Patron Confidentiality

Before I dive right into the answers (we are going to address every question), let me say what a lot of readers are probably thinking: most tech-savvy people know how to modify their phone so a recording they made doesn’t show up in their files. So, this answer will not only review the questions about sensitivity and liability but also discuss the practical concerns of enforcing a Code of Conduct when a decision turns on dubious evidence.

First, let’s talk about a policy on recording.

Any public library should feel confident adopting a policy limiting use of recording devices in areas where privacy of library users is assured.

For some libraries, this rule may be limited to the service desks and common rooms where people are reading, using computers, and accessing other specific library services and programs. For others, this rule may apply to the entire interior of the library.

Some libraries may even want to bar recording in their parking lot and grounds (a factor relevant to the member’s questions), but this may be harder to justify on the basis of privacy, as there is no guarantee of privacy when walking out in the open.

So, for argument’s sake, let’s say the member’s library does have a policy, but it doesn’t extend to the outside. What else could help with the situation presented here?

In addition to a policy on recording in the library,[1] any library can use its code of conduct to prohibit the deliberate antagonism[2] of one person by another on library property.

Once a person reports such a violation, it is up to the director of the library (or librarian in charge) to ensure the policy for evaluating a code of conduct violation is followed.

Library codes of conduct vary from place to place, but a good policy will always follow this pattern: notify the person of the accusation in writing, let them know the penalty that could be imposed, and provide a reasonable opportunity for the person to respond prior to that penalty starting. If the matter involves a very clear risk to safety or compliance (a physical threat, sexual harassment, etc.), the person can also be temporarily barred from the library while the matter is pending, if the policy allows it. After a decision is made, there should be one level of appeal (usually to the board of trustees after a decision by the library director, but in a larger organization, the final appeal can be to the director after a decision by another employee).

If the matter is being handled by law enforcement, the library should still follow its own policy before removing library access and privileges (this is true even if there is an order or protection put in place).

When the accused person is a minor, that person’s parent or guardian should be notified to the degree consented to by the minor (possibly as part of getting a library card) or as stated by the policy.

If, after being accused in writing, a person volunteers to “prove” their innocence by showing their phone, the library should consider if the risk of intrusiveness[3] is worth it; likely it is not. Far better is to hear from the complaining person and the accused person a recital of what happened, decide what is most likely to have happened, and if a violation did occur, decide what penalty will help create assurance of respect and safety going forward.

This is particularly true in a case like this, where unless some other aspect makes the recording harmful (Has it been shared on social media?[4] Was the person being bullied at the time?), the consequences for doing what the youth was accused of will likely be a warning.

How would this “due process” roll out? After getting the complaint, it would start with a letter stating:

On DATE, a library user reported that she was concerned that you were recording her on library property (outside, at TIME), after she requested not to be recorded. If this happened, this is against the Library’s Code of Conduct, which prohibits INSERT.

The Library will be reviewing this report, and we invite you and your parent/guardian to provide a statement in response. You may also come in at DATE/TIME to discuss this with me.

Because it is important for library users to feel safe and respected at the library, if this did occur, it may result in a warning, or a temporary loss of library privileges. If we impose a temporary loss of privileges, you will be able to appeal it before it goes into effect.

Although the situation in the member’s question does not require it, if a reported violation is more serious (a threat, an injury, property damage, etc.), here is the language for a temporary bar on access to the premises:

Because this report relates to [a threat to safety, serious injury, etc.], until this is resolved, you are barred from library premises. You may still use library services remotely. If you need assistance to arrange services remotely, please call NUMBER to work with POSITION[5] or e-mail PERSON.

Taking this careful, deliberate approach does more than assure due process; it also slows things down and gives an accused person and their accuser time to think. It makes sure both parties can be heard. If the people involved are minors, it provides adequate notice and opportunity for parents and guardians to be involved.

Just as important: it is gentler on library workers, who should not have to serve as the sudden judge and jury of disputes between patrons (but of course, often do).

This brings things full circle to the original question: Is the library at risk if a teen patron volunteers to share contents of a cell phone?

The answer to that is YES. That risk includes everything from the simple optics of invading the privacy of a minor to compromising their rights without their parent or guardian present. It is a situation that begs for a formal complaint to a board and/or for public relations fallout. When you consider that the evidence to be provided is probably of dubious value, these risks completely undermine the worth of such access.[6]

While it can take more time, addressing things in a calm, formal manner can teach people (particularly young people) that they have rights. For certain disputes,[7] if the library identifies a way to mediate the issue[8] and help the young library users reconcile their differences, that is fine, too.

Thank you for a thoughtful array of questions.

When advising on a policy or set of terms for a library or library system to adopt for children’s library cards, I ask for the following information:

• What are the key objectives of offering a child their own card at your library or library system?
• Does your library need to enforce fines and/or replacement fees?
• Is there anything accessible via an “adult” card that your library would not offer access to via a “youth” card?
• How does your library like to work with parents and guardians?
• Does the card enable more than borrowing materials from the library? (Is it used for computer access, printing, maker space, etc.?)

I ask these questions because in New York State, children can’t enter enforceable contracts, which makes it hard to collect fines and fees. In addition, a lot of the tomfoolery that can lead to a kid losing library privileges can be more easily addressed if the library is in a position to contact that kid’s parent or guardian, but since library records are confidential, the only way to share the information is with informed consent.

