Public Libraries

WARNING! This answer applies only to school district public libraries.[1]

In addition: Caveat…[2] this answer will apply differently to different school district public libraries.

As fans of library law know,[3] school district public libraries have their own special subsections of New York State Education Law Section 260 regarding election of trustees and occasionally have to follow the practices of their sponsoring district.

The subsection relevant to this question is (8), which provides:

Candidates for the office of trustee of a public library established and supported by a school district shall be nominated by petition which shall meet the requirements of subdivision a of section two thousand eighteen of this chapter, except that such candidates shall be elected in the manner specified in subdivision b of such section except that the nominating petition filed pursuant to subdivision a or b of such section shall be signed by a least twenty-five qualified voters of the library district, or two percent of the voters who voted in the last previous annual election of members of the library board of trustees, whichever is greater. The provisions of this subdivision shall not apply to a charter granted prior to April thirtieth, nineteen hundred seventy-one that provides for a different procedure. [emphasis added]

Because of the clause in bold, when I get a question like the one above, I first ask if the Library was chartered before April 14, 1971. If it was, I check to see if the charter says something else about the method of electing trustees.[4] If it does, we follow what the charter says.

Presuming a library’s charter doesn’t pre-date President Nixon’s ending of the blockade of China[5] and provide for another process, I then look to the relevant law, which is “subdivision a of section two thousand eighteen of this chapter.” This section requires:

Each petition shall be filed in the office of the clerk of the district between the hours of nine a.m. and five p.m., not later than the thirtieth day preceding the school meeting or election at which the candidates nominated are to be elected. No person shall be nominated by petition for more than one separate office.

Which brings us to the member’s question: what if the “thirtieth day” falls on a Sunday?

Although there is no statute or case law on this point regarding a school district public library, the New York State Education Commissioner wrote in Decision No. 17238 that the state’s “General Construction Law” provides:[6]

§ 25-a. Public holiday, Saturday or Sunday in statutes; extension of time where performance of act is due on Saturday, Sunday or public holiday

1. When any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day and if the period ends at a specified hour, such act may be done at or before the same hour of such next succeeding business day…

So, there you have it! The due date will be the next business day (which could be a Tuesday, if the Monday after the Sunday is also a holiday).

That said, even if this all checks out for you, it is wise to confirm this with the school district—especially if the district is conducting your library’s elections.

If you would like to memorize a summary of this answer to dazzle people at board meetings, here it is:

Barring a charter provision providing otherwise, if the deadline for nominating petitions for school district public library candidates falls on a Sunday, petitions are due the next business day, as provided by General Construction Law Section 25-a.

Thank you for a great question!

The member posing the question is 100% right: the copyright considerations of fanfiction are “tricky.”

A 2018 case in New York,[1] Conan Properties v. Sanchez, involves Ricardo Sanchez, a fan of “Conan the Barbarian,” who for around twenty-five Euro would send other fans a sculpture of a Conan character. Mr. Sanchez promoted his work on Kickstarter and other social media.

The company that owns the rights to the Conan characters sued Mr. Sanchez for copyright and trademark infringement. Mr. Sanchez, perhaps scared that the copyright police[2] were about to descend upon him, did not appear in the case to defend himself, and so the Plaintiff got a “default judgment” (a sort of forfeit win) and asked the court for the type of large commercial damages available for serious and willful commercial infringement.

The judge did her homework about fanfiction (including fan fiction for small commercial gain) and wrote:

[D]efendant is a hobbyist sculptor from Spain and a fan of Robert Howard, and, in creating his figurines as a tribute to the kinds of heroes depicted in Howard’s stories, he requested financial support from the community of Robert Howard fans to help fund and share his hobby. See Compl. Ex. A at 8. Defendant’s apparently meager revenue per figurine, see id. at 5, in a market that reportedly commands much higher prices, see Malmberg Supp. Decl. ¶ 11, suggests that the motivating purpose for defendant’s use was the prospect of fan play—as opposed to commercial gain, see Rebecca Tushnet, Economies of Desire: Fair Use and Marketplace Assumptions, 51 Wm. & Mary L. Rev. 513, 527 (2009) (defining “fanworks” as “works created outside the major [*90] content industries by aficionados of a source text” and existing “because creativity arises out of a sense of play”). Such use is a far cry from the kind of purely deadweight infringement present in piracy and related cases. Indeed, as the Supreme Court has observed: “Fan sites prompted by a book or film . . . may benefit the copyright owner.” Petrella v. Metro Goldwyn-Mayer, Inc., 572 U.S. 663, 134 S. Ct. 1962, 1976, 188 L. Ed. 2d 979 (2014) (Ginsburg, J.).

