not less than one nor more than twenty-five dollars, or by imprisonment in jail not exceeding six months, and the said notice shall bear on its face a copy of this section.

Forgive me if you find this boring, but I find it fascinating: New York State law’s only mention of fines in the context of accessing library services is a section that authorizes libraries to work with local law enforcement to impose fines and enforce the return of books through criminal prosecution.  Meanwhile, the law makes NO mention of collection of late fees or penalties per policy or through civil debt collection.[4]

Although Ed Law 265 is the only legislation to prescribe a remedy for failure to timely return library materials, I am not aware of any public or association library that actively uses it, although this ability has been on the books in its current form since 1950.[5]

So if the debt a library patron owes a library isn’t a “fine” under Ed Law Section 265 (or up to six months in jail!), what is it?

Rather than pursue the “265” option, most libraries have elected to use the  authority of their boards under Ed Law 226, and the NFPC Law, to simply condition the acquisition of a library card (and thus, access to core library services) on the patron’s knowing consent to a voluntary system of fines and penalties.   In other words, patrons agree to pay money in return for the ongoing privilege of borrowing books.   

While recent developments under consumer protection laws characterize it otherwise,[6] this voluntary, quid-pro-quo condition of otherwise free library access is viewed by the law as “contractual.”

Library boards, empowered by the law to set policy for the proper functioning of the library, use this contractual system to:

  • Incentivize return of assets (late fees);
  • Replace items that are not returned (replacement costs), and
  • Offset extras that are not part of a library’s core services (access to on-site photocopiers; hold fees for out-of-system interlibrary loans).[7]

This was a long answer to this second consideration, but it is critical.  What is the nature of patron debt?  It’s contractual.  This is what enables library debt to be farmed out for collections, or certain patron debt to be discharged in bankruptcy.  This will become relevant further into our analysis.

The third legal consideration is that every record related to patron debt is subject to the requirements of New York’s CPLR 4509, which means that—other than as needed for the proper functioning of the library—the records must be kept confidential.  They are just as private as circulation records and internet searches.

The fourth legal consideration is the medium of the record: hard copy, or electronic (or both)? In the event the record is electronic, the SHIELD ACT, which went into effect this March, may govern the keeper’s security and data breach requirements.

And finally, the fifth legal consideration is: what are the parameters for enforcing or collecting on the debt, anyway?  A combination of state and federal law, together with the library/system’s policy.  We’ll tackle this factor in-depth in the “diagnostic” section, below.

Which brings us to the member’s next two questions:

Who is responsible for compliance: the library where a patron is registered (they set their own blocking policies), or the system maintaining the records?

Similarly, does the library system (who manages an ILS on behalf of its member libraries) have the authority over library records, including that of purging library patron accounts, according to local policy? 

As you can probably tell by the remaining length of this “Ask the Lawyer”, there is not one, simple answer to either of these questions.  In fact, there are multiple answers, controlled by multiple factors.

Here is a process for sorting those factors out, and ensuring your library or system is enforcing fines and fees within the boundaries of the law.

Does the library or library system avail itself of Ed Law 265?

Are you one of the rare institutions actually using (not just threatening to use) law enforcement to assist with returns?  If “yes,” there should be a written policy for sending out notices and coordinating with local law enforcement. 

Also, if you do this, please write me at adams@stephaniecoleadams.com, because it would be really interesting to hear about your experience, you bibliophilic unicorn.

If the answer is “no” …

What document shows the patron has expressly agreed to pay the debt your library is charging as a condition of having a library card?

This would be the policies or terms the patron consented to follow when they signed up for their card.  It should be a clear statement of fines and fees that patrons expressly agree to, and the patron’s express consent to that agreement (signified by a signature or authenticable electronic signature) should be demonstrable at any later date the library or system needs to enforce the debt.  In some systems, this might even be covered in the member agreement (or a policy).

If the conditions showing a clear consent to fees aren’t clearly set forth in one document, or present at the time they are incurred (in a way that will show the patron knowingly incurred the cost), that should be corrected.

Many boards and staff inherited fee structures from previous administrations.  It is wise to revisit the compliance and function of fine policies and the systems for enforcing them no less than every five years.  This is particularly true since in the last five years, there have been changes to how fines may be collected, and changes to laws regarding maintenance of electronic records. 

