Public Libraries

There is a large array of insurance coverage a not-for-profit organization might be required to have, and another, equally large array of coverage this is "optional" but may be advised as wise.

Most of the "required" coverages are due to having employees.

Since most (all?) Friends groups in New York State do not have employees, we'll skip over those (unemployment, disability, paid family leave, worker's compensation, etc.), and focus on the other types of required coverage first.

With employees out of the picture, what other coverage is required?

If the Friends own a vehicle (also not too likely), automobile insurance is required.

If the Friends lease space, certain coverage (usually "general commercial liability") may be required by their lease.

If the Friends have accepted a grant or performance contract conditioned on certain coverages, those coverages must be in place.  For example, a grant to create a public mural at the Library may come with a requirement for proof of general liability insurance; a contract or MOU with the Library with which the Friends are affiliated might have a similar requirement.

If none of the above-listed "required" conditions apply, is any coverage required of a "Friends" group?

No.

This brings us to the "optional" coverage I mentioned; coverage that is not "required" but is "advised as wise."

For a Friends group that hosts many fund-raising events, some type of general liability coverage is wise (and just like under a lease or grant, may be "required" by contracts for certain event venues).

The scope of such coverage (as in, what types of claims it will kick in for) can change from policy to policy, but the basic function of such coverage is to ensure that the financial risks of conducting the events is mitigated in the event of a worst-case scenario.

What type of activities could a "Friends" group host, that merit such coverage?  As a hypothetical example, let's consider a Friends group that hosts four very popular routine fund-raising events per year: 

Event 1: A Fall "Bookride," a kids-focused event where children ride a horse-drawn carriage filled with books (instead of the more traditional hay.).

Event 2: A Winter "Library Tango", where participants buy tickets to dance the night away, with micro-events like a "Silent Book Auction,” with all proceeds for special programs at the Library.

Event 3: A Spring "Seedlings for Seniors," a tree/plant sale to ensure extra programming for senior members of the community.

Event 4: A "Summer Water Fest," an event where participants pay by the pint to douse local celebrities with water.

Each of these events have a certain—albeit small—amount of physical risk for participants.[1]  In addition, every event will take place at a location where the property owner could face some type of claim for negligent management of the property, leading to injury.

Whether it's getting kicked by a horse at the Bookride or a latex balloon allergy at the Water Fest, the way to mitigate the risk of a person sustaining an injury and bringing a legal action that could jeopardize the finances of the Friends is to either a) have insurance that covers a possible claim; or b) ensure all the risk as assumed by another entity that has insurance, and who has indemnified the Friends; and/or c) use waivers to mitigate the ability of participants to bring a claim.

As seasoned event planners know all too well, the trouble is, each of these mitigation methods bring its own complications. 

As the member points out, insurance coverage costs money, which many Friends groups would rather see go to support their library. 

Meanwhile, asking another organization (like a co-sponsor) to take on all the risk and/or supply the insurance is not always a feasible option.[2]

And using waivers, while effective if properly drafted, can be a real bummer.[3]

This is where a good insurance agent or lawyer can come in.  Either can help a group of Friends assess their actual "exposures" (what risks they face), after which the right type and amount of coverage can be selected.

If almost all the risk can be mitigated (for instance, if the only event is an annual book sale, conducted at the library, which has insurance, and agrees to accept the risk) an informed business decision to accept a small amount of risk, and not get coverage, can be made.  On the flip side, for an active Friends group with a wide array of physical events, it can be decided that ongoing coverage is worth the money.

The same goes for a final type of "optional" coverage: Director's and Officer's coverage, or "D&O," which covers certain claims (contract violation, defamation, advertising injury, theft, copyright claims) that can be made against the leadership of a corporation. 

Just like with other coverages, there is no "one" type of D&O. This means that any policy under consideration should be carefully reviewed, because some policies exclude the more common types of claims, making insured entities wonder: "Why did we pay for this in the first place?"[4]

For a Friends group without employees or many business transactions, extensive D&O might not be needed, but if the Friends are active on social media and in politics (for instance, fighting the good fight for intellectual freedom, increased budgets, and/or capital campaigns), some coverage for "advertising injury" and alleged defamation is wise.

So, what are the important take-aways, here?