“Informed consent” means that when a person signs up for a card, they are informed of the terms (like their parent being a co-signer who is responsible for their replacement fees), and they expressly consent to them.[1]

With that all out there, let’s tackle the member’s questions, starting with the practice of requiring parents/guardians to sign their child’s agreement for a library card.

QUESTION: Is the signature to allow for “parent permission” to access the library?

ANSWER: No, unless the library’s policy[2] sets things up this way. There is no default federal or state law that expressly denies minors access to a NYSED-registered public library.

QUESTION: Are public libraries legally obligated to obtain parent permission before a child of a certain age accesses library materials or services?

ANSWER: There is no default federal or state law that expressly denies public library access to minors.

CAVEAT: Local laws are often oddly specific (and outdated, and unconstitutional) on things like this, so it is possible a local law could require parental consent to get a library card. Whether such a local law would stand up to a legal test is another matter.[3]

QUESTION: I’m assuming that the library would not be liable if, for example, staff allowed an 11-year-old without a library card to read any book they liked within the walls of the library?

ANSWER: “Liability” is a broad word; it covers both criminal and civil (including financial) liability. But if a library is providing an eleven-year-old with access to library materials that were acquired, cataloged, and accessed per library policy, your assumption is correct: there should be no liability.

QUESTION: Does this apply to a child of any age? (I realize unaccompanied minors will eventually come into play).

ANSWER: Yes, regardless of age, there should be no liability for providing access as allowed by the Education Law and library policy.

That said, the younger the child, the more the law will expect that library policy is being used to not create an active hazard. But as the question alludes to, there is a difference between toddlers running amok in the Rare Books room creating physical havoc and a child of any age accessing a print or online copy of American Lion (a Pulitzer Prize-winning book that discusses genocide, slavery, and violence, because it is about the presidency of Andrew Jackson)[4]. One is a physical hazard and a property risk; the other is a simple exercise of the right to read.

QUESTION: So, by extension, is granting an 11-year-old a library card without parent consent legally permissible?

ANSWER: I wouldn’t say “by extension” because that implies an argument needs to be made to provide library privileges to minors. There is NO requirement for parent/guardian consent for a library card unless the library has included it in their own policy (or an oddball local law requires it, which should probably be challenged).

QUESTION: Is the signature [of a parent] an acknowledgement of responsibility for the library materials on behalf of the child?

ANSWER: In and of itself, the signature is simply proof that the adult signing the card agreement accepts whatever terms are in the agreement. So, as reviewed above, if the library or library system issuing the card has made an adult’s acknowledgement of their responsibility a conditions of their child getting a card, then yes.

Along with that accountability, the signature of the parent, along with the informed consent of the child, can be used to put in place things like:

• Sharing a child’s library records with a parent (being able to answer the question “What books does my kid have out? I have to help him return them.”)
• Sharing a child’s fine/replacement fee information with a guardian (being able to answer the question “My granddaughter shoveled the walk yesterday so I would pay for the book she lost. How much is it?”)
• Disclosing and discussing loss of privileges/access (being able to say “As you know, your child doesn’t have computer privileges right now, because he put gum in the all the ports. We look forward to him being back at the keyboard in six months.”)

Many library card applications prompt for this specifically, but according to NYS law, is a parent/guardian responsible for library materials checked out to a minor in their care regardless?

ANSWER: No, except for in cases of extreme intentional damage, where General Obligations Law 3-112 might create that civil (not criminal) liability.[5]

That said, there could be a rogue local law out there. New York is a big place with many odd local laws on the books.

QUESTION: If a 15-year-old minor lost library materials or incurred fines or fees, would their parents still be legally responsible even without giving permission for the card?

ANSWER: No (and not even if they gave permission for the card, unless they also took accountability for fees); the sole exception to that is if the money was due to damage so extreme that a claim could be made under General Obligations Law 3-112.

QUESTION: COPPA and the collection of PII (for online library card signup). Though not required as a non-profit, our library chooses to comply with this policy, requiring parent/guardian consent of online card signup for children 12 and under. Does this mean that a child aged 11 could still, within legal boundaries, apply for a library card in person without collecting consent?

GRATUITOUS COMMENT: In general, public libraries should avoid complying with laws that they don’t have to comply with. COPPA was adopted to protect minors from predatory online commercial behavior; libraries have a completely different (and more rigorous) set of ethics and laws to guard against that concern. That said, it is essential for a library to require and confirm that any commercial vendor or affiliate being used to provide library services is following COPPA.

AND WITH THAT OUT OF THE WAY, HERE IS THE ANSWER: In New York, there is no law barring any person of any age from getting a library card. This means:

1. anyone from 0 to “whatever” can get a library card; and
2. no one can tell them “no” (except on a neutral and rational policy basis, like, “We only give cards to people who live in or work in Buffalo,” or, “We require card holders to be able to be held accountable for fines and fees.”).

That being said, libraries that want to impose conditions on youth and require the agreement of a parent/guardian can do so; the trick is to make sure the reason for the adult’s signature, the conditions it imposes on them, and the rights of the youth involved all line up.