This was insightful on the part of the judge, but that didn’t get the Conan fan totally off the hook. Instead, the damages, which could have been in the hundreds of thousands, were limited to $9,000 dollars.[3]

While $9,000 dollars is a lot less than the damages in the typical “big” copyright case, it is not chump change. 

So, is there a way a library can sponsor a fan fiction event without urging participants to run afoul of copyright?

Yes!

As the judge points out in Conan Props., some fan fiction is so harmless as to be negligible infringement, and other fan fiction may even be “fair use” under copyright law.[4]

Although it seems counterintuitive, respect for the source material will make it more likely to be considered a “derivative work” (like a sequel or version in a different medium). On the flip side, personal touches that show the impact of the work on the fan’s life and put a new spin on it are more likely to be “fair use,” especially if the context is one of learning and participating in a creative event.

With that in mind, here is a sample participation letter for a Fan Fiction contest at a public library: 

RE:    ABC Library YA Fan Fiction Contest

Dear Participant:

At the ABC Library, we love it when people enjoy a book so much that they are inspired to create a work based on it.

To honor this creativity by our YA readers, we are sponsoring a “YA Fan Fiction Contest” for readers ages 12 to 16.[5]

As you may know, work that is clearly based on the work of another is a “derivative work” that requires permission from the author to publish or display. At the same time, under copyright law, work that comments on the work of others is allowed under “fair use.” 

This is a tough distinction to work with, but for this contest we simply ask that you follow these rules:

1. Your Source Material

If you are using established characters or settings to generate your Fan Fiction, submissions should transport the reader to a new perspective or location that makes the work your own. 

Examples: “Wings of Fire” set in the Adirondacks, or “Akata Witch” with a totally new character finding their powers.[6]

2. Originality

The work should be your original composition without help from other people (or AI). All work should be your own (you can work with a co-author if you submit it with both authors listed).

3. Non-commercial

You agree you won’t sell the work. We won’t sell it either! 

4. Publication and Display

You agree that the work may be published by and/or displayed at the Library. We will give you author credit.

To sign up, please fill in the form below, sign it, and send it in with your submission. Because this is a legal agreement, your guardian or parent must sign this along with you.

Submissions are due by DATE. Please submit them to INSERT with a signed copy of this form. 

Please make sure you keep a copy of your work, because we can’t promise your submission will be returned!

Winners will be announced [etc. with the logistics]. Because life happens, the library does reserve the right to change these dates, but we hope to stick to them!

Here are the contents for a sample form to include with the letter:

You can ask whatever you need to make the contest meaningful; the purpose is to include the benefits of participating together with the creation of the fan fiction, which will strengthen a fair use of the source materials.

This will also educate the participants about the copyright considerations, which will be important as they grow as artists and creators.

Thank you for hanging in there as we reviewed the case law and factors to consider in such a contest. This is a great example of how things can be done when you put the right amount of thought and planning into them. The young readers in your area are lucky. 

Good wishes for a fun event that showcases reader engagement and creativity!

Albany Public Library

Amityville Public Library

Babylon Public Library

Baldwin Public Library

Ballston Community Public Library

Bay Shore Brightwaters Library

Bayport Blue Point Pub Library

Bellmore Memorial Library

Bethlehem Public Library

Bethpage Public Library

Brentwood Public Library

Brooklyn Public Library

Bryant Library

C V Whitney Long Lake Library

Canastota Public Library

Catskill Public Library

Center Moriches Public Library

Central Islip Public Library

Chautauqua-Cattaraugus Lib Sys

Chazy Public Library

Co. Library Dist.