First, without employees, it may be that a Friends group is not "required" to have any type of insurance coverage.

Second, a decision to obtain discretionary insurance coverage should be made based on the activities of the group, ideally with advice from a licensed insurance agent or advisor.

Third, such a decision should be revisited from time-to-time, and weighed by the full board, to ensure there is a good match between the coverage (or lack thereof) and the group's activities.

Thank you for an important question!

The New York State Education Department’s Office of the Professions, which oversees the licensure of social workers, describes social work this way:[1]

Social work is a profession that helps individuals, families, and groups change behaviors, emotions, attitudes, relationships, and social conditions to restore and enhance their capacity to meet their personal and social needs.

Social workers are trained to provide a variety of services, ranging from psychotherapy to the administration of health and welfare programs. They work with human development and behavior, including the social, economic, and cultural systems in which people function.

Sounds like a person who would be handy to have in not only a library, but perhaps in line at the grocery store, in a public park, and sitting next to you at a football game, right?

So, what would it look like (from the legal perspective) for a social worker to be embedded to work in a library?

Broadly speaking, there are three ways a social worker could offer services within a library or other not-for-profit/educational setting. Each way has its own legal and practical considerations.

The first way is for the library to employ the social worker. This would require the library to implement specific policies, resources, and insurance coverage (in other words, careful planning a budgeting), but it is doable.

The second way is for the library to contract with a social worker or agency to offer their services at the library. This would require less policy development and insurance coverage but would also require careful budgeting and a very thorough contract.

The third way would be for the library to cooperate with local departments of health and county social services to explore having professionals from the government agency on site.  In many ways, this would look like the “contract” option, but the agreement would likely be able to be far less formal.

For a variety of reasons, option #3 may often be the easiest, since there is already a lot of infrastructure in place for a county agency to support its local library or library system (the “insurance” part of things will be much simpler). That said, #2 is also fairly simple, so long as the social worker/agency can provide the required insurance coverage, and the library and provider can agree on a contract.

And option #1—the employment option—is not impossible. It just brings the biggest up-front challenges: develop a job description, policies, procedures, and insurance to support the position and all of its record-keeping and other ethical/professional obligations, and to ensure there is a firewall between the social worker’s records and other library records.

For a library that wants to explore this, it would be good to conduct a brainstorming session about what specific benefits the library would want to get from it and how they relate to the library’s plan of service.

For example: is the primary purpose so frontline staff can immediately refer patrons who may be in distress to a nearby resource for immediate assistance? Or is it so the social worker can offer community workshops and collaborate with staff on healthy programming? Once the primary goals and add-ons are determined, a job description/business plan (for option #1) or request for proposals (for option #2) could be developed to explore making it happen; the documents would address the legal/regulatory/risk factors (like ethics and how client records are kept, since they wouldn’t be “library records”).

The good news is that in 2024 there are actual, living models out there for these approaches!  While we didn’t delve too deeply, here are some links to New York libraries with social workers on site or in affiliation:

Baldwin Public Library

Brooklyn Public Library

Emma S. Clark Memorial Library

Farmingdale Public Library

Lindenhurst Memorial Library

Middle Country Public Library

New York Public Library

 

Thank you for a great question!

The short answer is yes, it's true. A school district tax levy, even if it’s a separate line on a school district bill in support of a library, can be reduced if a taxpayer challenges their assessment after the tax bills go out, and yes, since 2022, a library may have to refund overpayments.

While taxes supported directly by the voters (and distinctly designated on tax bills as for the library) are the most stable sources of annual revenue, both can be subject to the correcting and refund provisions of New York's Real Property Tax Law (RPTL 554 and 729, respectively).

For this reason (and others), it’s a good idea for a library dependent on such revenues to maintain a fund balance that can help bridge any reductions.

All that said, if your library receives notice that a reduction or refund must be made due to correction, it is wise to ask for the details and underlying documentation (and have your lawyer or accountant review them), to ensure the board is in a position to agree that the reduction or refund was issued properly.

There are about fifty more pages I could write on this topic, but that's the Big Picture, and the Big Takeaways are: 1) it can happen; 2) it is good to prepare for it; and 3) if it happens, review the details before agreeing to it.

There are a lot of questions packed into this submission!

