Record Retention

Before we dive into this, a word of caution: sometimes “law firms” are not always what they seem.

Because I am writing this in 2025, you might assume I am starting with the caution because “deep fakes” are out there pretending to be lawyers, politicians, and your grandchildren stranded on the road in Arkansas.[1]

But actually, this has been a problem for a long time, even before someone could use PageMaker[2] to cobble up a fake law firm letterhead.

So, before a library (or any cultural institution) leaps into response mode on a “lawyer letter,” it is wise to do what the member is doing: exercise a little healthy skepticism.

In this case, it is good to verify that the firm and lawyer are real, and that the firm you’ve verified actually sent this.

Now, if there is any chance that the legal matter in question could involve a claim against your institution, it is wise for your lawyer to do this. I am not saying that to drum up work for my siblings at the bar,[3] but because the initial outreach to the requesting firm could result in providing information they are not entitled to, and it could put your institution at risk. Using your attorney to make the contact will reduce this risk.

The attorney can, at the same time, assess if the demand has teeth (as in, can the requirement to preserve the footage be enforced?), and advise on next steps. As part of that exercise, the attorney will evaluate this from the perspective requested by the member: patron privacy.

The first part of that evaluation is standing under the transparent elephant in the room: FOIL.[4] If a record is available under FOIL, a person doesn’t have to get a subpoena to demand a copy; they can just request the record, and the library has 5 business days to get them an initial response to the request.

Of course, FOIL is not a magic wand that brings immediate access to all records; there are all sorts of exceptions to what must be disclosed under it, and those exceptions include library user records.

This brings us to the next consideration: what your library has defined as “library user records.” While the law in New York governing the confidentiality of library user records[5] does not mention security footage, it allows libraries to include such records in their own definition. If a library’s “Confidentiality of Library User Records Policy”[6] lists security footage—or security footage in certain areas—as a “user record,” the content cannot be disclosed without a written release from the relevant patron(s), a court order, or a subpoena.

The next thing to consider is your library’s practice of retaining security footage. In New York, security footage can be FOILed, but there is no obligation for an agency to retain such footage unless there is a “potential legal use.” This “0 after no longer needed” retention period is set by the LGS-1, which is the master list of record retention terms for government agencies in New York.

Here is the LGS-1’s listing for security footage:

When developing a security footage/library user record policy, it is important to keep this non-existent retention period for boring footage in mind.[7]

Why is that important? If a request has been received for footage that is already deleted (because your library did not identify a need to retain it), the library has no ability to fulfill the request and has no culpability for not having the footage.

If the library retains the footage for a set time (for instance, 30 days) and then routinely deletes it, but a legitimate demand to retain the footage is received prior to the footage being deleted, the footage must be retained as having a “potential legal use.”

For this reason, it is important for public libraries with security systems to set a retention period for security camera footage and to ensure they are deleting the recordings exactly as required by the policy. This is because if a public library gets a request for the footage, and the library has the footage, it must be preserved, even if it is past its retention period… and even if it is regarded as a library user record.

Note that I say it must be “preserved,” not that it must be “disclosed.” Disclosure is only required after a library user grants their written permission or the library receives a subpoena or court order. Assessing when the library is compelled to provide the record is another job for the library’s attorney.[8]

Returning to the member’s question (“I would like to know what limitations and obligations we have in this civil matter with regard to patron privacy”), the answer is: the library cannot go wrong by assuming that the record cannot be disclosed without a subpoena or court order and not releasing it until the library’s attorney has assessed the matter and provided written advice.

Here are just a few of the variables that make caution and taking your time wise: 

• The “litigation hold” demand might not be legitimate;[9]
• The case could be settled in between the time the library gets the request and is ready to fill it;[10]
• The person the footage pertains to could attempt to “quash” the subpoena;
• A party could try to appeal the court order directing that the record be provided;
• If the footage is needed by the library user it pertains to, that person could sign a release, but there is no obligation on the part of the library to provide the record;
• The library may need to address footage that shows one or more other person(s) in the same frame as the person(s) to whom a subpoena pertains.

When a library director (or another lucky employee) receives a request like this, the best response is to draw a deep breath, call your board leadership and/or library system to develop a response plan,[11] or reach out to the library’s attorney.[12] If the footage that was requested still exists but is scheduled for deletion, it should be preserved immediately.[13] Other than that, nothing should happen quickly.

The good thing to remember is that no matter what, libraries in New York[14] are well-positioned to go to the mat for library user privacy—a notion that in 2025 may seem quaint but grows more important with every passing day.

Thank you for a great question. 

At one point about twenty years ago, I thought about forming a small company that would use etchings on stone to authenticate important records. The stones would range in size and be etched with a unique pattern documenting the record. The properties of the stone, in combination with the pattern, would be the authentication key. The jobs of “stone courier” and “stone reader” would be a fiduciary position, akin to a lawyer or CPA (but they would be in better shape, because of all the lifting).

I did not follow up on this idea, which is of course the only reason why we now use QR codes to authenticate everything from mortgages to concert tickets, and why you don’t have to have a padded “rock bag” in place of your cell phone, as you go through the airline check-in.

Why am I starting my answer to a serious question with this silly (but real) story? Because as the question points out, there are many types of records, and they are defined by their content, not their medium. A ticket to see “Lords of the Sound,” whether on paper, your phone, or a gilded rock, is still a ticket.[1] In that same vein, a library card application record, no matter what the medium, is still a library card application record.

So, to address the first question (How would you define a Library Card Application Record?), we must first ask, “What is a library card application record, as defined by the LGS-1?”[2]

Here is how “library card application records” are referred to in the most recent version:[3]

Lawyers can be notoriously precious about definitions, but I will say that in this case, it is the record generated by the process of applying for a library card and/or borrowing privileges.

Interestingly, the term “library card” is not defined by law or regulation in New York State and is only used in Education Law Section 816, which requires public schools to disseminate library card application information to K-12 students.

Instead, Education Law Section 262 provides: Every library ... 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. [emphasis added]

A “library card” is, by custom (not law), the end product of the “rules” of the “privilege” of using the library. A “Library Card Application Record” is whatever was generated with the end goal of a person having the privilege to use a library card. As can be seen, it must be retained for at least three years after the card has expired.

This brings us to the second question: Does duplicating all information from a simple registration card into the ILS patron record relieve the retention period of the physical registration card?

Great question!

I have to say “no.”

Here is why:

If you read the LGS-1 closely, you will see that it does not pertain to cooperative library systems; for example, LGS-1 items 593 and 594 in the above excerpt[4] show that while a member library must retain materials received from its library system, the system has no similar obligation.

This is because cooperative library systems do not fall under the record-keeping obligations of the state’s Arts & Cultural Affairs Law,[5] the law that mandates record-keeping by government agencies and directs NYSED to maintain a schedule of document retention (the LGS-1).