Here are just a few examples of how that can be done:

• Issuing a “Simple Borrowing Card” that enables borrowing at any age, but due to lack of informed consent and no parent/guardian signature of minors, and perhaps lack of additional information (like address), can’t enable certain things (record sharing, fees, fines). For that reason, borrowing privileges might be limited by number of items, to e-resources, or temporary access.
• Issuing a “Full Privileges Card” that enables full range of privileges for adults or youth, but for those under 18 (and thus harder to hold to account), only given with the cardholder’s informed consent and parent/guardian’s acceptance of fiscal responsibility. Could be set up so the accountability accepted by the co-signing adult disappears at 18.
• Issuing a “Supported Borrowing Card” that enables full library privileges but, with informed consent of the cardholder, one or more supportive adults agree to help out with managing returns and other responsibilities that require access to confidential library records. This option could be helpful for cardholders who are bad at returning items,[6] adults who may need extra help for any reason, and youth at libraries that don’t need to have an adult on the hook for fines/fees.

Closing thoughts

This topic elicits much passion and strong feelings from many perspectives.

Many parents, of course, want to be engaged in their child’s selection of media, and being a required part of the library card process is one way for them to play that role. Some libraries might choose to encourage this engagement through policy, while other libraries might simply facilitate it as a by-product of requiring a responsible adult on the card to address concerns related to behavior and borrowing.

At the other end of things, children have a right to read and see the world that by nature is beyond the scope of what many parents/guardians envision, while libraries have an obligation to not discriminate on the basis of age when it comes to library access.[7] So while conditions that enable parental engagement can be imposed and parental engagement can be encouraged, such conditions should never do so in a way that unduly burdens library access.[8]

It is a balancing act, but by having clear reasons for requiring parent/guardian signatures and asking for no more than what is required for those reasons is key.

Thank you for a powerful array of questions.

This is a VERY sensitive issue. There are many factors that could contribute to a person sleeping in a public space, including:

• An undiagnosed medical condition
• A diagnosed medical condition
• Non-medical factors impacting behaviors
• Temporary or serial lack of a safe, stable place to rest
• Simply wanting to take a nap[1]
• Any combination of the above-listed factors

Each one of these brings their own array of legal (and ethical, and moral) considerations.

But before we get into all that, let's discuss: for purposes of this question, what is "sleep"?

For purposes of this question, let's call "sleep" a "state of healthy, restful, and restorative unconsciousness."  In other words, "sleep" is that great thing we all do when our eyes get heavy, we yawn, and lie down, dozing into blissful unawareness.

Sleep: we all do it, and many of us love it.[2]

Now, let's talk about what sleep isn't for purpose of this question.  "Sleep" isn't, for purposes of this question; the result  of a concussion, a seizure, a stroke, an opioid overdose, or dangerously low blood sugar.   And yet, to the untrained eye, any one of these dangerous conditions could be mistaken for "sleep."[3]

Because of this, no matter how much my bleeding heart and sense compassion want to say, "Just let the person sleep in the library, and don't say anything," I can't.  I just can't bring myself to normalize ignoring what could be "sleep" one day, and a diabetic coma the next.[4]

That said, because it could be related to a real or perceived medical condition and/or disability, denying or restricting library services (including the right to simply be present in the library) on the basis of simply falling asleep could pose risks of disability discrimination.  Sleep happens, folks, and sometimes people can't help it.

So, what is the solution, here?

Well, as with many things, there is no one "right" answer.  But I will say:

1.  Every library should have a policy, or at least a "standard operating procedure" (or "SOP"), regarding "Suspected or Actual Medical Events in The Library."   That policy should address (among other things) what to do about perceived loss of consciousness or coherence by library users.[5]

2.  A" Suspected or Actual Medical Events in the Library" policy or SOP can also address incidental (meaning unintended) and deliberate use of the library for napping.
3.  This is where a library's discretion and autonomy kick in.

A library can decide if it is going to normalize sleeping in the library, or not.

If a library decides NOT to normalize sleep in the library, a simple statement such as "For assurance of safety, the library is a no-nap, no-sleep zone.  Thank you for helping us maintain this rule.  We understand that sleep happens; if you need to request ADA accommodations due to this rule, please contact NAME at INFO."   Then, as a rule, patrons who fall asleep should be awoken (just as patrons who bring food in might be asked to remove it, or patrons who don't wear shoes might be asked to put some on).

On the flip side, if a library decides, as a matter of policy, to allow users to sleep in the library[6], such a policy can also create the protocol for "safe napping," with those planning to sleep notifying staff, so the nap is not mistaken for an overdose, seizure, etc.

NOTE: Before selecting this option, a library should check with its general liability insurance carrier to make sure it is consistent with the library's risk threshold and coverage.

What does a "Suspected or Actual Medical Events in the Library" with a "sleeping" section look like?  Here is an example (with both a "sleep okay" and "no sleep" option at the end):

The XYZ Community Library is a welcoming, service-oriented, and inclusive space for all. To promote the health and safety of those using our library, the following possible medical events will result in the staff calling 911:

• Any perceived or actual loss of sustained coherence or consciousness;
• Any library user exhibiting signs that they may require emergency medical attention,

who does not expressly instruct staff that immediate medical attention is not required;

• Any person requesting emergency medical response.

Definitions

For this policy, "loss of sustained coherence or consciousness" is the inability to communicate meaningfully with library employees in the user's primary language.

For this policy, express instructions to staff that "immediate medical attention is not required" may be disregarded at the considered discretion of the library employees; such a decision will be based on consideration of: the specific facts of the situation, respect for the agency of the user, and respect for the mission and operational needs of the library.