Let's take them one at a time.

First question: "I have always been under the impression that it is illegal for public libraries to fundraise on their own, aside from 2 book sales per year." [1]

It is not illegal for a public library to fundraise.  It's just that, like starting sourdough[2], fundraising by a public library has many complications.

For more on that, see the analysis in the "Ask the Lawyer" answer posted here: https://wnylrc.org/raq/donations-solicitations-public-libraries.

Second question: If a school district public library no longer has a Friends Group, can it host fundraisers?

Yes, but to briefly summarize the "caveats" mentioned above: a public library should never rely on fund-raising to meet basic operational and strategic needs (that funding must come from the tax base and via established agreements for service). In addition, a public library's fund-raising must adhere to the extensive laws and regulations applying to the solicitation, accounting, use, and investment of such moneys.

Third question: For example, could the library itself host a bingo night and raise money?

Yes, but any event that involves "games of chance" should follow the state law regarding gaming.  For more on that, see the guidance at the "Ask the Lawyer" answer here: https://wnylrc.org/raq/donations-solicitations-public-libraries.

Fourth question: Can a school district public library send out a fundraising letter?

Technically, yes, but because of the caveats, I would say such a letter should go out after:

1. the fund-raising initiative was built into an established fund-raising plan passed by the board of trustees;
2. the fiscal controls for accounting for the money were reviewed and approved by the library's accountant and lawyer; and
3. the text of the letter was reviewed by the accountant and lawyer for compliance AND approved by the board of trustees for adherence to the strategic plan.[3]

Fifth question: Or is it important that all library staff and trustees refrain from fundraising efforts in order to separate public funds from fundraising?

I wish it were this simple, but it's a bit more complex.  If a public library deeply plans for and builds capacity for fund-raising for special initiatives, it is possible for paid staff to engage in what is called (in the fund-raising biz) "advancement".  However, once serious planning is happening on that scale, there are a variety of reasons for a non-association library to work with an affiliated not-for-profit (like a "Friends" or a foundation) to achieve the same objectives.

Sixth question: I am struggling because we have a lot of great ideas, but the future of our Friends Group is unclear.

To the director who submitted this question: you are not alone.  "Friends uncertainty" can happen, and when it does, it is a lousy situation for a director to be in.

Also: I am not surprised you have good ideas for fund-raising; library directors are some of the best sources for good ideas for "Friends" and other library supporters.  After all, directors are the people with the closest eye on the well-being and day-to-day needs of the library. 

But as your fourth question suggests, the energy of you and your staff is best spent focused on those day-to-day needs, which should only include fund-raising if the board has initiated a well-thought-out plan and strategic support for employees assisting with it (translation: there is a budget, wording in a job description, and at least three pages in the updated strategic plan for this, then the director can have responsibilities related to fund-raising... which should never be more than a very small fraction of their duties).

Third:  If at all possible, when a "Friends" group is rocky, this is a time for library trustees to step up and see if they can help revitalize the organization.[4] 

Seventh question: I am wondering what options are available to me as a library director, and my Board of Trustees, if the Friends Group were to dissolve.

There’s an array of options for a public library in this situation:

Option	Legal considerations of fund-raising	Practical considerations
"Friends Free Lite": A public library without an affiliated "Friends", who fund-raises for small initiatives like an added story hour or to fund contracted events and performers (only up to 1% or less of operating costs).	Fund-raising efforts, even at this small level, must be very strategic and tightly planned for compliance and to not generate operating funds.  Fiscal policies related to fund-raising must be well-developed and strictly adhered to.	Fund-raising capacity will be more constrained than that of a "Friends" (by both practical and legal considerations) and requires careful attention to fiscal policy.
"Friends Lite": A public library with an affiliated "Friends" where the "Friends" fund-raise for small special initiatives (under $50K a year).	Fund-raising by the Friends in the name of the library should be per CONTRACT[5] that makes mutual commitments of legal compliance, cooperation, and transparency.	Small Friends groups can be operationally lax, leading to the type of uncertainty in the member's question.  For this reason, a contract between a library and Friends should set the stage for good succession planning.
"Friends Powerhouse": A public library with an affiliated Friends, who fund-raise for large special initiatives (over $50K a year).	Fund-raising by the Friends in the name of the library should be per a CONTRACT that makes mutual commitments of legal compliance, cooperation, and transparency, with extra care about required financial filings to the New York State Charities Bureau and the IRS.	Very often, a group operating at this level may have employees or contracted assistance.  Such a group should be paying deep attention to and have policies regarding use of paid consultants[6], lobbyists, and accountants. Such a high-functional group will good succession planning.
"Advancement without or without Friends"   In this model, a public library makes strategic use of deeply planned fund-raising for long-range objectives, and it plans and budgets for in-house capacity to fund-raise, including planned giving and other planned solicitations.	Planning to have in-house "advancement" requires a deeply committed board who has mapped this strategy out in a well-developed strategic plan.[7]	If a public library develops a deep "reserve" fund, there is a risk the public (and the NYS Comptroller) will regard it as stockpiling surplus funds.  For this reason, if there is a decision to do this, the board must be very strategic about it.