Is that “debt agreement” with a single library, or an entire system serving that library? Whoever the agreement is with (the “creditor”) is the entity directly responsible for how the debt is enforced and related legal compliance.

This is important to clarify.  If the debt agreement is with a system, that system is the “creditor” and the system should be the entity maintaining the information, not the patron’s main library.  On the flip side, if the debt agreement is solely with a library (and the system has separate terms, or there is no system involved) that library is the creditor, and is the party responsible for the information’s use and maintenance.  The documentation related to fees, and the enabling policies, should leave no room for ambiguity in this.

This does not mean that any library within a system needs to conform its fine policy to all the others in that system.  Rather, within the bounds of the law, it means that a system enforcing multiple member library policies must ensure that patrons have notice of the different fee structures they might be agreeing to, before the imposition of a fee.

Wait! What about library systems that maintain overdue records and enforce collections on behalf of member libraries?  Or libraries and systems that contract those services out.

This is where terminology becomes important.  In a policy to charge fees for late books and replacements, a patron becomes a “debtor” (an entity who owes money to another entity).  The entity they owe it to (the library or system) is the “creditor.”  Meanwhile, any third party hired to track the information related to the debt on behalf of the creditor is a “contractor.”

It is the creditor—the entity situated to assert a debt in a court of law—who is responsible for the proper management of debt-related information. While they can retain a contractor to manage the database, and even perform related functions (sending out notices, making calls to encourage returns), they remain the party ultimately responsible for use and maintenance of the information.  They are also the sole party empowered to sign over the authority to collect the debt to an agent (a “collection agency”).[8]

In New York, some library systems are the creditors, but some (if its founding documents, the membership agreement, and policies provide for it) are just the contractors for their member libraries. The ability to set this relationship up, and to effect the resulting responsibility and authority, starts with the entity type and its contractual affiliations, which will vary from system to system, and will change based on charter, bylaws, and strategic decisions. 

This is why founding documents are always the “first legal consideration.”

What policy at the entity required to maintain the information (the creditor library or system) clearly sets out how debt-related information is generated, maintained, used, and purged?

It can have any number of names, but this policy should reference the terms the patrons have agreed to, all relevant laws, and be tied into the institution’s policy for data breach.  If the creditor uses a third party to store the data, or a collection agency, baseline criteria for those contracts is also part of this answer.  Further, the policy should specifically address how long fee records are maintained after they are incurred, and under what terms patrons might be forever barred from borrowing privileges based on such fees.

For libraries and systems that use fees, below is a sample policy that covers the different considerations of charging fees.  Variable items are in yellow, critical items (meaning a library/system should have a clear policy and provision regarding this) are in red:

TEMPLATE Policy Regarding Terms, Records, and Payment of Patron Fees

Terms of Borrowing

As a condition of borrowing privileges, patrons agree to fees as set forth in [all documents listing a fee].

Education Law 265

The [XXX library/system] [does/does not] use the remedies allowed by Education Law 265 for the return of late items.

Threshold for Suspension of Borrowing

Patrons with over [$amount] of unpaid fees will have their borrowing privileged suspended.

Fee Records

Information regarding fees is housed on [place/entity housing information].

The security provision for [place] are [insert].

[Place] is only accessible to trained employees of [institution and any affiliates who must access it].

Notice of fees owed will only be sent out via sealed envelope sent via USPS, to the email of record of the patron, or provided on a printed paper upon the patron’s request in person. 

Information related to fines shall not be conveyed over the phone unless as an ADA accommodation.

Collections

Once outstanding fees reach [$threshold amount], a third-party collection agency may be used.

The contract for any collection agency shall include a commitment to follow all relevant consumer protection laws and [insert priorities of the library regarding contact with patrons].

To ensure confidentiality of patron records as required by CPLR 4509, no such agency shall be authorized to contact patrons at their residence in person or via the telephone. 

The [library/system] shall cease collection efforts as to any patron who informs the library that they have filed bankruptcy.  To re-institute borrowing privileges during bankruptcy, the patron should send a copy of the bankruptcy filing to the library. In the event new charges after the bankruptcy filing again reach the threshold for suspending borrowing privileges, privileges will be suspended.

Other than trained employees, and any third-party collection agency, only the patron and those duly authorized per CPLR 4509 may access records related to patron fees.  Collection notices may only be sent via USPS, and to the email of record to the patron; contact may only be via phone if initiated by the patron.