The obligations in the LGS-1 fall on public libraries. So, unless the cooperative library system providing the ILS is specifically under contract to maintain the records as a vendor for the required retention period, the copy retained by the system might not meet the retention obligation of the library (even if the record is 100% duplicated).

So, with that, on to the next question:

Does retention change if there is unique information on the registration card that is not duplicated in the ILS, including signatures?

If the application information is combined with other information, the retention period could be increased. For example, here is another type of record that must be kept by a public library:

So, if a library is doubling up on its application form (online or in hard copy) and also uses it as a form for registering the right to access a special collection, the retention period could be increased.

The next question is very important: If retention applies to a simple registration card (no signatures or unique information), is it possible to define it as a temporary data transfer tool rather than an application through policy, to relieve the retention requirement?

Again, I have to answer “no.”

Here is why: the physical registration card is filled out by the library user to apply for a card, and then it is used by the library or system to initiate the digital process of entering the card holder into the ILS.

Once the person is granted a card, the library has no obligation to retain their borrowing record (except to the extent the Library decides that it is “needed”). This includes—hold on, things are about to get meta here—the record entered into the ILS based on the application.

The record that must be retained for three years after the expiration of the card is the “application,” not the ILS record that facilitates borrowing.

Consider: The application is the act of the future library user signifying that they accept the rules the library is imposing and asking for library privileges.

Entry into the ILS is the act of the library accepting the application (generally with the help of the library system, which provides the ILS) and enabling the creation of a borrowing record.

Although the two operations may record the same information at the onset, these are two separate things, with two separate retention periods (life of the card plus three years and zero years after needed, respectively).

For this reason, cooperative library systems that do not fall under the Arts & Cultural Affairs Law have to carefully identify when they are performing a record-keeping function for a member public library that does fall under the Arts & Cultural Affairs Law. Although ILS technology will impact how borrowing privileges are put into effect and used, each public library within a system should have its own policy and practice for applying for a card, and each cooperative system should make it clear (via policy or a member agreement) when it is providing a record-keeping function for a member related to that process and when it is not.[6]

Interestingly, because a library card application can signify agreement to library and/or system policy and procedure, I believe it is wise to retain application materials for at least six years after expiration, because that is the default statute of limitations for bringing an action on a contract.[7] This is true whether the application was “born digital,” created on paper, or even submitted via a gilded rock.

But that is just something to consider, not a law. Here is a sample policy including this consideration and the others discussed above.

Library card application records are records generated by a library user and/or the library or library system in furtherance of the user’s formal library privileges. 

Library card application records are confidential and private and will not be disclosed to any third party without written permission of the cardholder, or per a duly issued subpoena, court order, or warrant, unless for the operational needs of the library.

Typical information supplied on library card application records is: [username, address, optional additional contact information, optional third parties who may access confidential library records, and card type (select all that apply/add your own: temporary card, youth card, resident borrower, non-resident borrower, system card)].

The [NAME Library/NAME System] stores library card application records in the following ways: [SELECT ALL THAT APPLY: hard copy, on computers owned and controlled by the Library, on a network owned and controlled by the Library, on a confidential cloud service controlled by INSERT, and on an integrated library system maintained by the [NAME] Library System].

To ensure the proper retention and disposal of library card application records, such records are retained for not less than three (3) years after the card has been discontinued.

The following retention periods will add to and never subtract from the above period: 

For a library card or other application for permission to use non-circulating materials, such records are retained for not less than six (6) years. 

For library card application records relating to permission to use rare, valuable, or non-circulating materials, such records are retained for not less than six (6) years.

For library card application records relating to agreements to abide by a Code of Conduct, granting image rights use, third-party access to an account, or otherwise making a contractual agreement, such records are retained for not less than six (6) years.

Library card application records are disposed of within one (1) year of the expiration of the relevant retention period. Some library card application records may be retained for archival or operational purposes, but the privacy and confidentiality of such records shall continue.

Thank you for an important series of questions.

New York's Freedom of Information Law, or “FOIL”, applies to government agencies (including public libraries) but cannot be used to compel private companies (or individuals) to allow inspection or copying or records.

So, in the scenario described by the member, the private company employing the guard is not subject to FOIL, but the library is, as is the county, so information about the security company can be accessed.

Of course, that doesn't mean a person gets everything they might want, but it does mean that information about private companies working for public entities can be accessed.

We'll talk about this in more detail, but to illustrate my point, here is a short, one-act play:

CITIZEN (to security guard at public library): Who are you?!?! The Power of FOIL compels you!

SECURITY GUARD: Well, as you can see on my ID, my name is Phil. But I am not subject to FOIL.  Ask my boss.

CITIZEN (to Phil's private employer, whose company name and logo are on the ID): Who is that guy "Phil"?!? What's his last name and his qualifications?!? What does he get paid a year?!? The Power of FOIL compels you!

PRIVATE SECURITY COMPANY:  We're so glad you like Phil! We do, too. Unfortunately, we are not subject to FOIL, and we don't provide information about private employee to third parties.

CITIZEN (to the library): Your private security company is hiding information! Tell me everything about Phil! EVERYTHING!!! The Power of FOIL compels you!

LIBRARY (answering within 5 days): Your request is a bit broad, but we do have records relating to how we arranged the services of a security company through the County. Would you like to inspect those records, or be provided with copies?

CITIZEN (to the county): I don't just want to know "the arrangement," I want to know about Phil, the actual guy providing security at the Library!  Give me all the information you have on him!!! The Power of FOIL compels you!

COUNTY (replying within 5 days, and helping to narrow down the request): We are not quite sure what you're asking for, but we can definitely provide information about the security company. Do you want just the contract, or the complete procurement process, including their proposal?

[End Scene]

Of course, in this (hopefully fictional) scenario, the citizen asking for the information might not be able to get (such as what "Phil" is making per hour, or Phil's address, or Phil's resume). But if the information the person is really hoping to access falls into the accessible materials held by an entity subject to FOIL (like a county or a public library), they will hopefully get what they need.

Unfortunately, we live in a world where many times requests under FOIL can be perceived as aggressive. And sometimes the FOIL request is clearly being made by a person with an axe to grind.[1]

That's one of the many prices, to be cheerfully paid, of living in a democracy. Good government thrives on transparency, and prompt disclosures show respect for the public, as well as competence.

In my experience, the best way for an entity subject to FOIL to de-escalate any hostility accompanying a FOIL request is to:

• Always require that employees be treated with respect;
• Have a clearly articulated and easily located FOIL policy;
• Have clarity within the organization as to who is responsible for requests and appeals under FOIL[2];
• Maintain records in such a way that FOIL requests are easy and economical to fulfill;
• Allocate time and budget to train the person responsible for responding to FOIL request, so they know what to do (and when to consult a lawyer).