ADA

If a library user has a medical condition that can potentially result in perceived or actual loss of coherence or consciousness, you may use the library's ADA Accommodations policy to arrange reasonable accommodations so your library experience is not unnecessarily impacted by this policy. For example, if a library user has narcolepsy and wishes to be woken in the event, they fall asleep, the library can consider a reasonable accommodation such as allowing the user to use a specific type of alarm in an otherwise quiet space.

Specific Situations

Whenever possible, the library uses the following specific guidelines from the CDC with respect to common medical events that can impact coherence or consciousness:

Seizures

Seizures do not usually require emergency medical attention. Only call 911 if one or more of these are true:

• The person has never had a seizure before;
• The person has difficulty breathing or waking after the seizure;
• The seizure lasts longer than 5 minutes;
• The person has another seizure soon after the first one;
• The person is hurt during the seizure;
• The seizure happens in water;
• The person has a health condition like diabetes, heart disease, or is pregnant.

Suspected opioid overdose
Call 911 if an overdose is suspected.

Recognizing an opioid overdose may be difficult. If it is unclear, treat the situation like an overdose and proceed with treatment. Even if the patient wakes up or seems better after one or two doses of naloxone, emergency medical assistance is still necessary.

Severely Low Blood Sugar

Blood sugar below 55 mg/dL is considered severely low. If any of the following happens, you should call 911:

• A person with low blood sugar passes out;
• A person with low blood sugar needs a second dose of glucagon;
• A person with low blood sugar had glucagon but are still confused;
• A person with low blood sugar stays too low 20 minutes after treatment or doesn’t respond to the usual treatments.

Concussion
Signs and symptoms of a dangerous concussion can include:

• One pupil larger than the other;
• Drowsiness or inability to wake up;
• A headache that gets worse and does not go away;
• Slurred speech, weakness, numbness, or decreased coordination;
• Repeated vomiting or nausea, convulsions or seizures (shaking or twitching);
• Unusual behavior, increased confusion, restlessness, or agitation;
• Loss of consciousness (passed out/knocked out). Even a brief loss of consciousness should be taken seriously.

Call 911.

This policy, and sleeping in the Library

CHOICE 1: USE IF THE LIBRARY DECIDES TO NOT ALLOW PEOPLE TO SLEEP IN THE LIBRARY Because loss of consciousness can be a sign of a medical emergency, library users are asked not to deliberately sleep or nap in the library.

If a library user is asleep in the library, staff are instructed to wake them.

In applying this rule, the library will follow the requirements of the ADA; if a library user has a medical condition that can cause uncontrollable sleep, at that library user's discretion, they may alert staff so accommodations can be made (see "ADA" above).

CHOICE 2: USE IF THE LIBRARY DECIDES TO ALLOW PEOPLE TO SLEEP IN THE LIBRARY

If you have a medical condition that can cause uncontrollable sleep, at your discretion, you may alert staff so accommodations can be made (see "ADA" above).

If you simply find that the library is a nice, quiet place for you to take a nap, please alert us that you "Plan to take a nap" so our staff knows that you are asleep by desire, and not experiencing a medical emergency causing loss of consciousness or coherence. We'll give you a nice arrangement of purple flowers[7] to keep near where you're sitting so staff know you're deliberately using the library space to rest and restore yourself.

Users must limit planned napping in the library to no later than one half-hour before close, so you have time to gather your thoughts and energy before it is time for us to close up the building.[8]

If your nap creates loud snoring or other disruption, we may have to wake you! Please be gracious to staff who are responsible for making sure the library is a welcoming and inclusive space for all.

As with any template, before adopting a policy based on this one, review the final version with your lawyer (and, as noted above, your library's insurance carrier).

And a final note: I truly wish I had a better answer to this question.  As I said at the beginning, this is a VERY sensitive issue.  But if a commitment to library access, safety, and mission guide the decision, your library can find the best answer for  YOUR library.

Thank you for this tough question.

 

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[1] This bullet might be more properly be phrased “Sometimes people just want to take a damn nap,” meaning that forces that get in the way of said nap are unreasonable.  I have to disagree in this case, but I get it.

[2] And if you suffer from insomnia, you may not do it enough.  I feel you, fellow lying-awake-at-2AM-person.

[3] If you are a trained medical professional qualified to diagnose of a concussion, a seizure, a stroke, an opioid overdose, or dangerously low blood sugar, this statement obviously doesn't apply to you.

[4] One of my children has Type 1 Diabetes (the kind where you can't make your own insulin, because your immune system attacked the Beta cells in your pancreas) so this issue hits close to home.

[5] When in doubt, call 911.

[6] Just in case it isn't readily apparent, I am truly neutral on whether or not to "normalize" sleeping in a library.  Truly, I can see the benefit to a decision either way; the point is to make a deliberate decision based on a commitment to access, safety, and smooth library operations.

[7] It doesn't need to be flowers (purple or otherwise), that’s just me being cute.  The point is having a signifier or system, so employees know the lack of consciousness didn't start as a medical issue.

[8] I worked on this question while sitting in my back yard on a sunny day in May. I asked my 7-year-old neighbor, Matt, who is possessed of both a wise spirit and a blunt nature, if he thought people should be able to sleep in the library.  "No," he said, after a moment’s reflection.  "They might not be seen and could get locked in for the night."  He then asked me: "You do this for your work?" Kids are the best.