In the event a patron fee record is authorized or accessed in violation of this policy, the library/system will take all appropriate corrective action, and if required, will follow the notification procedures in the library/system’s policy regarding data breach.

Payment of fees

Fees will only be accepted by the [library/system] per the relevant fiscal controls, as set out in [reference fiscal control policy/ies, or the terms in a collection agency contract].

Accounting

Unpaid fees are listed as “receivables” and accounted for in book-keeping as required by GAGAS.

Unpaid fees are no longer collectible in a court of law six (6) years after they are incurred, and thus are written off the books after six (6) years.

Record Purge

After unpaid fees are written off the books, the library will purge all print and electronic records of such fees, except for preserving de-identified data for purposes of assessing library operations.

Permanent Loss of Privileges

Patrons responsible for [$amount] of unpaid fees (based on any combination of late fees, replacement costs, or other unpaid fees), unless the debt is discharged in bankruptcy, will be permanently barred from applying for another card from the [library/system], and such record shall be maintained in perpetuity.

 

Template language, of course, is only provided so it can be conformed to the unique position, practices, and goals of your library/system.  Within the scope set out above, there is a lot of latitude to do things in a way that reflects the unique needs of your institution. What is important is that there be clarity about the use of fees, and how they are managed.  Further, institutions placing a high priority on collectability of fines should have the full suite of language reviewed by their lawyer annually.

What policy or standard operating procedure at an entity NOT required to maintain the information, but accessing it for customer service, clearly sets out how debt-related information is accessed and not improperly shared?

For collaborating entities with access but not responsibility for fee records (for instance, a member library within a system, or a system who must follow a member’s policy) compliance with a clear policy or SOP should be part of routine training for employees and volunteers.

Standard Operating Procedure Regarding Confidentiality of Patron Fees

The [XXX library/system] maintains confidential data regarding patron fees, including late fees and hold fees, on a password-protected database only available to trained employees. 

The [adopting institution] accesses and adds to this information to assist patrons in accessing and addressing issues related to fees.

Other than trained employees, only the patron and those duly authorized per CPLR 4509 may access records related to a patron’s fees.

Notice of fees owed will only be sent out via sealed envelope sent via USPS, to the email of record to the patron, or provided on a printed paper upon the patron’s request in person.  Information related to fines shall not be conveyed over the phone unless as an ADA accommodation.

In the event a patron fee record is authorized or accessed in violation of this procedure, the [adopting institution] will take all appropriate corrective action, and if required, will let [XXX library system] know, so it can follow the notification procedures in the [XXXlibrary/system]’s policy regarding data breach.

Fees will only be collected per the attached [relevant fiscal controls/policy/member agreement].

Employees are trained on this standard operating procedure prior to doing any work related to fees, and not less than annually. 

This template language, is only provided to inspire a standard operating procedure that addresses critical details; any final SOP should be conformed to the unique practices of your library and system.

If a collection agency is used to encourage returns and enforce late fees, who retains the agency and monitors its performance?

This should only be the entity expressly authorized by the patron agreement to collect the debt (the “creditor”).

Is there a written policy for how the library or system accounts for patron debt in its books?  When, if ever, is that debt written off?

Patron debt is a “receivable,” meaning it is on the books as money owed to the library, until the debt is forgiven or written off.[9]

How long is a patron’s debt enforceable?

In New York, a debt owed per a contract is enforceable for six years, unless otherwise provided.[10]  Unless reduced to a judgment, efforts to collect debts that are enforceable run the risk of being considered unfair debt collection practices.[11]  However, a library can continue to condition borrowing privileges on truing up past accounts and returning/replacing lost items, even if they are not collectible in a court of law.

Does the record-keeping policy of the library or system tracking the patron debt continue the consequences for the debt after it is written off?  Or does the policy not write off the debt, ever? 

There is no “right” answer here, but there should be mission-sensitive harmony between policies and how the library is accounting for the debt.  If a 1995 debt was written off the books in 2005, it might not make sense to enforce the debt’s consequences past 2015.  Figuring this out is a great excuse for a library’s treasurer, accountant, and director to go out for lunch.

The final, final answers to the member’s question are therefore:

1) Every library and library system will have a different array of answers to the member’s questions. 