All of the above-listed bullets can be achieved through a policy that sets out the proper timelines and procedures for following the law.

The great thing about a FOIL request being submitted to a library is that if there is one thing librarians know how to do, it's how to help people find information. So, unlike other "agencies" subject to FOIL, where records management and disclosure can be perceived as a hassle, in some ways, fulfilling a FOIL request is just business as usual: enable access.

The below "Template Public Library FOIL Policy" is based on the model policy supplied by the New York State Committee on Open Government (the COOG), found at https://opengovernment.ny.gov/freedom-information-law.  Since it is right from the COOG (with a few added bells and whistles from me), it checks all the boxes on mandatory reply times, providing copies, and how to reply to a request.

Having a policy, and a posting a summary setting out how to request a library record under FOIL, is a good way to diffuse any tension underlying a FOIL request.

As with any template, before a public library's board passes a version based on this one, it is best to have it reviewed by your library's lawyer.

Section 1: Purpose and scope of this FOIL Compliance Policy:

The NAME Library (the "Library") believes in the right of the People to know the process of decision-making and to have access to the documents and information underlying the operations of the Library.  

In addition, a part of the mission of the Library is to enable access to information the public is entitled to.

To that end, the Library shall furnish to the public the information and records required by the Freedom of Information Law, using this policy to enable, effect, and document such compliance.

Section 2: Designation of Library Records Access Officer:

1. The Library designates the following person(s) as "Records Access Officer(s)":

Job title or name:  _____________________________________________

Business address: _____________________________________________

Email address: ________________________________________________

2. The Records Access Officer is responsible for ensuring appropriate library response to public requests for access to records, and shall ensure that the Library:
   1. Maintains an up-to-date subject matter list of type of Library records, based on the categories of documents in the LGS-1[3].
   2. Assist persons seeking public library records to identify the records sought, if necessary, and when appropriate, indicate the manner in which the records are filed, retrieved or generated to assist persons in reasonably describing records.
   3. Contact persons seeking records when a request is voluminous or when locating the records involves substantial effort, so that personnel may ascertain the nature of records of primary interest and attempt to reasonably reduce the volume of records requested.
   4. Upon locating the records, take one of the following actions:
      1. Make records available for inspection; OR,
      2. Deny access to the records in whole or in part and explain in writing the reasons therefor.
   5. Upon request for copies of records:
   1. Make a copy available upon payment or offer to pay established fees, if any, in accordance with Section 8 of this Policy; OR,
   2. Permit the requester to copy those records under appropriate supervision to ensure the records' physical integrity.
   3. Upon request, certify that a record is a true copy; and
   1. The NAME Library is not the custodian for such records; OR,
   2. The records of which NAME Library is a custodian cannot be found after diligent search.
   3. Upon failure to locate records, certify that;

Section 3: Location

Records shall be available for public inspection and copying at:

(Location)____________________________________

(Address)____________________________________

____________________________________________

____________________________________________

____________________________________________

Section 4: Hours for public inspection:

Requests for public access to records shall be accepted and records produced during all hours the Library is regularly open for business, however, timing of fulfillment will be impacted by staff capacity.

Section 5: Requests for public access to records

1. A written request may be required, but oral requests may be accepted when records are readily available.
2. If records are maintained on the internet, the requester shall be informed that the records are accessible via the internet and in printed form either on paper or other information storage medium.
3. A response shall be given within five business days of receipt of a request by:
   1. informing a person requesting records that the request or portion of the request does not reasonably describe the records sought, including direction, to the extent possible, that would enable that person to request records reasonably described; OR,
   2. granting or denying access to records in whole or in part; OR,
   3. acknowledging the receipt of a request in writing, including an approximate date when the request will be granted or denied in whole or in part, which shall be reasonable under the circumstances of the request and shall not be more than twenty business days after the date of the acknowledgment, or if it is known that circumstances prevent disclosure within twenty business days from the date of such acknowledgment, providing a statement in writing indicating the reason for inability to grant the request within that time and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part; OR,
   4. if the receipt of request was acknowledged in writing and included an approximate date when the request would be granted in whole or in part within twenty business days of such acknowledgment, but circumstances prevent disclosure within that time, providing a statement in writing within twenty business days of such acknowledgment specifying the reason for the inability to do so and a date certain, within a reasonable period under the circumstances of the request, when the request will be granted in whole or in part.
4. In determining a reasonable time for granting or denying a request under the circumstances of a request, the Library shall consider the volume of a request, the ease or difficulty in locating, retrieving or generating records, the complexity of the request, the need to review records to determine the extent to which they must be disclosed, the number of requests received by the agency, and similar factors that bear on the ability to grant access to records promptly and within a reasonable time.
5. A failure to comply with the time limitations described herein shall constitute a denial of a request that may be appealed. Such failure shall include situations in which the Records Access Officer (or other employee):
1. fails to grant access to the records sought, deny access in writing or acknowledge the receipt of a request within five business days of the receipt of a request; OR,
2. acknowledges the receipt of a request within five business days but fails to furnish an approximate date when the request will be granted or denied in whole or in part; OR,
3. furnishes an acknowledgment of the receipt of a request within five business days with an approximate date for granting or denying access in whole or in part that is unreasonable under the circumstances of the request; OR,
4. fails to respond to a request within a reasonable time after the approximate date given or within twenty business days after the date of the acknowledgment of the receipt of a request; OR,
5. determines to grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request, but fails to do so, unless the agency provides the reason for its inability to do so in writing and a date certain within which the request will be granted in whole or in part; OR,
6. does not grant a request in whole or in part within twenty business days of the acknowledgment of the receipt of a request and fails to provide the reason in writing explaining the inability to do so and a date certain by which the request will be granted in whole or in part; OR,
7. responds to a request, stating that more than twenty business days is needed to grant or deny the request in whole or in part and provides a date certain within which that will be accomplished, but such date is unreasonable under the circumstances of the request.

Section 6: Subject matter list

1. The Library shall maintain a reasonably detailed current list by subject matter of all records in its possession, based on the categories of records set forth in the LGS-1, whether or not records are available pursuant to subdivision two of Section eighty-seven of the Public Officers Law.
2. The "Subject Matter List shall be sufficiently detailed to permit identification of the category of the record sought; the LGS-1 breakdown and description of record categories is the default system the Library shall use.  Whenever possible, this Subject Matter List shall accord with the categories in the Library's [Document Retention and Destruction Policy OR equivalent].
3. The Subject Matter List shall be updated annually by POSITION. The most recent update shall appear on the first page of the subject matter list.

