Our online column Letters of the Law explores a wide range of legal issues that arise in libraries, with the help of a pair of leading authorities: Mary Minow, a librarian who became a lawyer; and Tomas A. Lipinski, a lawyer who became a librarian. Together they have authored four books on the subject, including The Library’s Legal Answer Book (ALA Editions, 2003, with a new edition forthcoming in 2021), and led forums at American Library Association (ALA) conferences in collaboration with the Public Library Association (PLA).
In this edition, Minow explores nuances of meeting room policy affected by pandemic conditions, as well as privacy considerations and liability around tax season.
When our library reopens, we plan to change the use of many of our spaces. For example, we plan to allow another city department to use our community room to spread out its staff and visitors. Is that okay?
The key guiding principle in a publicly funded library is that everyone must be offered the same treatment. Your policy warrants a closer look if it’s currently first-come, first-served and one reservation per week, and now you’ll be allowing one user exclusivity in either guaranteed reservations or in longer or more slots per month than others are allowed. Certainly, the library itself may reserve the space, as can allies of the library, such as the Friends group and your library foundation.
If you are a city department and another city department needs the space, you can make a similar case that there is a special relationship that warrants their use of the space. However, once that is permitted, another city department may wish for the same access, and the library will need to come up with a plan that treats them all equally. If the group or organization that wishes special treatment does not already have a special relationship with the library, its sympathetic cause is not a strong enough reason to offer special treatment. During these times, many organizations have sympathetic causes, and the library can best help by offering space on the same terms to all.
I’d advise the library to revisit and amend the meeting room policy to ensure that the space is returned to library-only use, then the library can make the space available to the city department without fear of liability or obligation to other organizations. Once the city department no longer needs the space, the library can once again revise its meeting room policy to re-designate the room as a publicly available space.
See The Library’s Legal Answers for Meeting Rooms and Displays ebook (ALA Editions, 2016) for more.
To create a staging area for book pickups, we plan to set aside a small meeting room that has an outside entrance. That is, we will no longer take reservations for that space. Is that okay?
It is permissible for a library to close off a meeting room to use however the library needs.
A relevant case: A Georgia library was sued in 2002 by the publisher of The Gay Guardian when it removed copies of the community newspaper from a display table in the front lobby after receiving patron complaints (Gay Guardian Newspaper v. Ohoopee Regional Library, 2002). The library then excluded all community publications, restricting the area to government and library-generated materials only. While the publisher argued the library had censored unwanted speech, the library maintained it had the right to close any forum it created. The parties agreed that the public library, and by extension the literature table in its front lobby, was a limited public forum wherein the library could decide to facilitate free expression. The meeting room is similarly a limited public forum.
The library did not argue that if it had kept its lobby table open and excluded only that paper, it would be violating the First Amendment. The decision also cites nonlibrary decisions that found that First Amendment principles did not prevent a city from closing a public forum.
Note that the library already permitted access to The Gay Guardian and “by definition, all other speech ugly and beautiful elsewhere in the Library.” (Gay Guardian Newspaper v. Ohoopee Regional Library, 2002.)
Finally, the opinion states: “Because the library’s forum closing equally affects both gay and non-gay interests―including Sons of Confederate Veterans, who might also wish to distribute their own free literature―the court concludes that plaintiffs likely will not prevail on the merits of their First Amendment claim.”
It will likely be a while before librarians will stand over users’ shoulders to help with computer searches. What are the legal issues around software that lets us see their screen remotely, or assisting patrons via cell phone or chat?
Does the screen-viewing software request the user’s permission before sharing? Is it informed consent—meaning the request is written clearly and gives the user a viable option to say no? If those conditions are met, and the user has given clear permission, the library staff should be able to help. It is important to clarify in the textual permission what screen-viewing permission is being granted to whom and for how long.
Although minors are not legally bound to click-through agreements, such an agreement makes sure everyone has notice of what is taking place. State library privacy laws vary, and those that protect broadly defined user records will protect any screen captures or other materials that are not deleted. (Read more about state library privacy laws.)
Our tax volunteers this year do not plan to sit at a table with patrons. Instead, they will accept the patron’s documents while the patron leaves the premises and will return them soon thereafter. Is the library liable for personal information—names, addresses, Social Security numbers—that has been scanned at the library?
That depends on whether the tax volunteers are acting as the library’s agents or if the library is merely providing space to an outside group, such as AARP. I highly recommend that the volunteer group take full charge of the operation, using its own equipment and taking every possible precaution to secure sensitive data. It could be problematic if copies are left on hard drives connected to library scanning equipment, and there’s no need to entangle the library in this. It would be wise to ensure that the volunteer keeps full custody of this data. The library would do well to make it clear to patrons that the personal information gathered by tax preparers is not covered by library privacy laws.
The information in this column does not constitute legal advice, nor does it necessarily reflect the views of ALA or PLA. It is meant to serve as a starting point for librarians and library lawyers who wish to research the law and consider its applications. Different jurisdictions will have different laws and may even apply the same laws differently. If you require legal advice or expert assistance, we urge you to seek the services of a competent legal professional.
Look for a new column by Lipinski in the spring. Send questions or ideas to Associate Editor Sallyann Price at firstname.lastname@example.org.