There is no one right answer to this question, but there is a formula for any library to come up with its own, unique answer.

Here is the formula:

[Situation] x [Ethics + Law] / [POLICY/Precedent] = YES or NO

Let me break this approach down.  And trust me, I will give a clear reply to the member's question at the end of all this.

The formula starts with the situation.  In the scenario we have here:

"Local police walked through our Library earlier today with no explanation. Later on, we noticed 2 teens on premises, who we assume should have been in school. We thought the police may have been looking for them as truants, but that is not confirmed."

There is a lot that can be said about this description, but one important aspect of it is the library's care to not reach a conclusion about why the teens were at the library instead of school (while the member describes an "assumption," there is no action on that assumption).  And as noted, law enforcement was not called; rather they "walked through...with no explanation."

This situation is then multiplied by the combined factor of ethics and law.  Both the ALA and NYLA Codes of ethics emphasize patron confidentiality.  Meanwhile, New York's Civil Practice Law and Rules ("CPLR") Section 4509,[1] the state law requiring a subpoena or judicial order before a user's library records can be shared without that patron's consent, does not define "library records" other than to state that they include "personally identifying details."  This is why whatever the situation, ethics, and law are, the answer must be assessed under a library's policy governing patron records (while considering past applications of the policy, to ensure consistent application).

It is at this last factor--policy--where things can get complicated.  With the advent of (sorta) new technologies, the definition of "library records" is not just internet searches and checked-out materials.  It could be what a person printed on a 3D printer, or their image on a surveillance camera, or their use of library wi-fi.  None of these things, right now, are listed in CPLR 4509, but many library professionals would consider them to be library records.

The trick is making sure that when a library takes a position about library records (especially with regard to records that, at first glance, are not about library services, but more about security), it is supported by their policy.

Okay, I know I promised a "clear answer".  So let's re-state the question: "if the police were to ask if we saw the teens, are we able to answer or is that considered a violation of patron privacy as it is with patron information and records?"

Based on a fictitious library consulting a fictitious lawyer, here is one possible answer:

To the ABC Library:

You have requested legal advice regarding whether a library may provide a substantive answer in response to law enforcement enquiring about the presence of a patron in the library.

Your concern is that such a disclosure, based on the visual observations of library employees rather than written/recorded records, could still be considered a violation of patron privacy.  You confirmed that at the time of the inquiry, the library had no operational need to release any such information.

I have reviewed the library's policy on patron confidentiality, and based on the below clause, I advise to not release such information unless there is a subpoena or judicial order:

"Consistent with the ALA and NYLA Codes of Ethics, the ABC library considers any record or information that indicates an individual's use of library services and/or facilities to be a library record under CPLR 4509, unless specifically excluded[2] by this policy."

Therefore, I advise not providing such information without a subpoena or judicial order, unless the requestor accurately points out that a specific law requires it.

Thank you for trusting me with this question.

Very truly yours,

A. Hypothetical Lawyer, Esq.

Of course, as the "formula" at the start of this answer points out, the "situation" may vary from time to time.   And CPLR 4509 does leave room for mandatory disclosure "when otherwise required by statute." [3] Those are the times when a library may want to consult a local attorney to obtain quick advice in the moment.

Since this formulaic balancing of facts, ethics, legal obligations, and policy can be difficult to keep in mind,[4] it may be helpful to summarize it to library trustees, employees, and volunteers this way: “A patron's use of the library and our services are confidential.  If anyone asks about a patron using or being at the library, our standard reply is 'Since patron information is confidential, I need to refer you to [the Director].’”[5]

Thanks for a very thought-provoking question.

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[1] As of November 12, 2021, here is the text of CPLR 4509: "Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute."

[2] What are examples of things to exclude?  If a library is in shared space with a shared security surveillance system, that should be excluded (unless the library has confirmed via written contract that the footage of the library will only be reviewed per the policy).  If the library has a snack bar or gift shop and wants to monitor the point of sale for theft, that could be excluded.  Security footage of a community room used by third-party groups (not individuals) under a space rental agreement is another possible example. 

[3] Such as FERPA. For more on this, see the “Ask the Lawyer” posted here: Patron Confidentiality in School Libraries

[4] Even lawyers need to look this stuff up sometimes.  Just like I don't have some of the finer points of the Domestic Relations Law at my fingertips, not all lawyers can recite the requirements of CPLR 4509.

[5] Or designated positions with regular training and/or adequate experience to appreciate the fine points of the library's policy.

At first glance, this question seems simple: what are the possible legal risks to a librarian helping a patron fill out a legal document?

But within this question lies another, slightly more complex issue: when does good customer service become an accommodation for a disability?

This "slightly more complex" consideration is brought up by this part of the member's scenario:  "We had a patron come in this past week who said that he couldn't see well...", potentially meaning: the patron could not access the library services (use of the computer and internet) without assistance, because of a disability.

Of course, not every visual limit is a bona fide disability (I have to take off my glasses to read these days, but that does not entitle me, by law, to an accommodation under the ADA).  However, a patron requesting help to access a library service due to "low vision" (meaning that patron cannot view the screen even with corrective lenses), is potentially requesting an accommodation.

This is because "low vision" can be "a physical or mental impairment that substantially limits one or more major life activities," (which is the ADA's definition of a disability).