Section 7: Denial of access to records

1. Denial of access to records shall be in writing stating the reason therefor and advising the requester of the right to appeal to the individual or body established to determine appeals, [who or which] shall be identified by name, title, business address and business phone number.
2. If requested records are not provided promptly, as required in Section 5 of this policy, such failure shall also be deemed a denial of access.
3. The following "FOIL Appeal Officer" shall determine appeals regarding denial of access to records under the Freedom of Information Law:
   Name: ___________________________________________________

Title or position: ____________________________________________

Address for FOIL purposes:___________________________________

_________________________________________________________

Phone number:____________________________________________
 

4. Any person denied access to records may appeal within thirty days of a denial.
5. The time for deciding an appeal by the individual or body designated to determine appeals shall commence upon receipt of a written appeal identifying:
   1. the date and location of requests for records;
   2. a description, to the extent possible, of the records that were denied; and
   3. the name and return address of the person denied access.
6. A failure to determine an appeal within ten business days of its receipt by granting access to the records sought or fully explaining the reasons for further denial in writing shall constitute a denial of the appeal.
1. The person or body designated to determine appeals shall transmit to the Committee on Open Government copies of all appeals upon receipt of appeals. Such copies shall be addressed to:
   
   Committee on Open Government
   Department of State
   One Commerce Plaza
   99 Washington Avenue, Suite 650
   Albany, NY 12231
    
2. The person or body designated to determine appeals shall inform the appellant and the Committee on Open Government of its determination in writing within ten business days of receipt of an appeal. The determination shall be transmitted to the Committee on Open Government in the same manner as set forth subdivision (f) of this section.

Section 8: Fees

1. There shall be no fee charged for:
   1. inspection of records;
   2. search for records; or
   3. any certification pursuant to this part.
2. Copies may be provided without charging a fee.
3. Fees for copies may be charged, provided that:
1. the fee for copying records shall not exceed 25 cents per page for photocopies not exceeding 9 by 14 inches. This section shall not be construed to mandate the raising of fees where agencies or municipalities in the past have charged less that 25 cents for such copies;
2. the fee for photocopies of records in excess of 9 x 14 inches shall not exceed the actual cost of reproduction; or
3. an agency has the authority to redact portions of a paper record and does so prior to disclosure of the record by making a photocopy from which the proper redactions are made.
1. an amount equal to the hourly salary attributed to the lowest paid employee who has the necessary skill required to prepare a copy of the requested record, but only when more than two hours of the employee’s time is necessary to do so; and
2. the actual cost of the storage devices or media provided to the person making the request in complying with such request; or
3. the actual cost to the agency of engaging an outside professional service to prepare a copy of a record, but only when an agency’s information technology equipment is inadequate to prepare a copy, and if such service is used to prepare the copy.
4. The fee an agency may charge for a copy of any other record is based on the actual cost of reproduction and may include only the following:
5. When the Library has the ability to retrieve or extract a record or data maintained in a computer storage system with reasonable effort, or when doing so requires less employee time than engaging in manual retrieval or redactions from non-electronic records, the Library shall retrieve or extract such record or data electronically. In such case, the Library may charge a fee in accordance with Section 8.3 above.
6. The Library shall inform a person requesting a record of the estimated cost of preparing a copy of the record if more than two hours of an agency employee’s time is needed, or if it is necessary to retain an outside professional service to prepare a copy of the record.
7. The Library may require that the fee for copying or reproducing a record be paid in advance of the preparation of such copy.

Section 9: Public notice

A notice containing:

• the title or name and business address of the Library Records Access Officer
• the title or name and business address of the Library's FOIL Appeal Officer
• the location where records can be seen or copied

shall be posted in a conspicuous location in the Library, and on the Library website at ADDRESS.

Section 10: Severability

If any provision of these regulations or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such judgment shall not affect or impair the validity of the other provisions of these regulations or the application thereof to other persons and circumstances.

YOU HAVE A RIGHT TO SEE YOUR LIBRARY'S PUBLIC RECORDS

The amended Freedom of Information Law ("FOIL"), which took effect on January 1, 1978, gives you the right of access to many public records, including many of those related to the operation of your public library.

Records related to the Library, if not considered exempt from FOIL, can be seen and copied at:

(Location)____________________________________

(Address)____________________________________

____________________________________________

____________________________________________

____________________________________________

The following Library employee(s) will help you to exercise your right to access:

Library Records Access Officer(s)

(name)_____________________________________________

(job title)____________________________________________

(business address)_____________________________________

____________________________________________________

(phone #)____________________________________________

If you are denied access to a record, you may appeal to the following person(s) or body:

(name)_____________________________________________

(job title)____________________________________________

(business address)_____________________________________

____________________________________________________

(phone #)____________________________________________

[1] I personally have ground down at least three metaphorical axes, making FOIL requests over the years.

[2] These will be different people/groups.

[3] LGS-1 is the NYS Archives Retention and Disposition Schedule for New York Local Government Records and can be found at: http://www.archives.nysed.gov/records/local-government-record-schedule/lgs-1-title-page

Several considerations impact the answer to this question:

For a public library, the bare minimum record retention periods are found in a document called "the LGS-1."[1]  The LGS-1 has rules for retention covering everything from your library's charter, to how long you hold onto circulation records.

For an association library, which does not have to follow the LGS-1, those retention rules in the LGS-1 are a good baseline, but you have a bit more latitude.

However, no matter what baseline a library or other cultural organization chooses to adopt, it is good to keep in mind that required retention periods are routinely extended by things like:

• Insurance policy requirements
• Union contracts (for personnel records)
• Grants, and other sponsored funding
• Lawyers instructing a client to retain records as part of a "litigation hold"

In addition, while it can't be considered a formal "retention period", documents are also "retained" by institutions simply due to a tendency to hoard records.  At times, this can be a healthy tendency (like when letters from a first grade class from 1945, written to thank the local library for a story hour, are found in moisture-resistant storage, and they are turned into an exhibit).  Other times, it is not so healthy (like when borrower records from 5 years prior[2] are accessed during a burglary or hack).

For a large library (or museum, or other cultural institution) with robust funding and a large staff, "records management" per the LGS-1 or a customized "record retention policy" is often part of a person’s (or department's) job description--and is supported in the annual budget.  For a smaller library (or museum, or other cultural institution) with less-than-robust funding, and a smaller staff, "records management" is often an afterthought.  This can cause complications when the records pile up, and there is no person--or budget--to sort through them and make sure they are properly retained/purged.

But this question is about retention periods, not the drama they can cause!  So here is the answer:

For the types of records mentioned in the question ("employee records, payroll records, sales and purchase records, mortgage and loan documents"), the retention periods vary; some are "permanent", and others are as short at 6 years.  The LGS-1 (which will pop up when you search "LGS-1") will give you the breakdown.

For an association library that doesn't want to follow the precise requirements of the LGS-1, but still wants a retention policy, below is a model policy.

Thank you for submitting an important question!

[ABC] ASSOCIATION LIBRARY

RECORD RETENTION AND DISPOSAL POLICY

Items in yellow are to be changed or removed

Policy

The ABC Library retains and disposes of records as required by law, contracts, and based on the board's determination of what is in the operational best interests of the Library.