All of this brings me to the spirit of the question, which is: if fund-raising isn't going so well, what is a director to do?

Trustees who are reading, this is your chance to shine.  If you are so fortunate to have a director with good ideas, it is a good idea to listen to those ideas and see if they can fit into fund-raising by the Friends or by the library itself.  But unless a job description is re-written to include specific responsibility for fund-raising, and such activity is supported by the library's policies and strategic plan (after being carefully reviewed by the library's accountant and lawyer), a director or other staff member should NOT be fund-raising.

In other words: no aspect of fund-raising should ever, ever, EVER be a casual add-on to a library director's list of duties.  While a director's talents can be tapped for fund-raising, if things are going beyond brainstorming, such responsibility should only be imposed to the degree there is a clear and vetted plan[8] for doing so.

I thought this reply was written for directors, but really, it is written for boards, treasurers, and finance committees: if a director is to work on any aspect of fund-raising (which if they do, should only be the merest fraction of their duties), or if a public library is going to fund-raise, make sure the right infrastructure is in place!

What an insightful question.

Here is my answer: no, "delegate" is not quite the right word in this context.  A more suitable phrase could be:

"Per library policy, the Director, or an employee designated by the Director, has authority and responsibility for the selection of library resources."

Here is why:

The word "delegate", in the context of a board operations,[1] pertains to outsourcing very precise responsibilities (such as managing investments[2]).

Many board responsibilities can't be delegated.  For instance, a library board has a legal responsibility to hire the library director,[3] and a legal responsibility to pass policy related to library operations.[4]  Neither of these can be outsourced (or "delegated").

But having responsibility to hire the library director and a legal responsibility to pass policy related to library operations is not the same as performing professional duties required of that director, per that policy.

Just as with other work performed by a credentialed professional, collection management should be governed by board-approved policy, but that policy should not "delegate", but rather authorize, those duties to the person qualified to perform them.

If this seems a little obtuse, here is a small poem to illustrate the point:

A board can hire a lawyer

But cannot practice law.

A board can hire an architect

But plans it cannot draw.

 

A board can hire a CPA

But can't audit on its own.

A board can hire a barber

But can't cut hair alone!

 

When a job requires credentials,

When it's licensed or certified,

The duty's not "delegated,"

Instead the action's "authorized."

 

So when selecting books to add

Or choosing what to weed,

The policy's set by the board,

But the director does the deed.

 

For these reasons, a collection management policy should emphasize that the board passes the policy governing the process, but the policy empowers the Director to set and apply the selection criteria.  The sample language above is not the only way to articulate this, but it is one way; to see another sample, ask your library system director for the model policy created last year by PULISDO and ESLN.

Thank you again for a thought-provoking question.

A "pass-through" is when a 501(c)(3) organization agrees to let a non-501(c)(3) use its tax status to accept grant money.  It’s a not uncommon arrangement; in fact, some 501(c)(3)’s are actually set up to do it so smaller and less established organizations can benefit from grant money.

Since it can give access where access would otherwise be denied, a pass-through can be a very helpful and equitable thing.  But sharing a tax status is like sharing a milkshake: you can do it—and it's a sweet gesture—but it comes with risks.

What are those risks, and how can they be handled?