Clifton Park-Halfmoon Pub Lib Dist

Clinton-Essex-Franklin Library

Clyde Savannah Public Library

Commack Public Library

Comsewogue Public Library

Connetquot Public Library

Copiague Memorial Library

Corning Public Library

Cornwall Public Library

Cortland Free Library

Crandall Library

Crawford Library District

Deer Park Public Library

Dunkirk Public Library

East Greenbush Comm Library

East Islip Public Library

East Meadow Public Library

Elwood Public Library

Emma S Clark Memorial Library

Fallsburg Library

Farmingdale Public Library

Field Library

Finger Lakes Library System

Finkelstein Memorial Library

Four County Library System

Frank J Basloe Library

Franklin Square Public Library

Freeport Memorial Library

Fulton Public Library

Galway Public Library

Geneva Public Library

Glen Cove Public Library

Gloversville Public Library

Gold Coast Public Library Dist

Goshen Public Library

Great Neck Library

Grinnell Public Library District

Guilderland Public Library

Half Hollow Hills Comm Library Harborfields Public Library

Hauppauge Public Library

Heermance Memorial Library

Hempstead Library

Hendrick Hudson Free Library

Hewlett Woodmere Pub Library

Hicksville Public Library

Highland Public Library

Hillside Public Library

Howland Public Library

Huntington Memorial Library

Huntington Public Library

Hyde Library Dist.

Island Park Public Library

Island Trees Public Library

Islip Public Library

James Prendergast Library

Jericho Public Library

Johnstown Public Library

Katonah Village Library

Lakeview Public Library

Lansing Community Library

Levittown Public Library

Liberty Public Library

Lindenhurst Memorial Library

Lockport Public Library

Long Beach Public Library

Longwood Public Library

Mahopac Public Library

Malverne Public Library

Mamakating Public Library

Mamaroneck Public Library Dist

Manhasset Public Library

Massapequa Public Library

Mastics Moriches Shirley Library

Mechanicville Library Dist.

Merrick Library

Metropolitan Reference Library

Mid Hudson Library System

Mid York Library System

Middle Country Public Library

Moffat Library Washingtonville

Mohawk Valley Library Assoc

Montauk Library

Mt Vernon Public Library

Nanuet Public Library

Naples Library

Nassau Library System

New City Library

New Rochelle Public Library

New York Public Library

Newark Public Library

Nioga Library System

No Onondaga Library District

No Tonawanda Public Library

North Bellmore Public Library

North Library System 

North Greenbush Public Library

North Merrick Public Library

North Shore Public Library Dis

Northport E Northport Pub Lib

Nyack Library

Oceanside Library

Olean Public Library

Orangeburg Library District

Ossining Public Library

Oswego School Dist Pub Library

Oyster Bay Public Library

Palmyra Community Library

Patchogue-Medford Pub Library

Pearl River Public Library

Peninsula Public Library

Penn Yan Public Library

Perry Public Library

Piermont Public Library

Pioneer Library System

Plainview/Old Bethpage 

Public Library

Plattekill Public Library

Port Chester Public Library

Port Jefferson Free Library

Port Jervis Free Library

Port Washington Library

Potsdam Public Library

Poughkeepsie Publ Library Dis

Queens Borough Public Library

Ramapo Catskill Library System

RCS Community Library

Red Jacket Library

Richmond Memorial Library

Riverhead Free Library

Rockville Centre Pub Library

Rockwell Falls Public Library

Roosevelt Public Library

Rosendale Library

S Adirondack Library System

Sachem Public Library

Salamanca Public Library

Saugerties Public Library Dist

Sayville Library

Schuylerville Public Library

SE NY Library Resource Council

Seymour Public Library District

Sidney Memorial Public Library

Smithtown Special Library Dist

So Huntington Public Library

Southern Tier Library System

Stevens Memorial Comm Library

Stillwater Public Library

Suffolk Coop Library System

Syosset Public Library

The Comm Libr of Cobleskill

Thrall Public Library

Town of Esopus Library

Troy Public Library

Uniondale Public Library

Upper Hudson Library System

Vestal Public Library

WNY Library Resources Council

W Sullivan Public Library

Wadsworth Library

Wantagh Public Library

Waterville Public Library

West Babylon Public Library

West Hempstead Public Library

West Hurley Public Library

West Islip Public Library

Westbury Mem Public Library

Westchester Library System

Williamson Public Library

Woodstock Public Library

Woodward Memorial Library

SPOILER ALERT!!

For those of you who need to know: in the end, the service at a regional council “counted.”

