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June 22, 1999

 

E-Mail

TO: Susan L. Keitel, Executive Director, New York Library Association

FROM: Robert J. Freeman, Executive Director

The staff of the Committee on Open Government is authorized to issue advisory opinions. The
ensuing staff advisory opinion is based solely upon the information presented in your
correspondence.

Dear Ms. Keitel:

I have received your e-mail concerning a request that appears to have been sent to
numerous libraries in New York and elsewhere. In brief, the request involves complaints about
"patrons accessing pornographic or sexually explicit material" on the Internet.

In this regard, while many "public libraries" are subject to the Freedom of Information
Law, others so characterized may fall beyond the coverage of that statute.

The Freedom of Information Law is applicable to agency records, and §86(3) of that
statute defines the term "agency" to mean:

"any state or municipal department, board, bureau, division, commission,
committee, public authority, public corporation, council, office of other governmental entity
performing a governmental or proprietary function for the state or any one or more municipalities
thereof, except the judiciary or the state legislature."

Based on the foregoing, the Freedom of Information Law generally applies to records maintained
by governmental entities.

Based on §253 of the Education Law and the judicial interpretation concerning that and
related provisions, I believe that a distinction may be made between a public library and an
association or free association library. The former would in my view be subject to the Freedom
of Information Law, while the latter would not. Subdivision (2) of §253 states that:

"The term 'public' library as used in this chapter shall be construed to mean a
library, other than professional, technical or public school library, established for free purposes
by official action of a municipality or district or the legislature, where the whole interests belong
to the public; the term 'association' library shall be construed to mean a library established and
controlled, in whole or in part, by a group of private individuals operating as an association,
close corporation or as trustees under the provisions of a will or deed of trust; and the term 'free'
as applied to a library shall be construed to mean a library maintained for the benefit and free use
on equal terms of all the people of the community in which the library is located."

The leading decision concerning the issue was rendered by the Appellate Division, Second
Department, in French v. Board of Education, in which the Court stated that:

"In view of the definition of a free association library contained in section 253 of
the Education Law, it is clear that although such a library performs a valuable public service, it is
nevertheless a private organization, and not a public corporation. (See 6 Opns St Comp, 1950, p
253.) Nor can it be described as a 'subordinate governmental agency' or a 'political subdivision'.
(see 1 Opns St Comp, 1945, p 487.) It is a private corporation, chartered by the Board of
Regents. (See 1961 Opns Atty Gen 105.) As such, it is not within the purview of section 101 of
the General Municipal Law and we hold that under the circumstances it was proper to seek
unitary bids for construction of the project as a whole. Cases and authorities cited by petitioner
are inapposite, as they plainly refer to public, rather than free association libraries, and hence, in
actuality, amplify the clear distinction between the two types of library organizations" [see
attached, 72 AD 2d 196, 198-199 (1980); emphasis added by the court].

In my opinion, the language offered by the court clearly provides a basis for distinguishing
between an association or free association library as opposed to a public library. For purposes of
applying the Freedom of Information Law, I do not believe that an association library, a private
non-governmental entity, would be subject to that statute; contrarily, a public library, which is
established by government and "belong[s] to the public" [Education Law, §253(2)] would be
subject to the Freedom of Information Law.

It is noted that confusion concerning the application of the Freedom of Information Law
to association libraries has arisen in several instances, perhaps because its companion statute, the
Open Meetings Law, is applicable to meetings of their boards of trustees. The Open Meetings
Law, which is codified as Article 7 of the Public Officers Law, is applicable to public and
association libraries due to direction provided in the Education Law. Specifically, §260-a of the
Education Law states in relevant part that:

"Every meeting, including a special district meeting, of a board of trustees of a
public library system, cooperative library system, public library or free association library,
including every committee meeting and subcommittee meeting of any such board of trustees in
cities having a population of one million or more, shall be open to the general public. Such
meetings shall be held in conformity with and in pursuance to the provisions of article seven of
the public officers law."

Again, since Article 7 of the Public Officers Law is the Open Meetings Law, meetings of boards
of trustees of various libraries, including association libraries, must be conducted in accordance
with that statute.

If a library is not subject to the Freedom of Information Law, there would be no
obligation to disclose. On the other hand, if a library is "public" and a governmental entity, it
would be obligated to respond to a request for records.

As a general matter, the Freedom of Information Law is based upon a presumption of
access. Stated differently, all records of an agency are available, except to the extent that records
or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (i)
of the Law.

Pertinent with respect to materials identifying patrons is §87(2)(a), which relates to
records that "are specifically exempted from disclosure by state or federal statute." One such
statute is §4509 of the Civil Practice Law and Rules, which states that:

"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 transaction, 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."

Based on the foregoing, insofar as library records identifying a user of a library's services, I
believe that the record must be withheld.

Similarly, in a variety of contexts it has been held that identifying details pertaining to
those who transmit complaints to government agencies may be withheld or deleted on the ground
that disclosure would constitute "an unwarranted invasion of personal privacy" [see Freedom of
Information Law, §87(2)(b)]. When an agency receives a complaint, the identity of the
complainant is largely irrelevant to the agency; what is relevant is whether or the extent to which
the complaint has merit. Consequently, in most situations, identifying details pertaining to
patrons or complainants, for example, would be deleted to protect those persons' privacy, while
the substance of the complaints would be available.

Lastly, I point out that the Freedom of Information Law does not distinguish among
applicants for records. Whether a person seeking records is a resident of New York or elsewhere
is irrelevant to rights of access.

If you would like to discuss the matter, please feel free to contact me.

I hope that I have been of assistance.

RJF:jm