I.        Records are retained as follows:

-Association Library Charter, bylaws, Plan(s) of Service, Annual Reports: PERMANENT

-All records made available per the Open Meetings Law: PERMANENT

-Deeds: PERMANENT

-Contracts: (includes leases, mortgages, loan documents, vendor contracts, employee benefit contracts, warrantees, use of independent contractors): Seven years after termination of all obligations and rights created by contract; in some cases, PERMANENT. See "Archives."

-Employee-related: Seven years after termination of employee.  See "Archives."

NOTE: This will be impacted by an association library's union contracts, employee manual provisions, and employee-related policies; check these documents to ensure consistency.

-Fiscal & Financial: Seven years, unless the relevant fiscal policy, document or transaction it is related to requires longer. See "Archives."

-Archives: PERMANENT

-Records pertaining to library operations (based on the LGS-1 to ensure consistency with non-association libraries in the XYZ Library System):

-Accession records: 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.

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

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

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

-Borrowing or loaning records: 0 after no longer needed

-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: 0 after no longer needed

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

-Catalog of holdings

a) Manuscript or published catalog: PERMANENT

b) Continuously updated catalog: 0 after superseded or obsolete

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

-Records documenting selection of books and other library materials:

0 after no longer needed

-Library material censorship and complaint records, including evaluations by staff, patrons' complaints and record of final decision: 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.

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

-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: 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

b) Attendance sheets and registration forms, when no fee is charged: 0 after no longer needed

c) All other records: 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

II.       Records are disposed of as follows:

At the end of the retention period, physical copies are purged via shredding as their retention period expires.[3]

At the end of the retention period, electronic records are routinely disposed of by [insert input from your IT professional].

Archives

Prior to purging, all records of the Library are appraised 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. Records retained permanently due to historic or research value are designated as "Archives."

[1] For more "Ask the Lawyer" on the LGS-1, see Board of Trustees Notes Retention. The 2022 version of the LGS-1 was, as of April 11, 2022, found here: http://www.archives.nysed.gov/common/archives/files/lgs-1-2022.pdf.

[2] I know library systems are very good about ensuring borrower records are purged from ILS once they are no longer needed, as authorized by the LGS-1.  This is just an extreme example to make my point.

[3] For more information on appropriate ways to dispose of physical copies, visit http://www.archives.nysed.gov/common/archives/files/mr_pub41.pdf.

This question comes to "Ask the Lawyer" from a public library.

As quasi-governmental entities, public libraries must follow a precise array of law, regulations, and rules for record-keeping.  We'll delve into that for those factors to answer this question.

What does that mean for association libraries, who can be a bit more free-wheeling in their records management?  This answer doesn't (quite) apply to you, but stick around, we'll make it worth plowing through the next few paragraphs.

Governments and "quasi-governmental"[1] entities, like public libraries, are subject to the requirements of Article 57-A of the New York "Arts and Cultural Affairs Law" ("57-A") which requires officers to "maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible."

57-A also gives the NY Commissioner of Education the right (and obligation) to set the period of retention for different types of records.  The current collection of these retention periods is the LGS-1, on which "Ask the Lawyer" has written admiringly[2] before.

The LGS-1 does have a specific section for libraries and library systems (rules #590-603, which every public library should be following), but it is silent on the topic of board meeting materials, which means that the more generic section 48, "Meeting files of governing body or board or agency, commission or committee thereof, including agendas, background materials and other records used at meetings" applies.

Rule 48 states that the retention period for "[t]emporary drafts or personal notes that were not circulated, reviewed, or used to make decisions or complete transactions" is ZERO "after no longer needed."

So: as long as the hand-written notes are considered a "temporary draft" or "personal notes" as part of the creation of the actual draft minutes (the retention of which is "PERMANENT" per Rule 47), they may be shredded after the draft minutes are typed up as described by the question.

BUT, I offer caution: if the hand-written draft minutes are used for any purpose other than to create an exact typescript version, including but not limited to interim decision-making before the next board meeting, or to inform the process of passing the official minutes, then they are transformed into something different than personal or temporary notes, and I advise they be retained together with the other permanently retained public library board meeting materials...which also makes them subject to FOIL.

Sounds complicated, right?  Below is a poem to help you remember (association libraries, the last four lines are for you, too...I told you it would be worth sticking around):

A public library's records must stay

At the library per A and C Law 57-A;

The retention of those library records is done

For a period set by the LGS-1;

And the public can demand to see

Those records by asking for a FOIL copy.

Chartered libraries of any kind

The Open Meetings Law must mind

And the docs the board will see

Must be shared with the community.[3]

In all of this, personal notes

turned into minutes per trustee votes

When no longer needed, can be disposed

...so long as notes were all they posed.

Hmm.   Maybe it's just easier to read the law and rules?  Just in case, I have put them below.

Thanks for a great question, and thank you for your service as a conscientious trustee and officer!

The law:

§ 57.25. Records retention and disposition

1. It shall be the responsibility of every local officer to maintain records to adequately document the transaction of public business and the services and programs for which such officer is responsible; to retain and have custody of such records for so long as the records are needed for the conduct of the business of the office; to adequately protect such records; to cooperate with the local government’s records management officer on programs for the orderly and efficient management of records including identification and management of inactive records and identification and preservation of records of enduring value; to dispose of records in accordance with legal requirements; and to pass on to his successor records needed for the continuing conduct of business of the office. In towns, records no longer needed for the conduct of the business of the office shall be transferred to the custody of the town clerk for their safekeeping and ultimate disposal.

2. No local officer shall destroy, sell or otherwise dispose of any public record without the consent of the commissioner of education. The commissioner of education shall, after consultation with other state agencies and with local government officers, determine the minimum length of time that records need to be retained. Such commissioner is authorized to develop, adopt by regulation, issue and distribute to local governments records retention and disposition schedules establishing minimum legal retention periods. The issuance of such schedules shall constitute formal consent by the commissioner of education to the disposition of records that have been maintained in excess of the retention periods set forth in the schedules. Such schedules shall be reviewed and adopted by formal resolution of the governing body of a local government prior to the disposition of any records. If any law specifically provides a retention period longer than that established by the records retention and disposition schedule established herein the retention period established by such law shall govern.

The "Meetings/Hearings"  provisions  from LGS-1

47 CO2 1, MU1 1, ED1 1, MI1

1 Official minutes and hearing transcripts of governing body or board, commission or committee thereof, including all records accepted as part of minutes: RETENTION: PERMANENT

48 CO2 3, MU1 3, ED1 3, MI1

Meeting files of governing body or board or agency, commission or committee thereof, including agendas, background materials and other records used at meetings

NOTE: Appraise these records for continuing administrative or historical value prior to disposition. Agendas may have continuing administrative value and may be useful for accessing information in unindexed minutes and for indexing those minutes. Other records prepared for or used at meetings may have administrative or historical value for documenting issues discussed at the meetings and referenced in the minutes.