2) The key take-away is that to ensure legal compliance about managing patron debt, an institution must address the above-listed considerations.

Coda

OK. I said I wasn't going to say anything, but I have to.

Anyone who reads the law can see that use of late fees is not a practice baked into the legal roots of public and association libraries.  Rather, libraries in New York State are expressly created as free institutions—institutions assured the collaboration of law enforcement when there is an abuse of their free resources.

I appreciate that viewing the problem of unreturned books as a “criminal” matter can pose some concern for libraries.  However, as a former criminal defense attorney, and now a business attorney, I can tell you that in many ways, a system that caps fines at $25 and holds the threat of jail time for anyone—even those who can easily afford larger library fees than some—is actually comparatively egalitarian. 

That said, the fact that Education Law 265 is not more utilized shows that at some point, critical connections within communities (libraries and municipal prosecuting attorneys) were not forged to empower this approach. Rather, it seems that many libraries resorted to fines and collection operations, monetizing the human tendency to forget to return library books. 

Over time, these fees were regarded as a revenue stream.  In some places, it might even supplement budgets that should be fully supplied by sponsoring municipalities.[12]

I see this failure to use 265 as a failing of the law.  And as someone who has devoted their adult life to the law, that is disappointing to see. 

That said, I take heart that in 2015, 30 states’ Attorneys General took action to ensure library fees could no longer impact people’s credit, limiting the toolbox of collection agencies enforcing library fees.[13]  And I am glad many libraries are taking fresh, critical looks at how to encourage responsible library use and good stewardship of library assets, without resorting to financial fees.  

The plain and repeated language in New York’s Education Law states that public and association libraries are “free” to their communities.  Compliance with that language should be the aim of every public and association library, even as they exercise their authority, also created by law, to protect their assets and serve their unique areas of service.

 



[1] Much data-driven, well-researched, and passionate content has been generated about libraries’ use of fines and penalties.  This answer just sticks to using them with an eye to legal compliance.

[2] Meaning the debt is based on a specific, written contract with the precise amount owed set forth and signed by the patron.

[3] This structure is more fully set forth in answer like this one: https://www.wnylrc.org/ask-the-lawyer/raqs/103.

[4] Since the maximum imprisonment term of six months makes the detention of a library book a misdemeanor, this remedy is “criminal”.

[5] Further, when one looks at the centralized guidance for operating a public or free association library in New York, the issue of fines and fees is not substantively addressed.  While the excellent guidance here: http://www.nysl.nysed.gov/libdev/helpful/helpful.pdf states that policies, including those about fines, should be well-thought out, there is no background or guidance on fines. 

[6] Without turning this into a law review article, I’ll simply say that since 2015, credit reporting agencies have not been allowed to add library fines to credit reports, because they are not viewed as “contractual” (see the settlement terms found at https://ag.ny.gov/pdfs/CRA%20Agreement%20Fully%20Executed%203.8.15.pdf).  That said, in the legal biz, the conditioning of access upon the agreement to pay fines is “contractual,” and based on that construct, some libraries do use collection agencies to sue for unpaid fees.

[7]It has been my conclusion that hold fees within cooperative library systems are contrary to relevant law and regulations.  But that’s a column for another day.

[8] Of course, collection agency contracts should have protections and assurances requiring the agent to follow the law. That is partially to protect the creditor in the event their agent violates the law (and can also function to protect the library-patron relationship).

[9] An illustration of how such receivables are viewed under accounting procedures for public libraries can be found in this 2014 NYS Comptroller’s audit of Oswego Public Library: https://www.osc.state.ny.us/localgov/audits/libraries/2014/oswego_sd.pdf

[10] See Section 213 of New York’s Civil Procedure Laws and Rules.  The limitation period to use Ed Law 265 is two years, but since 265 doesn’t seem like a popular option, we’ll just stick that fact in a footnote.

[11] The Fair Debt Collection Practices Act (“FDCPA”) prohibits the use of any false, deceptive, or misleading representation or means in connection with the collection of any debt (see 15 U.S.C.S. § 1692e).

[12] In many ways, it is akin to the addiction municipalities have to municipal court fees.  If you ever need to hear a good rant, ask me about that one.

[13] The legal action discussed in footnote 7.

Tags: Fees and Fines

Year

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2018 29

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