For patrons with "low vision," an ADA accommodation can take many forms aside from a human-powered solution, including:

• Ensuring computers have increased operating system font size with large-size computer monitors
• Screen magnification software
• Locator dots and/or large print keyboard labels for keyboard navigation
• External computer screen magnifier[1]

What accommodations a library chooses to offer to someone needing an accommodation to access library services will vary based on that library's size, type, served population, and (of course) budget. [2]  For some libraries, the "human solution" will be the only one available...which creates dilemmas like the one shown in the member's question.

Okay, let's press "pause" on the ADA aspect (we'll come back to it) and return to the original, simple question: what are the possible legal risks of a librarian helping a patron fill out a legal document?

The risks, of course, are that if the patron is accused of fraud, identity theft, or any other illegal activity based on the form's contents, it could lead to complications for the library (and thus, potentially, the employee).

Of course, most types of crimes based on fraud, false personation, and identity theft turn on the awareness and intent of the involved parties. Basically--and this is a big paraphrase--so long as a person can show they had no awareness or intent to help with a crime, they will have a defense against such an accusation...especially if they are performing the action as part of a duty in their job description.

But how can a library avoid such accusations against its employees in the first place?  This is where we take the ADA aspect off "pause," and consider how a library's policies can set firm boundaries for good customer service, while also facilitating accommodations for disability.

How is that done? Many libraries already have a version of this approach, but here's my plain-language version of a policy:

Library employees are here to help patrons use library resources, but librarians and library staff may not interpret, provide guidance, or fill in forms for patrons.

Patrons who need assistance filling in a form or completing a document due to uncertainty about the content are welcome to ask librarians for help locating the instructions or contact information for assistance.

Patrons who need assistance filling in a form or completing a document on the library's computer or other resource as an accommodation for a disability, please alert the Director or [insert alternate, accessible means], so the Library may act on the request per the library's ADA policy.

So, to be clear, my answer to the member's overall question is: to avoid doubt, librarians should never help patrons fill out the answers on legal forms if the help is just part of good customer service.[3]   HOWEVER, librarians absolutely can read the content and type substantive answers on a patron's legal forms if the library decides (and documents) that it is providing the assistance as part of a reasonable accommodation for a disability.

When considering employee-powered assistance as a form of accommodation, part of evaluating the request must be consideration of how it can be fulfilled ethically.  For instance, a person providing an ADA accommodation as an ASL Interpreter must follow the Registry of Interpreters' Code of Ethics[4] (or other professional association).  A person providing an ADA accommodation as a "reader" for a person who is blind or has low vision should not offer guidance or commentary on the content--their role is limited to reading, and perhaps typing, based on verbal prompts from the accommodated party.[5]  A person typing because the library's only keyboard is inaccessible to the patron and the library has no dictation software should similarly only type as an accommodation, and not offer comment or guidance. [6]

Some libraries, looking at the range and requirements for certain types of human-powered accommodations, may decide they do not have the staff capacity to provide such resources.  Others will say (and support by well-developed policy): sure, we can do that, here's how.[7]

The important thing, no matter what the decision is, is to keep a record as to why a library employee (or contractor) would assist a patron with filling out and/or submitting a confidential or legal document.  Since the only reason should be as an accommodation, that reason should be documented in either the policy (for instance, if the library has a standard service) or as an ad hoc request.

Thank you for a very compassionate and thoughtful question.

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[1] Many thanks as always to the "AskJAN.org" web site, which lists common disabilities and their accommodations, including the definition and accommodations for "low vision," found here as of June 28,2021: https://askjan.org/disabilities/Low-Vision.cfm.

[2] "Ask the Lawyer" has addressed the various types of libraries’ obligations under the ADA in other answers, such as ADA Compliance When Screening Movies and Oral history transcriptions and the ADA.

[3] Assistance printing, formatting, duplicating, locating a hyperlink, and in general using library technology in furtherance of completing the form is okay.

[4] Found at https://rid.org/ethics/code-of-professional-conduct/.  Are there any libraries with in-house ASL interpreters?  That would be cool.

[5] The National Foundation for the Blind has a helpful article on this here: https://nfb.org//sites/default/files/images/nfb/publications/fr/fr35/1/fr350105.htm.

[6] This is why consideration of ADA access is so critical in procurement of library resources.   As you will see on most ADA-resource sites (like AskJAN.org), most accommodations these days are powered by technology.  Although some still rely on human action (for instance, reading aloud), most do not.  A library that factors these needs into procurement decisions (buying larger screens, or adaptable keyboards) will not only model a practical commitment to ensuring access, but will reduce the need for employees to be the mode of accommodation--lowering the risk of viewing and contributing to the completion and submission of confidential/legal documents.

[7] An example of the types of accommodations offered on the "larger budget" end of things can be seen at NYPL: https://www.nypl.org/accessibility.

Before I answer, I want to share a story.

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

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

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

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

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

Those legal risks include:

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

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

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

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

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

The law provides:

Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state, including but not limited to records related to the circulation of library materials, computer database searches, interlibrary loan transactions, reference queries, requests for photocopies of library materials, title reserve requests, or the use of audio-visual materials, films or records, shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library and shall be disclosed upon request or consent of the user or pursuant to subpoena, court order or where otherwise required by statute.