At the bare minimum, any public library considering serving as a pass-through must have a written, board-approved policy for doing so, and the policy must include:

• How does serving as a pass-through serve the library's mission and long-range plan, and how do they select pass-through affiliations that stay within that purpose?
• What is the admin fee for serving as a pass-through (usually no more than 10%)?  NOTE: the admin fee is essential for a public library since it cannot offer the accounting and other services associated with being a pass-through without being remunerated at least at cost.
• Does the library have the accounting and administrative capacity to safeguard the money and monitor that all funding requirements have been met before it is disbursed (since failure to meet them can require a claw-back)?
• The contracts for the grant must be kept for 6 years.
• The library's accountant should be consulted before any pass-through is approved, so it can be assured that the library can properly account for the funds.
• The library must keep in mind that a failure to meet the requirements of the grant could impact future funding from state/federal sources AND being associated with funding from a source (even just as a pass-through) could bar the library from obtaining funding from the same source for its own project.

There are risks to both state and federal legal compliance, as well as contract compliance for an individual grant, if these items are not addressed properly.  For this reason, many NFPs just say "NO" to requests to be a pass-through.

A related but separate solution to this type of need is the library serving as the grantee and bringing in the potential "partner" as a subcontractor (or "sub-awardee").  In that scenario, the library applies for the grant and then sub-contracts with the person/org who will do most of the work.  (This relationship is usually written right into the application for the grant).

Bottom line: if the library wants to offer services as a pass-through for mission-aligned organizations, it can, but it should have a written policy and be ready to spend administrative time 1) monitoring the grant terms and 2) accounting for the grant.  Once a policy is in place, requests can be evaluated, and pass-through relationships can be governed in accordance with it.

Still not sure if your library should do that? Here’s a litmus test:

If a library is not prepared to have its staff spend around ten hours of admin time (or more) on it each fiscal year, then the answer should be a "we do not have the policy or capacity to grant this request".  If the library feels like the project is worthy enough, it could then offer "however, the library will consider applying for the grant directly, with your organization as a subcontractor."

I hope this is helpful!

First: I'd like to thank the libraries and the library system who brought up this issue.  The questions raised in this submission only materialized because they were committed to careful reading of the law and to doing the right thing.

Second: before answering, I have to set out two caveats.

Caveat #1: before feeling constrained by Public Officers Law Section 3, a town public library should check its charter, because if it hasn't been changed since April 13, 1921[1], the library may already have an alternate method of trustee appointment.[2]

Caveat #2: prior to diving into the question as created by state law, a town public library interested in this path should check its charter and bylaws, since any residency exceptions must not only be consistent with the law, but consistent with those foundational documents.

And with that...

YES, the residency requirement created by Public Officer's Law Section 3 can be changed by local law, and yes, after careful assessment, this can be the way for a town public library to address a trustee shortage.

I put the first "YES" in caps because for the casual searcher, the answer at first appears to be "NO."  This is because back in the 1950's and into the 1970's and 1980's, towns did not have the authority to change the residency requirements for library trustee appointments, and many cases and official opinions set that out in legal stone; an example of this vehement denial is the 1985 New York State Attorney General commentary here.[3]

However, in 1991, the New York State Legislature amended Section 3 of the Public Officers Law to add sub-section 24, allowing the Town of Greenburgh to appoint any person residing in NY as any officer.

According to 1997 opinion of the New York State Attorney General found here[4], the "Greenburgh effect" means Towns may, by local law, designate any position as not requiring residency.

The Attorney General's reasoning:

"For home rule purposes, a "general law" is a State statute which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages. Municipal Home Rule Law § 2(5). It is thus significant that the Legislature has amended section 3 of the Public Officers Law to establish a special residency requirement for any appointed public officer in the Town of Greenburgh. Public Officers Law § 3(24) (first subset). An appointed public officer in the Town of Greenburgh now may reside anywhere in the State of New York. This exception for the Town of Greenburgh has rendered section 3 of the Public Officers Law, in its coverage of appointed town officers, a special, rather than a general law. In establishing residency requirements for appointed town officers, section 3 no longer applies in terms and in effect alike to all towns of the State.

Under home rule authority, since section 3 no longer is a general law with respect to the residency of appointed town officers, any other town may enact a local law inconsistent with its provisions establishing a residency for an appointed town office at least as broad as the residency established for appointed officers of the Town of Greenburgh."