And now for the questions...

1. How should job candidates respond when faced with situations like this?
2. Do you have some guidance or strategies for navigating this issue?

When this question arose, my office looked at a variety of different local rules for civil service, hoping to find examples of service at a library system and regional council “counting” towards years of service at a library.

What we found was the opposite… local rules and guidance expressly limiting library service to chartered public libraries.

With no examples of common practice to cite, we had to make a legal argument.[1] Here is a modified, genericized version of what was said:[2]

At the request of my client, I’m providing this letter addressing whether a regional library council is a “library of recognized standing” as that phrase is used in your agency’s Civil Service “LIBRARY DIRECTOR” job description.

A regional library council is a creation of Education Law Chapter 16, Article 5, Part 2, Section 255.

A review of that law shows that a library council or system is unambiguously included as one of the many types of “Public Library” entities formed under that section of the law.
When the plain language of Section 255 is reviewed, it is clear that the state’s nine regional library councils are categorized under the law as “libraries,” together with association libraries, school libraries, library systems, Indian libraries, and other library entities recognized by the New York State Education Department (“NYSED”).

Of course, service at any type of NYSED-recognized library might not meet the experiential requirements of a particular job description, but that is another issue. For purposes of service at a “library of recognized standing”, service at a regional library council, library system, or other NYSED-recognized library can contribute to durational requirements.

Thank you for your attention to this matter.

As I have shared, this situation had a happy ending; the applicant’s years of service at a regional council were found to be service at a “library of recognized standing.” But oh, the stress created getting there! So, let’s consider the member’s questions with an eye to getting ahead of the issue.

Whenever the qualification of a place of employment is in doubt, ask your civil service department. If told “no,” remain calm and document the precise reason the service is not being accepted. Then, reach out to other resources for assistance.

As the member points out, a LOT of people have a stake in this issue! Aside from applicants, it can affect library systems and councils that want to ensure they remain attractive employers. It also can’t hurt to get a lawyer involved.[3]

In short, this is not a battle for an applicant to fight alone, and it shouldn’t be a “battle”—just a reasoned conversation between interested parties. By isolating the issue, staying calm, reaching out, and assembling persuasive authority, the right conclusion should be reached.

If a person does all that, and the service still isn’t found to count… well, that may be where the lawyer steps up.

The important thing is to act before the search closes. The further the agency gets into the process, the harder it can be to walk back from an original position and undo any damage.[4]

So: stay engaged, remain calm, and assemble your allies. Civil Service is human, too.

Thank you for an important question.

Early mail ballots are required in most school district elections by the 2023 “New York Early Mail Voting Act” that went into effect January 1, 2024.[1]

While the Early Mail Voting Act[2] created important new ways to vote, it does not directly apply to libraries, except to specify that school districts holding library trustee elections and library budget votes must follow it.[3]

So, we aren’t going to spend too much time on the Early Mail Voting Act.[4]

Instead, we must enter the winding labyrinth of Education Law Section 260, which (among many other things) empowers school district public library trustees to host their own election and budget votes.

As we enter the labyrinth of Education Law 260, be careful!

Don’t be districted by subsection “3” (regarding joint town libraries... a fascinating chimera).

Don’t be lured from the path by subsection “5” (requiring that library boards to meet at least quarterly).[5]

And DON’T fall under the hypnotic gaze of subsection “6” (authorizing libraries to make annual contributions to the New York Library Association).[6]

Instead, cast your eyes upon glorious subsection “11,” which requires that school district public libraries must “establish, notice, and conduct” elections and budget votes (and re-votes) “in the same manner” as their school districts.

EXCEPT!

“... that the meeting need not, in the discretion of the board of trustees of the library, be held in separate election districts in those school districts where election districts have been established by the board of education.”

In other words: the school district library, when conducting a vote, must “establish, notice, and conduct” the process in the same manner as their district, except they don't have to use more than one polling location.[7]

It is possible that when the Early Mail Voting[8] Act was passed, the authors of the bill did not explore the winding labyrinth of Education Law 260.[9] However, the existence of an exception in Education Law 260 (not having to conduct the vote in separate districts, even if the district does) tells me that in all other aspects, a school district library must “establish, notice, and conduct” its elections and budget votes (and re-votes) “in the same manner” as its district... including use of absentee ballots and early voting.