See item no. 47, above, for records which are accepted as part of the minutes.

a Records not accepted as part of the minutes, including agendas, background materials and other records used at meetings: RETENTION: 1 year

b Temporary drafts or personal notes that were not circulated, reviewed, or used to make decisions or complete transactions: RETENTION: 0 after no longer needed

[1] I use "quasi-governmental" because public libraries fall into (and out of) different categories of "government" or "public" law depending on the legal issue.   For instance, public libraries are subject to the Freedom of Information Law ("FOIL"), which is part of the Public Officers Law, but the board of trustees must also abide by the NY Not-For-Profit Corporation Law.  There are good reasons for this, but it can make things complicated.

[2] Some people are fans of opera, or sports teams.  I am a fan of meticulously categorized retention periods.

[3] For more on the application of the Open Meetings Law and the new(ish) requirements regarding board meeting materials, see "Ask the Lawyer" https://wnylrc.org/raq/availability-open-meeting-documents.

In speaking to different libraries about being prepared for book challenges, I have repeatedly stressed one very important element: have your policies ready.

This question shows the depth of consideration that goes into that simple requirement.

In this case, that "depth" is found in the rocky chasm of the LGS-1, New York's end-all, be-all rules for public document management.  Need to know how long to keep records for a bingo game authorized by a village?[1]  Or how long to keep a record of exhumation?[2]  Or how long we hang onto bridge inspection records?[3] It's all in the LGS-1.

The documents the member references are sections of the LGS-1.

They look like this:

and

Looking at these requirements, the member's question is: "[S]hould the district have kept a list of all books in their libraries in any given year?"

The answer is: MAYBE, but not DEFINITELY.

Here is why:

The first section referenced by the member, at first blush, looks like it requires the retention of "book lists" for six years.  But examining that precise section, you will see the requirement is limited to records submitted prior to the "consolidation of school districts." 

So, outside of a district consolidation, section LGS-1 15, does not require compiling a list of books.

The next sections, LGS-1 598 and 599, refer to a school district maintaining records related to a "Catalog of holdings" and "Individual title purchase requisition," respectively.

We'll tackle 598 first.

598 requires that a "Manuscript or published catalog" of "holdings" must be retained "permanently."  It then requires that a "Continuously updated catalog" be retained until it is "superseded" or "obsolete."

This means that a district library's "catalog of holdings" that exists in a static form (like a print or PDF list) must be retained permanently, but a list of holdings that is ever-changing (like an ILS) is only retained until it changes form--or that form stops being useful.[4]

In practical terms, this does mean that if the library produces a static list (in print or electronic form), it must be retained forever.  That obligation, however, does not obligate the library to create such a list in the first place.  Meaning, in other words: if the library only uses an ever-changing catalog, it doesn't need to retain any particular copy.

This brings us to 599, which requires that an "[i]ndividual title purchase requisition" (the documentation showing a school library bought a book) must be retained for one year.

Again, in practical terms: while per 598, a school library is not obligated to compile a printed list showing that "Not All Boys are Blue" is in its library's collection, per 599, it does have to retain (and produce, if not otherwise accessible through FOIL) a school’s requisition to purchase "Not All Boys are Blue" if requested.

This gets more interesting as one considers that LGS-1 600 (also seen in the purple-bordered excerpt above), regarding "Records documenting selection of books" sets no minimum retention period.  Meanwhile, LGS-1 601, regarding "Library material censorship and complaint records" mandates such records be retained for at least six years (and encourages considering saving them for much longer, which strikes me as a good idea).

The upshot of these various rules creates a regime where a district is empowered to pick and choose, to some degree, what records it wants to create...but once created, imposes a very particular set of parameters for retaining, purging, and disclosing them.  This is why my answer to the member's question must be so ambiguous.

It is also why it is very important that a district have a well-developed policy on this issue.

Below are some examples of what, depending on the records a district elects to create, a district can say in answer to the question: "I want to make sure I approve of all the books my taxes paid for this year.  Can I have a list of all the books?"

[If the library maintains a published list and wants to be friendly.] "Sure thing.  We compile and publish a list of books in our collection every year as of the first Monday of September.  Do you want the one showing all the books in one particular library, or all the books in the district?"

[If the library doesn't maintain a published list, but has a continuously updated catalog, feels friendly, and allows access to library computers.] "No, we don't publish such a list.  But we do have a continuously updated catalog you can search on this terminal."

[If the library doesn't maintain a published list, has a continuously updated catalog, doesn't allow just anybody access to its computers, but feels somewhat helpful.] "No, we don't publish such a list.  But we do have a continuously updated catalog you can request a copy of."

[If the library doesn't maintain a published list, doesn't allow access to computers, and doesn't feel helpful, but does feel puckish.] "No, but if requested, we can supply you with a copy of every book requisitioned last year."[5]

[If the library doesn't maintain a published list, and doesn't want to offer alternative ways to share the information.] "No, we don't have that."

[If the library doesn't maintain a published list, and is okay risking a spat.]

"No."

Optional rider to all the above answers: "Here is a copy of our FOIL policy so you know the process for requesting our public records through our FOIL officer, and can be aware of our copying charges and the process for requesting electronic copies."

Now, as any veteran of public relations battles over school district policy knows, there's a time to be helpful, and there's a time to say "no."  I am not endorsing any particular answer, but based on a district's policy, it should know what records it keeps (and doesn't keep), and how people can access them.

From my perspective, if there isn't a need to compile information, it shouldn't be compiled.  Further, FOIL does not create the obligation to compile information if it is not already compiled.  On the other hand, waffling and appearing to dodge the question when concerned citizens are on the hunt for "objectionable material" might not be the best way to fight the battle for intellectual freedom.  "We don't have a list but we have a continuously updated database" strikes me as a glove-slap; it invites a fight...but nevertheless, if accurate, might be a perfectly valid response.

From my high horse over here in law-law land, a district should proceed from the presumption that if a book is in a school library's catalog, it belongs there; this is the stance that supports intellectual freedom, while also setting a good example for the students (but I am not the one who has to deal with angry community members storming a school board meeting).

Regardless of my personal thoughts on the diplomatic aspects of this issue, from the perspective of intellectual freedom, information access, education law, the LGS-1, and the First Amendment, here is what's important: have a sound policy governing 1) how library books are selected; 2) how library books are cataloged;[6] 3) how library books are challenged; and 4) how library books are removed, and follow that policy.