There has been no case law contrary to this Attorney General commentary since 1997.[5] 

Because of this, local attorneys for towns[6] across the state have been able to advise their clients to adopt local laws "establishing a residency for an appointed town office at least as broad as the residency established for appointed officers of the Town of Greenburgh."

Of course, a town public library and town board struggling to find qualified and willing trustees should thoroughly examine this option before working with the town attorney to draft the local law enabling it.  Cultivating trustees within the sponsoring municipality is a critical way to have the supporting community involved and engaged in the operations of the library.[7]  For this reason, putting parameters on who from within the state can be appointed (perhaps limiting selection to the area of service, if it exceeds the town's borders, or limiting it to the county or library system area of service) makes sense. 

And remember, before considering this option, a library should examine its charter.  If the law allows trustees who reside outside the town to be appointed, but the charter language sets stricter criteria, there could be a concern.  So before asking a town board to pass a local law[8] allowing non-resident trustees, examine the charter first![9]

Thanks again to the libraries and the cooperative library system with the tenacity and patience to closely examine the details and pose these questions.  The opportunity to do a deep dive on these issues always brings somet

The answer to these highly specific questions will assume readers have reviewed the ALA's excellent general guidance at https://www.ala.org/advocacy/privacy/guidelines/videosurveillance and the "Ask the Lawyer" guidance here: https://wnylrc.org/raq/patron-privacy-and-police.

With that background taken as read, let's address these questions related to a closed-circuit camera with audio recording at a school district public[1] library:

Is it legal to record sound [and/or] it is a violation of patron privacy?

In New York, recording third parties without their permission[2] is illegal "Eavesdropping" per Penal Law Section 250.05: a class E felony.

Section 250.05 is part of Penal Law Article 250 "Offenses Against the Right to Privacy," so from both the legal and ethical perspective, such recording is a violation.

Can board members review the tapes?

Assuming the tapes are visual only (and not illegal Eavesdropping), from the legal perspective, a board member could view a security camera recording, but from the ethical and risk management perspective, such viewing should only be per an established policy.

How does this all play out in the real world?

Put plainly:

A non-association library board in New York State considering use of a security camera system should ensure such a system is only used once there is a policy in place, and that policy should address the following questions:

• What is the purpose of the cameras?
• Where are the cameras pointing?
• How does the library ensure use of them is consistent with applicable ethics?
• Are any of the generated recordings patron library records?
• How long are the recordings kept for?
• Once the retention period is past, how are the recordings disposed of?
• How are the records secured against data breach or misappropriation?
• Who gets to view the recordings, and why?
• How will FOIL requests for the footage be handled?
• How will other requests for the footage be handled?
• When the library deems it necessary to retain recordings past their retention term, how are the recordings saved?
• Will any of the records be archived?

Below is a template policy for a non-association public library addressing the above questions.  Areas in yellow may be customized for the needs of a particular library (make sure you remove the footnotes).

Thank you for an important array of questions.

 

NAME Library Policy Regarding Use of Security Cameras and Recordings	Adopted by the board on: DATE
Position responsible for coordinating compliance: Director[3]	Reviewed by the board: Annually

 

POLICY

To achieve the desired balance user privacy assurance and on-site security, any use of security cameras and of records generated by such cameras ("Security Recordings") in the Library will follow the below provisions.

A. Limited Use

Cameras will be used to generally monitor the areas noted on the floor plan or survey attached as "A."[4]

Cameras will never be used to monitor the following: [insert specific areas or angles to affirmatively be excluded; common examples are bathrooms, reference desk, check-out desk].

Cameras will be set up so they do not record the content of media accessed by patrons.

B. Notice

In all areas subject to security camera recording, the Library will post a sign: "The Library values patron privacy and security.  This area is monitored by security cameras."[5]

C. Patron Records

Security Recordings showing people are considered to be patron records and the Library will not release such recordings to third parties without a court order or subpoena.[6]

D.  Viewing and Use of Security Recordings by the Library

The Library will use Security Recordings to address general and specific security needs, including but not limited to:

• Assessing safety concerns
• Addressing Code of Conduct-related incidents
• Assessing operational and facility needs
• INSERT

When footage must be reviewed by the Library, such review must be authorized by either the Library Director or by a resolution of the Library’s Board of Trustees.[7]

When a Security Recording must be retained past the period set by Section G of this policy, for any reason, the basis and plan for the retention must be authorized by either the Library Director or by a resolution of the Library’s Board of Trustees.