There is no authority, case law, or indication in the supporting documentation of the Early Mail Voting[10] Act bill that contradicts this.

Which means that if the district is facilitating early voting, the library should, too. With so much at stake (trustee elections, budgets, etc.), until clear authority says otherwise, it would be unwise to do anything else.

So, to answer the first question: all signs indicate the comment was not correct (which means I won't answer the second question).

If enough school district public libraries find sending out early mail-in ballots too burdensome, a change to Education Law Section 260(8), adding “Early Mail Voting”[11] to the listed exceptions, should be explored. The current exception to having to do what the district does—not having to use separate polling stations—was likely for the sake of economy, so this could be, too.[12]

Thank you for a great question!

The best approach to standardize and streamline scheduling, timekeeping, benefits, and compensation management is to use a single automated payroll system that enables tracking of all accruals and leave time offered by your library.

Although this sounds obvious,[1] at institutions with multiple unions, different “types” of employees, and without centralized HR to coordinate things, transitioning to such a system can be quite complex, causing some libraries to delay implementation.

Facing that complexity head-on and transitioning to a single automated payroll system is worth it. Aside from the simple fact that it is only fair for an employer to record everyone’s hours consistently, there are significant compliance risks for imprecise or irregular payroll practices, including:

• Failure to retain payroll records (penalty: a fine of not less than five nor more than ten thousand dollars in addition to any other penalties otherwise provided by law);[2]
• Failure to accurately confirm compensation terms (penalty: damages of up to $250 dollars per day, per employee, unless employees are paid all wages required by law);[3]
• Failure to pay wages earned due to error or intentional under-payment, a.k.a. “wage theft” (penalty: the sum of five hundred dollars for each such failure);[4]
• Failure to abide by collective bargaining terms (penalty for breach of contract: compensatory damages and legal fees);[5]
• Failure to properly withhold state and federal income taxes (penalty: federal Class E felony, up to 5 years in prison[6] and a state penalty equal to the sum of the total amount of the tax evaded, or not collected, or not
  accounted for and paid over, and the interest that has accrued on
  the total amount of tax evaded on the date this penalty is first imposed
  until this penalty is paid with interest thereon.);[7]
• Failure to properly track accrued paid sick leave based on hours or days worked (penalty: may be subject to civil/administrative actions and/or criminal penalties, including but not limited to, an order assessing the full amount of the wage underpayment, 100% liquidated damages, and civil penalties in an amount up to double the total amount to be due);[8]
• Failure to pay overtime and/or properly track “comp time”;[9]
• Failure to properly track hours worked for purposes of New York State Retirement contributions (penalty: embarrassment as the NYS Comptroller conducts a review and correction);[10]
• Failure to accurately report hours works to the NYS Unemployment Insurance Program (penalty: many);[11]
• Failure to accurately report hours worked to a workers’ compensation insurance carrier (penalty: if intentional, a Class E felony);[12]
• Failure to accurately report hours worked to a disability insurance carrier (penalty: many);[13]
• Failure to accurately report hours worked to Paid Family Medical Leave insurance carrier (penalty: same as for disability—see footnote 13); and
• Failure to properly document hours worked in relation to 401k or 403b retirement benefits (if this leads to a “knowing misrepresentation” the penalty is a fine and/or up to five years imprisonment).[14]

Of course, not all these risks apply to all employer types. If a workplace doesn’t have a union, it doesn’t have the risk of a union grievance. If a workplace isn’t subject to the paid sick leave law, it can’t be fined for not following it. But every employer has an obligation to retain accurate payroll records and pay people for the time they have worked (whether they are salaried or hourly), and most employers have to follow at least half of the items listed above.[15]

The good news is that many of the responsibilities leading to penalties (like payroll recordkeeping) can be contracted out. And that is why employers use a professional payroll service and a standard system for timekeeping.

Setting up a contract with a payroll company is relatively simple, but getting employees to use the same system—especially if the switch involves new procedures—can be a struggle.

In particular, a transition to a new system can be difficult for salaried employees who don’t get paid by the hour but are expected to work a basic work week (usually set by policy). For such employees, “clocking in” can be antithetical to being a salaried professional, executive, or administrative employee; the whole point is you don’t have to punch in.