If, as part of that policy, a district has the desire and capacity to create an annual (or decennial, or whatever time span it wants) list of books in the school library catalog, great, but if such a list is created, it must be kept forever.  And if the district only uses a continuously updated library catalog, it should be clear from the policy who can access it, and how (at the school?  By appointment?  Remotely?).  And all of this turns on the district having a designated FOIL officer and process for timely responding to, assessing, and meeting FOIL requests.

So, there is my answer...and I know it rests on a dangerous triangle of law, practicality, diplomacy.   This stuff isn't easy.

I wish you a clear head, a steady heart, and a ready wit as you face whatever challenges come your way.

[1] 8 NYCRR §185.15 (2020); see schedule items 562-564.

[2] 8 NYCRR §185.15 (2020); see schedule item 136.

[3] 8 NYCRR §185.15 (2020); see schedule item 1085.   By the way, it's "6 years after structure no longer in use or inspected features have been replaced," which I find rather terrifying.

[4] Kind of whimsically sad notion: "You are needed, until you change or you aren't needed."  I would love to meet the person who wrote this part of the LGS-1; they had to be a philosophy major.

[5] I don't advise using this one.

[6] Including having a published list, or simply having a continuously updated database.

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.

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.

[1] See the advisory opinion at https://docsopengovernment.dos.ny.gov/coog/ftext/f19797.html.

[2] I am a fan of transparency, but not necessarily this new position by the COOG. But now is not the time to discuss that!

[3] From FOIL Section 89 4 (c) "The court in such a proceeding: (i) may assess, against such agency involved, reasonable attorney's fees and other litigation costs reasonably incurred by such person in any case under the provisions of this section in which such person has substantially prevailed...."

[4] As of January 2023. LSG-1 can be found here: http://www.archives.nysed.gov/records/local-government-record-schedule/lgs-1-title-page

[5] The LGS-1 does not create obligations under FOIL. That said, because it defines "types" of records, and sets their retention periods (after which they can be discarded, and thus, incapable of being disclosed), it is a handy way to think about handling "types" of records subject to FOIL.

[6] In this case, this means all but association libraries. That said, all not-for-profits should have a record retention policy, and for an association library, tracking the retention terms in the LGS-1 is not a bad place to start.

[7] http://www.archives.nysed.gov/records/laws-local-government-records-law-57a

[8] I know this is not a preferred method of decision-making for libraries (for one of many reasons, it is not optimally accessible), I am just including it as an extreme example.

First: thank you very much for your kind words and feedback.  Both are very appreciated, and I encourage users of the service to keep a dialogue going--the service is only as good as the questions and input that inspire it.

Second, just to recap my advice from the November, 2020 "Ask the Lawyer" referenced by the member, it boiled down to:

"With no clear bucket and no clear requirements, at this point, I have to answer that retention of proof of screening should be permanent."

Time, as they say, has marched on, and as the member states, the State Archives has offered some additional guidance on this topic.

Here's where I am at: I have reviewed the additional information referenced by the member, and despite that input, I am just not confident that the time periods in LGS-792 "c" and "d" are the right fit for records showing a public library's routine use of employee screening as part of their Safety Plan,[1] and I continued to advise that retention be permanent (at least for now).

Here are the three reasons for my continued hesitation:

Reason 1: LGS-1 792a-f have a clear application, and I am not certain a pandemic response is quite it

I appreciate that 792c, which is part of the "Public Health" section of the LGS-1, applies to a "positive report" of a screening, and 792d is for a "negative report of individual screened."

However, as the remaining sections of 792 show, 792 applies to screenings conducted for public health initiatives that also (might) use: summary reports, master indices of "participants," informed consent forms, and a log used to compile data extracted from the screen.  

Logs, data crunching, and "informed consent" are all part of a public health agency's toolbox for public health initiatives in response to concerns such as the transmission and impact of a dangerous virus like COVID-19.

But unlike the majority of such initiatives, which tackle challenges such as STD's, tuberculosis, and cancer, employee health screenings for COVID-19 symptoms are part of a much larger effort conducted as part of an emergency response.

Reason 2: Emergency response records under the LGS-1

Because of the "emergency response" aspect discussed above, when I first reviewed the original question, I considered the applicability of LGS-1 802 ("public health incident files") which pertains to "records related to public health emergencies, communicable disease occurrences, and epidemics." 

Under 802 (also referenced in the State Archive's resource linked by the member), the retention period for "[s]urveillance, investigation, and response records" created in response to an epidemic is THREE YEARS "after [the] outbreak has abated."

Are a public library's employee health screenings "surveillance, investigation, and response records" during a "public health incident?"  Since employers are required to report the names of employees who screen positive to their local health department--who then engage in contract tracing and outreach--I believe they could be, which debatably makes the retention period of employee screenings (positive or negative) three years.

However, even three years doesn't sit right with me.  Here is why:

Reason 3: The other reasons to keep the records

My original answer went a little beyond the scope of required retention, addressing not only the precise retention period that might be required by the NY Arts & Cultural Affairs Law,[2]  but also, the other factors a public library might wish to consider when determining how long to retain the records of employee screenings.[3]

These "other factors" include legal claims based on alleged non-compliance with required pandemic procedures, some of which could underlie personal injury claims, alleged civil rights violations or even a contract violation (which has a six-year statute of limitations).[4]

In the body of New York case law involving personal injury, civil rights, and contract claims against public libraries, one can see an interesting pattern: sometimes public libraries are treated as government agencies, and sometimes, they are not.[5]  This is why public libraries are often required by their municipality to have their own insurance.  This also means that while they might be held to the document retention standards of municipal agencies, sometimes, they won't have the legal protections of one.

My concern was--and strongly remains--that a process of purging documents that could demonstrate use of and adherence to screening programs will only disadvantage a library, even if the lost record was properly disposed of under the LGS-1.[6]  There are reasons beyond required retention to keep those records.  And without a clear directive on retention, I think it is best that a library keep a close hold on them.

In closing

I am sure no public library that documents input from State Archives about the applicable retention period and then purges negative screens after 1 year will be met with a penalty from the State. 

But as you can see in "Reason 3," the State is not my primary concern. 

With the benefit of 5 additional months since my original answer, I will take advantage of this chance to refine it to revise my above-quoted statement and change it to:

"Even when we get clear requirements, I have to answer that retention of proof of screening should be permanent, or at least until your library's attorney has determined that any advantage to the library created by retention is past, and your library has determined they are of no historical significance."

Thank you very much to the member for giving me the opportunity to re-visit this issue and to offer this updated (and hopefully improved) guidance.  I am sorry to cause you more use of storage room, but gratified to have the chance to offer this analysis!