E.  FOIL Requests

Request for Security Recordings generated at a particular date and time shall be evaluated by the Library per its FOIL policy.

In keeping with the applicable laws, Security Recordings featuring Library users shall not be made available in response to FOIL requests.[8]

F.  Warrants, Subpoenas, Litigation Hold

Requests to disclose copies of or to retain Security Recordings per a warrant, duly issued subpoena, or "litigation hold"[9] demand will be evaluated by the Library Director or designee with advice of legal counsel as needed.

G. Retention & Data Security

The Library retains Security Recordings for [period decided by Library], unless a specific segment is required to be retained for operational purposes, in which case, such segment is retained for three (3) years as required by the Retention and Disposition Schedule for New York Local Government Records.

The Library may also identify certain footage it decides is worthy of being retained in permanent archives.

H.  Budget and Capacity

The board shall no less than annually review of the budget and operational capacity needed to assure that the retention, disposal, and security of Security Recordings may remain as required by this policy.[10]

Short answer: You can't find anything to verify that claim because what is claimed is wrong.

Long answer:  The rental business may be wrong, but I can't blame them the way I can blame someone for parking in a "No Parking" zone.[1]

That's because if they are basing their answer on a plain reading of the relevant regulations (N.Y. Comp. Codes R. & Regs. Tit. 20 § 529.7), the exemption applies only to "sales."

Here's the language from the regulations:

(h) Sales to exempt organizations.

(1) Any sale or amusement charge to or any use or occupancy by an exempt organization to which an exempt organization certificate has been issued is exempt from sales and use tax.

So, a literal reading of the regs suggests that the exemption applies only to sales (and amusement charges[2]); there is no reference to renting or leasing or borrowing equipment.[3]

However, a quick check of advisory opinions[4] from the New York Department of Tax & Finance confirms that rental fees are considered exempt, too. Here is an excerpt that confirms this:

When Petitioner, within 90 days of the transaction, accepts in good faith from its customer an appropriate and properly completed exemption document showing that the purchase is exempt from sales tax, Petitioner is relieved of its burden of proving that the transaction is exempt and need not collect tax on sales or rentals to that customer. See section 1132(c) of the Tax Law.

...

When its customer is a building owner that is an organization exempt from sales tax, Petitioner’s rental or sale of equipment will be exempt from tax.

...

The organization claiming exemption from the tax must be the purchaser of record on Petitioner’s bill or invoice and must be the payer of record. See section 529.7(h) of the Sales and Use Tax Regulations. [emphasis added]

So, there you have it: rentals to tax-exempt organizations are exempt just like sales.

I am sorry you are having to put up not only with mold but also with overly literal HVAC vendors.  I hope you can show them the opinion I've linked to and reach a good resolution.  If not, I suggest you have them call their accountant or the helpful folks at the New York State Tax & Finance Information Center: https://www.tax.ny.gov/help/contact/

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.

 

NAME Public Library FOIL Compliance Policy	Date adopted: INSERT
To be posted at: INSERT	Position primarily responsible for coordinating compliance: INSERT
Records Access Officer: INSERT   FOIL Appeal Officer: INSERT   Position Responsible for annual check of Subject Matter list: INSERT	Review annual at the MONTH meeting by the Trustees to ensure familiarity, compliance, and budget support.
Appendix: Model FOIL Notice for posting	Related policies: Record Retention Policy

 

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.

 

NAME Public Library FOIL Compliance Public Notice	Date adopted: INSERT
To be posted at: INSERT	Position primarily responsible for coordinating compliance: INSERT
Records Access Officer: INSERT   FOIL Appeal Officer: INSERT   Position Responsible for annual check of Subject Matter list: INSERT	Review annual at the MONTH meeting by the Trustees to ensure familiarity, compliance, and budget support.
Appendix: Model FOIL Notice for posting	Related policies: Record Retention Policy

 

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