But there are many reasons for ALL employees to “clock in” (whether it is by noting their start time on a physical spreadsheet, or on the company system, or a vendor’s system). Aside from the obvious reasons the employer might have (assessing productivity), employees of all types should track their start and end times so there is a clear record of when they are working. Among other things, knowing when an employee was working is important for workers’ compensation claims for workplace injury.

In addition, it is healthy for salaried supervisors to know the experience of hourly employees; this includes using the same system whenever possible for tracking accrued sick leave, vacation time, personal time, and other days out (bereavement and jury duty being two prime examples).

When an employer is shopping for a new payroll system, it is important to know the different ways employee time is tracked and ensure the system supports those breakdowns. This is particularly important for employers that have to track sick leave and prenatal care leave[16] or for those who offer New York State retirement pensions.[17] So, basically everyone.

Once a payroll system is selected, there should be clear policy and protocol for entering time. Although it requires planning and resources, training on the new system so people know how to use it is important.

Thank you for a great question.

School district libraries are one of the 5 “types” of public library (the others are: association, Indian, municipal, and special district).[1]

Each type of public library can be supported by a tax levy approved by the voters of a school district, but at school district public libraries, the voters also elect the library trustees.

Unlike the other library types, the law gives school district public libraries a lot of authority to determine how these votes are conducted. A school district library board[2] can decide to hold its own election and referendum, or, if the library board decides not to do so, the district must include the vote as part its annual meeting (the library items are part of a separate ballot).[3]

A school district public library board can also decide to hold a re-vote if a budget referendum fails (no matter who conducts it).[4]

This flexibility under the law gives school district public libraries a dazzling array of tactical options:

• Conduct their votes before their school district does (but after April 1);
• Use the option to have their school district hold the vote(s) as part of the district’s annual meeting;
• Conduct their election and referendum after their school district does (but before July 1);
• Keep in mind the option to re-submit a budget in the event of defeat.

There are countless motives for choosing any of the above models.

For a school district public library board and school district that are tightly aligned, the most economically efficient option might be to do everything together.[5]

That said, many school districts politely ask (they can’t require) a school district public library to hold a separate process, because they don’t want the voters to confuse the library budget with a school district money-grab. There can also be concerns about confusion as to who is running for which board.[6]

On the flip side, a school district public library may want to separate itself a bit from its district… or not. Every district and library are different, and of course, these factors will change over time.

So, to reiterate the question: Can a school require the library to be part of its budget vote if the library desires to be separate from it? No—in fact, it is the school district public library who can “require” the school district to hold the vote.

Ideally, there is no “requiring” going on. Within the framework of the Education Law, a school district library board and school board should have a solid working relationship to identify the best approach for the library, the school system, and most critically, the people in the served area. A memorandum of understanding or other recital about how the two boards discuss elections in advance is a good idea, since leadership will change over time, and there are many pressures on the process.

Thank you for an important question.

This is a great question. Before we jump into it, let’s summarize the three types of faxing set out in the referenced article:

1. “Walk-up Faxing” (on a copper line)
2. “Virtual Fax” (it’s really email![1])
3. “Real-Time T.38 Fax Lines” (still e-mail, but with a better connection)

The “T.38” as a “best practice” intrigued me, so I dug in to see if there was any case law featuring it.

There is! And it digs into the capability of the T.38: [2]

Defendant further attacks Richard’s credibility by claiming that his testimony reveals his failure to understand the intricacies of fax technology. These critiques are frivolous. For example, defendant claims Richard’s credibility is undermined by his allegedly inaccurate testimony that: (1) MessageVision used only the T.30 protocol; and (2) a device such as MessageVision’s that uses the T.38 protocol cannot use the T.30 protocol. Even if defendant is correct that Richard’s testimony reflects his limited comprehension of fax technology—a proposition that appears to be dubious at best—defendant’s argument is contradicted by the fact that his own expert admits that T.38 converts to T.30 when a fax is sent using APX 1000.

Well then.[3]

So, with “the intricacies of fax technology” now established as a legal niche, let’s take the questions about faxing and regulatory compliance acronym-by-acronym.

• FERPA
• HIPAA
• SOX[4]

1. Libraries, Fax Lines, and FERPA

FERPA does not apply to public libraries, so we’ll discuss it in the context of school libraries.