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

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

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

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

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

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

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

So, to answer the question:

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

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

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

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[1] For more information on this important civil rights protection, see this guidance from the NYS Division of Human Rights: “Protections Under the Law for People With Arrest and Conviction Records” (https://dhr.ny.gov/system/files/documents/2022/05/arrest_conviction.pdf).

[2] This is important...a System may decide that such entries are not consistent with System operations.  Individual libraries should take care that the upload of any information is consistent with their System's policies and standard operating procedures.

Wow.  There is really just no hum-drum day for librarians, is there?

Okay, let’s take this in stages.

First, the member’s question starts with the premise that the alteration of certain documents is illegal.  That premise is correct.   And although there are any number of crimes such alteration could be (depending on the type of document), here in New York, the catch-all term would be “Forgery.”  

Forgery [1] is a crime that comes in many degrees, but whatever degree, it involves the act of falsely making or altering a document (meaning the forger invented it wholly, or—as in the scenario—somehow manipulates or alters the original).  However, it is important to note that a critical element of Forgery, no matter what degree, is the intent to defraud, deceive, or cause injury.

Second, the member raises the concern that, if library staff assist a patron who turns out to be a forger, they could risk being implicated in the crime—or feel an obligation to report what they have seen.  While I found no case law addressing this precise scenario, these are valid concerns.   

We’ll start with some good news: for staff to be (legally) implicated, they would have to be aware of the forger’s criminal intent.  In other words, the staff would have to know that the person was planning to defraud, deceive, or cause injury; the mere suspicion would not make them part of a crime [2].  

That said, if the content visible on the screen makes it difficult to ignore a crime in progress (for instance, the manipulation of child pornography) or the possibility of imminent harm to another (someone changing the checkboxes on a Power of Attorney, for example), both library operational integrity, and staff well-being, may require removing personal service, removing privileges, and/or alerting law enforcement.

Unfortunately, after looking at case law, guides from the ALA, and numerous policies in the field, I could find no graceful way for staff to simply discontinue service, without telling a patron why.  Since staff assistance is in many ways as much of a right (once it is routinely provided) as access to your collection and technology, withholding it without a clear basis is a due process concern (for public libraries) and a professional ethics [3]/best practices concern (for private libraries).

That said, I can offer the following steps to making sure staff are ready to address this difficult situation: 

First, every employee and volunteer assisting patrons should have the phrase “service to patrons, in accordance with established policies and procedures” in their employee handbook, job description or volunteer letter (the wording doesn’t have to be precisely this, but the requirement of staff to follow library policies should be express).

Second, an institution providing access to “maker equipment” (computers, scanners, 3D printers, recording devices, tools, etc), should have a posted, public policy forbidding use of library equipment for illegal activity.  Something like:

 “Use of library equipment for illegal activity is forbidden. Examples of illegal activity include  but are not limited to: manipulating illegal content, engaging in forgery (falsely altering documents), gaining unauthorized access to other computers or networks, and 3D printing of illegal devices.  Staff assisting you, who suspect illegal activity, are authorized to discontinue assistance, and the library may discontinue your library access and contact law enforcement.  Patrons using technology to alter official or signed documents should be aware that such activity may be perceived as potentially in violation of this policy.”

As with any library policy impacting access and privileges (including staff assistance), such a policy should have an established procedure, and at least one level of appeal. [4]

Third, staff and volunteers should be trained [5] on how to withdraw service while honoring the rights of patrons.  A very simple policy (coordinated with current bylaws and other institutional policies before implementation [6]), such as the generic one below, could assist with balancing staff well-being with patron rights:

POLICY

It is the policy of the library that, to promote the integrity of operations, and the well-being of staff, use of library equipment and staff services in furtherance of illegal activity is forbidden.  

Staff concerned that a patron’s use of library technology may violate the law shall withdraw their services and/or patron access to the technology, per the below procedure.

In making this policy, the library re-affirms that unless authorized by law, patron records, including those generated by the use of technology, are confidential, and that users of the library technology have a right to privacy. 

In making this policy, the library re-affirms that all patrons are entitled to excellent service and access, and that such service and access shall not be removed without due process.

PROCEDURE

A staff member identifies a potential violation, withdraws from the patron, and consults a supervisor to confirm that withdrawing service and/or access is appropriate.

If the supervisor, upon further assessment, agrees that the use violates the policy, and that withdrawing service and/or access is appropriate, the supervisor will initiate the removal, and provide in writing to the patron:

On [DATE], your access to [/SERVICE/TECHNOLOGY] was removed, on the basis that the use was barred under our posted policy (copy enclosed).  This removal may be appealed by sending a letter of appeal to [PERSON], at [ADDRESS] by [DATE].   The library respects your privacy and does not require you to appeal or to provide any further information regarding this matter, unless you choose to do so.

If an appeal is filed, the [PERSON TO WHOM APPEAL IS DIRECTED] shall consult leadership and legal counsel as needed, and shall notify the patron, in writing, as to the result of the appeal within [#] business days.

If there is concern that IMMINENT HARM may be caused by patron use of technology, staff shall immediately alert XXXX, who shall determine if law enforcement must be called, or if there are any additional immediate action take, per governing procedures.

I am sorry to not have a more graceful solution, but I cannot advise that staff simply withdraw services and not return to the patron.  I have designed the above generic policy to provide a “uh-oh” moment for the patron, when they can remove themselves from a situation, and the supervisor can choose to not pursue the matter further.  This is a delicate dance on the tightropes of confidentiality and operational integrity.