Afternote:  Below are the relevant excerpts from LGS-1 792 and 802:

792 CO2 508, MU1 472, MI1 409

Results of screening programs, except lead poisoning

a          Summary reports on screening results: RETENTION: PERMANENT

b          Master index or listing of participants: RETENTION: 50 years

c          Positive report of individual screened, including statement of consent or participation   and authorization for release of information: RETENTION: 6 years, or 3 years after    individual attains age 18, whichever is longer

d          Negative report of individual screened, including statement of consent or participation   and authorization for release of information: RETENTION: 1 year

e          Log or other working record of screening and testing, used to compile statistics and other      data: RETENTION: 1 year

f           Anonymous H.I.V. test results and related records: RETENTION: 7 years

NOTE: Identifiable H.I.V. related records are covered by item nos. 743 and 745, and related laboratory records are covered by items in the Laboratory subsection.

802

Public health incident files, including records related to public health emergencies, communicable disease occurrences, and epidemics

a          Surveillance, investigation, and response records: RETENTION: 3 years after outbreak          has abated

...

NOTE: Appraise these records for historical significance prior to disposition. Records of unusual disease occurrences or epidemics may have continuing value for historical or other research and should be retained permanently. Contact the State Archives for additional advice.

[1] This "Ask the Lawyer," like the original, avoids the issue of whether a non-association library has decided it must follow its local government's safety plans, or generate its own, and under which order or mandate that safety plan and the library operates.  The last footnote will show you why!

[2] The Law that empowers the Archives to develop the LGS-1.

[3] FOIL and various claims of civil liability being the top reasons.

[4] What I said was: "Most people know that when you leave a paper trail, it can (with many exceptions) be used for—or against—you in court.  In the employee data arena, common uses of such evidence are labor law and civil rights claims."

[5] For a good case illustrating this, see the chain of cases here: Gilliard v. New York Pub. Library Sys., 597 F. Supp. 1069, 1074-75 (S.D.N.Y. 1984)  New York Public Library v. PERB, 45 A.D.2d 271, 274, 357 N.Y.S.2d 522 (1st Dept. 1974), aff'd, 37 N.Y.2d 752, 337 N.E.2d 136, 374 N.Y.S.2d 625 (1975); Rendell-Baker v. Kohn, 457 U.S. 830, 840, 102 S. Ct. 2764, 73 L. Ed. 2d 418 (1982)); Breytman v. New York Pub. Library, No, 05 Civ. 10453 (RMB) (FM), 2007 U.S. Dist. LEXIS 12769, 2007 WL 541693, at *2 (S.D.N.Y. Feb. 21, 2007),  Breytman v. New York Pub. Library, Dyckman Branch, 296 F. App'x 156 (2d Cir. 2008)

[6] Unless your library hasn't had a safety plan and hasn't been performing screenings, in which case, talk with your lawyer and consider the best way to mitigate your risks!

Thank you for this question.  The LGS-1 is one of my favorite rabbit holes to explore.

I took a look at Schedule Item 596, which applies to "Borrowing or loaning records."  I have put a screenshot of the section, as it appears in the schedule as displayed on the NY State Archives web site: http://www.archives.nysed.gov/common/archives/files/lgs1.pdf

As you can see in the screenshot, 596 fixes the retention period for borrowing or loaning records for school libraries as "0 years after no longer needed."

"No longer needed" is one of those phrases in the LGS-1 that renders the retention period variable.  This flexibility can be both helpful and frustrating, since a district, BOCES, or school library must determine, via policy, what "needed" means.

This can vary from place to place, but in all instances should be based on a determination of what is meant (for the district/BOCES/or school library) by "need," and then confirmed in a policy.

After that, best practice is always to purge records once their retention period is over, and for something as deeply connected to ethics, compliance and privacy as library records,[1] that is doubly true.  For school libraries, that retention period is zero, once the records are no longer needed.

Therefore: determining how long student library borrowing records are "needed" (something that may vary from library to library, district to district, BOCES to BOCES), and then purging the record as soon as possible,[2] is a good way to use the LGS-1 to enhance an institution's commitment to privacy.

Thanks to the member for bringing up this nuance.  These issues are at the crossroads of ethics, compliance and automation, and require continuous and careful attention to detail and resulting policy.

[1] Please see "Ask the Lawyer" here for a discussion of school library records, CPLR 4509, and FERPA.

[2] The LGS-1 encourages, but does not require, "the systematic disposal of unneeded records."

Before attempting to answer this one, my team and I looked to see if anyone else "out there" has tackled this question.

We scoured the usual places (NYS Empire Development's COVID site, Committee on Open Government, NY Archives, NYLA, etc.), but my staff and I didn't find anything right on point. That said, the COVID landscape changes fast, so please let us know if you find anything, and we'll post an update to this answer.

And with that shameless disclaim/plea on the record, here is my answer:

As I read it, the currently-governing Executive Order[1] requires an entity subject to the Open Meetings Law to keep the recordings until they have been transcribed—not just until the minutes have been created.

Here is my reasoning: Executive Order 202.1[2] changed the Open Meetings Law as follows:

...to the extent necessary to permit any public body to meet and take such actions authorized by the law without permitting in public in-person access to meetings and authorizing such meetings to be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed. [emphasis added]

Although the normal application of the LGS-1 would allow for the recording to be erased upon creation of the minutes—just as the member points out—the Executive Order is an overlay that super-cedes (or at least, exceeds) normal record-keeping requirements.

I realize this means a library that can't afford to transcribe the recording any time soon will have to keep the audio around.  It's possible that the state, after considering the fiscal reality of the conditions the "later transcribed" condition imposes, may eventually tinker with the requirement, perhaps simply insisting the audio be retained for a certain time after the minutes are generated.[3]

I am leaning on the side of retention, and not taking the easy way out by swapping it out for creating minutes, because access to the process, in all its glory, is the default purpose of the law.  Further, Committee on Open Government Advisory Opinion has stated that while masks and social distancing remain requirements, entities subject to the Open Meetings Law must be making the proceedings contemporaneously available via audio or video[4].  So with all that, I have to err on the side of retention, access, and transparency.

Fortunately, digital sound file storage is not too costly these days.[5]

Thank you for a thoughtful question.

[1] Found at https://www.governor.ny.gov/news/no-2021-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency [NOTE: This link was confirmed as no longer active and removed on 02/25/2022 as part of the routine review of "Ask the Lawyer" materials.]

[2] Which as of this writing, is extended through December 3, 2020, by Executive Order #72, found on 11/17/20 at https://www.governor.ny.gov/news/no-20272-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]

[3] This sounds like a nice ask to go out from a library advocacy organization.   "Please, Mr. Governor, can you waive the estimated $[AMOUNT] in estimated transcription fees incurred the same year when many localities are taking COVID-induced hits to their budgets?"  I'd sign that letter in a heartbeat.

[4] Found at https://www.dos.ny.gov/press/2020/Essential%20Meeting%20OML%20AO.pdf [NOTE: This link was confirmed as no longer active and removed on 02/25/2022  as part of the routine review of "Ask the Lawyer" materials.]

[5] Finding the budget to properly compensate qualified people to manage that storage is another question!