Academic libraries at institutions that receive federal assistance have to follow the “Family Education Rights Privacy Act,” which (among many other things) restricts third-party access to education records.[5]

As an example: if I am a student at ABC College, I need to borrow something via an inter-library loan, and (for some odd, steampunky reason) the lending library will only receive loan requests by fax, FERPA could restrict third-party access to the request, if the request lists me (the student) by name as the borrower.[6]

In this case, the manner in which the fax is sent (copper, email, fancy T.38) does not matter. What matters is that either a) I consented for my FERPA-protected education record to be shared with a third party or b) inter-library lending is set up in a way that makes lending libraries (sorta) part of the institution under 34 CFR § 99.31.[7]

After that, the fax simply has to be sufficiently secure to get it from point A (the library) to point B (the other library) without disclosure to a third party.[8]

So that’s FERPA.

2. Libraries, Fax Lines, and HIPAA

HIPAA and other laws related to medical privacy are important and high-stakes; the fine for a HIPAA violation is $50,000 dollars.

Before we delve into this, aside from a hospital librarian or librarian serving a program providing health services, there is NO CIRCUMSTANCE under which a public, academic or public library should be engaging in a HIPAA-governed communication.[9]

What do I mean by “HIPAA-governed communication?” Here’s the type of information governed by HIPAA:[10]

Individually identifiable health information

The term “individually identifiable health information” means any information, including demographic information collected from an individual, that—

(A) is created or received by a health care provider, health plan, employer, or health care clearinghouse; and

(B) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual, and—

(i) identifies the individual; or

(ii) with respect to which there is a reasonable basis to believe that the information can be used to identify the individual.

If your library is not transmitting this type of information,[11] you can stop sweating about HIPAA, even if patrons are using your fax to send it, or (at an academic library) the health center on campus has to abide by it.

Now, if you are a library in a teaching hospital, etc., here is the deal: your institution needs to step up and provide you with 100% assurance that you have the right policies, technology, and practices to be compliant.[12] This includes assurance of a fax line that is secure, which can be any of the three solutions, so long as it is set up right and maintained properly.[13]

So that’s HIPAA.

3. Libraries, Fax Lines, and SOX

While the accountants who audit your library or larger institution may (rightly) hold themselves to the standard set by “Sarbanes-Oxley” (SOX), which was passed in 2002 to protect investors in publicly traded companies, SOX does not govern the data transmission practices of a public or academic library.

But the mention of SOX in the Forbes article referenced in the question intrigued me—it says, “Virtual fax... can be problematic if your business has certain regulatory compliance requirements to support (for example, HIPAA, FERPA and SOX).”

So, I took a look to see if there has been a SOX case involving an insecure fax... and there is!

Here is what happened as told by Judge Denise Cote in Seybold v. Groenink:[14]

In October 2004, while the chairman of ABN’s Managing Board, defendant Rijkman Groenink, met with Federal Reserve Bank regulators in New York over the Eastern European transactions, he received a fax at the Ritz-Carlton Hotel concerning the results of an internal ABN investigation regarding Iran-Libya transactions. Groenink allegedly ordered his aides to destroy the report and to stop sending sensitive documents to the United States.

So, if you are at a library near a business school prepping students for stellar careers in international business... it may be helpful to show that we must all fax wisely.

Does this mean your library needs a T.38? No, but it does mean that asking questions and developing secure systems is important.

You may even want to do the research and see if you can fight to keep at least one copper line.[15] There is strength in having a diversity of technology.[16]

Thank you for an excellent question!

Update 7/23/2025: We received a followup question on this topic; read our answer here.

Not quite.

What this means is that so long as the information is being transmitted as a library service, and not as library business, it is not subject to HIPAA.

This means that when helping a patron send a fax to their doctors, library workers can handle the documents and even push the buttons on the fax machine without violating HIPAA.[1]

That said, may libraries put guardrails around workers’ handling of sensitive documents (banking and health being two of the major categories), regardless of whether such handling is “legal.” This is to protect workers from accusations of identity theft and invasion of privacy, as well as from the distressing by-products of reading patrons’ confidential information.[2]

Fax machines are not the most intuitive of technology, so there is a strong chance some patrons may ask for help.[3] In addition, the small buttons and other operational aspects of a fax machine can be a challenge for people with certain disabilities.