Further, I have added the final clause in bold so the person in charge at the time is reminded to use the “buddy system” when it comes to making tough calls about safety, inferring criminal intent, and assessing imminent harm.  These are decisions that, whenever possible, should not be made in isolation. 

This balancing, giving a situation time to breath, and due process, are the best way to shield library staff while honoring library principles.  I hope you don’t have to use it too often!  But with more and more people relying on libraries for service beyond the traditional quest for information, I suspect more institutions will be addressing this issue.

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[1] NY Penal Law 170.00

[2] Of course, a prosecutor can pursue criminal charges if they believe they can prove such awareness…and they can try and prove it by using knowledge of the content.  And for certain documents, merely altering them is a crime.  So erring on the side of caution is wise.

[3] At the heart of this question is staff who don’t want to be implicated in wrongdoing, but honor their professional ethics, including the obligations to:

• Provide the highest level of service to all library users, and accurate, unbiased responses to all requests for assistance;
• Distinguish between personal convictions and professional duties;
• Strive for excellence via use of professional skills;
• Protect each patron’s right to privacy and confidentiality

[4] This is advised by the ALA at http://www.ala.org/advocacy/intfreedom/guidelinesforaccesspolicies, and of course is required for municipal institutions.

[5] As part of this training, staff should be alerted to the library’s policies about any signs of activity posing a risk of imminent harm (which may be a result of illegal activity).

[6] This coordination is critical.  Please don’t use any model language without considering your full suite of bylaws, manuals, policies, and procedures already in place.

Before I wrote this answer, I stopped to ponder the fact that there are over 20 library systems in New York, each with its own policy and approach to managing the information in its "ILS" (integrated library system).

The beauty of library law in New York--and it is beautiful--is that it uses a firm structure of laws and regulation to enable a sturdy but flexible array of unique library institutions.

All of which is to say: there is no single right answer to this question.

Every library system managing an ILS has the responsibility and right to set the terms for participation in that system. Among other things, that means every library system sets the terms for the use of the information access the system provides.

So, with that, can a library use the email addresses of its patrons from an ILS patron database to send a donation request for its annual fundraising drive?

The answer will vary from system to system. However, unless specific provisions have been made otherwise, the answer is most likely "no."

Here is why.

First, as always, we'll start with ethics.

The ALA and NYLA Code of Ethics provides: "We protect each library user's right to privacy and confidentiality with respect to information sought or received and resources consulted, borrowed, acquired or transmitted."

While using the patron information in the ILS to populate a donor solicitation list does not in and of itself reveal "information sought" by the patron, it does raise the issue of how the patron's confidential library records are being used.

Second, we'll look at the law, [1] which requires: "Library records, which contain names or other personally identifying details regarding the users of public, free association, school, college and university libraries and library systems of this state...shall be confidential and shall not be disclosed except that such records may be disclosed to the extent necessary for the proper operation of such library...."

While sending a late notice to a patron via email is certainly necessary for the proper operation of the library, using library records to solicit donations, without further consent by the patron, is again a dubious disclosure of patron information. I am not saying it is outright barred by law...but it gives me an icky feeling.

An "icky feeling," of course, is not admissible in court. So, let's dig a little deeper.

An ILS is a service each library participates in. The laws that govern ILS use are Education Law 255 and 8 NYCRR 90.3, and the bylaws of the particular system that library is a member of. Although a member library contributes information to an ILS, unless system bylaws or policies say otherwise, that information belongs to the system, who is just as ethically and legally bound to protect the information as a member library.

The default position for a library system to adopt is that patron information should only be used in furtherance of a patron's use of services from the system. This is the best way to stay on the right side of the law.

The "special position" a library system could adopt, if it wanted to facilitate special mailings based on library membership and use (not just for fundraising, but perhaps based on demographics or interest) could be to enable patron consent to such information use, perhaps by using an opt-in or express waiver. This too would ensure adherence to the law regarding confidentiality.

For a library whose system takes the "default" position of not allowing ILS information to be exported for fundraising purposes, the library also has a few options, including:

1. Creating a passive sign-up sheet for library news and fundraising efforts and maintain a spreadsheet outside of the ILS with personal information. Here is some sample language:

Do you want to sign up for newsletter information, event notifications, and fund-raising? We won't supply your information to any third party, and our mailings will come straight from the library! Please enter your name and contact information below.

2. Proactively asking patrons to voluntarily consent to the disclosure of their information for fundraising purposes during sign up and create your own list outside of the ILS.  Here is some sample language:

Per our patron confidentiality policy, the library considers records of your patronage confidential. Do you consent to the library using your name and address for newsletter information, event notification, and fund-raising? If so, please sign the agreement below. We won't supply your information to any third party, and our mailings will come straight from the library!

NOTE: This permission can be revoked upon request.

I agree for my information to be added to the library's newsletter, event, and donation solicitation list.

 

NAME:______________________________________

 

Signature:_____________________ DATE:_______________

 

3. Asking the cooperative library system to add a "library event notice and fundraising information disclosure checkbox" so the information can be exported from the ILS. Of course, such "checkbox" would depend on the ILS technology (and might be impossible to add). But it would be work exploring.

Thank you for a thought-provoking question.

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[1] New York State Civil Practice Law and Rules Section 4509.