To enable assistance but protect workers, if a library wants to be able to help patrons with physical actions related to handling sensitive documents (faxing, copying, scanning[4]) there should be a clear reason, and protocol.

There are all sorts of options for this, but here is any example to post near a fax machine:

If you need physical assistance faxing a document:

1. Please let a library worker know.
2. The library worker will give you a folder.
3. Put your documents to be faxed in the folder.

NOTE: If your documents don’t fit in the folder, are stapled, or the pages are too creased to be faxed, the Library cannot assist. Please return when the document is in a condition to be faxed. To protect our workers, we cannot prepare your documents.

4. Keep the fax number handy!
5. Let us know when you are ready, and as time allows, a library worker will: load the pages, enter the fax number, stay with you as the pages are transmitted, and return the pages to the folder for you to take back.
6. Library workers are instructed to not review what is on the pages, and please do not ask them to. This is for everyone’s protection.
7. The library worker will hand you the fax transmission report.
8. If the fax fails, and we have time, we’ll help figure things out!
9. For your privacy, our fax machines do not retain a copy of what was sent after [#] hours.

This type of protocol can be modified as needed,[5] but the important things are: please don’t ask us to review your documents, and please don’t ask us to manipulate your documents.

But to be clear, the reason for a library to adopt these protections is to protect workers and to respect patron privacy, not to comply with HIPAA. And because of the labor involved, a library can simply say: due to privacy concerns, we cannot assist with faxing.

Thank you for seeking this clarification!

I imagine most people who made it through the library lingo in the question do not need a decoder ring for the answer.

That said, Ask the Lawyer is for everyone, so with a few twists of the decoder ring, this question is about:

• Education Law Section 259, which concerns library funding approved by the voters of a school district.
• Chapter 414 of the Laws of 1995, which amended Education Law 259 to include library funding approved by the voters of a municipality.[1]
• “JPOTB,” or funding that is “just part of the budget” of a municipality (no separate tax line supports the library; the money is allocated from the general levy).[2]

With those concepts defined, let’s tackle the first question:

… my understanding was, in the case of a 259, that the municipal funders were no longer allowed to collect the amount of money that had been used to fund the library. Is this true?

That is not true. Further, there is no provision in the Education Law, General Municipal Law, Town Law, Village Law, City Law, County Law, or Real Property Tax Law that could make this true.

What may have given rise to this impression is instances of JPOTB funding being re-allocated after a successful 259 vote. After all, if a library successfully transitions to support from a school district levy, it is pretty easy for the governing board of the municipality to justify adjusting the budget.

But to be clear, if that budget was already passed, and the levy issued, the portion of JPOTB funding allocated to the library is library money, the minute it is collected.[3]

But if the money is coming from a 414 source (as in, a separate levy approved by the voters), the only thing that can remove that funding is a vote per the applicable law of the taxing entity.

This leads us to the member’s next question: After a successful funding vote, can a municipality decide to allocate funds from their budget to go to the library?

The answer to this is a resounding “YES.” Not only is there no law barring it, but there is no relevant guidance from the usual suspects (Attorney General, NYSED, State Comptroller) suggesting it can’t be done. If a municipality wants to support a public library that gets additional sources of revenue, it can do so.

The logical next question is: After a successful 259 (school district funding vote), how does a municipality reduce its 414 funding, if desired?

The elimination or reduction of 414 funding will vary by municipality. Although establishing or increasing 414 funding per Education Law 259 requires a petition signed by 25 voters and an endorsement by the library’s board of trustees,[4] reduction or elimination must follow the municipality’s particular path to removal.[5]

This is an important thing to be sensitive to. A public library should have diverse and secure streams of revenue,[6] but must take care not to appear greedy, wasteful, or unfair to taxpayers supporting more than one library.

While this is just common sense, it is so serious that it has recently been the subject of attempted state legislation (see 2024 – 2025 NYS Assembly Bill 4530A). Although this bill did not pass, it sets out issues to be aware of and is worth reading as a cautionary tale.

The bottom line: when a public library is planning to change a revenue source, careful strategic planning should be part of the process. Early participation by legal counsel, as well as an experienced legislative and/or public relations professional, is wise.[7]

Thank you for an important question.