Issues concerning libraries and the law - with latitude to discuss any other interesting issues Note: Not legal advice - just a dangerous mix of thoughts and information. Brought to you by Mary Minow, J.D., A.M.L.S. [California, U.S.] and Peter Hirtle, M.A., M.L.S. Follow us on twitter @librarylaw
I was catching up on some blog readings this morning, and was pleasantly surprised to find that Jill Hurst-Wahl in a post on copyright had a link to what she called Mary Minow's "good news" from 3 weeks ago.
It turns out that President Obama has nominated Mary to serve on the National Museum Library Services Board, an advisory board to the Director of the Institute of Museum and Library Services.
Mary is too modest to mention this to me or on the blog, but I am happy to let everyone know and join in the chorus of "Congratulations!" I can't think of a better advocate for libraries.
The New York State Board of Regents met this week to discuss making permanent its proposed regulations on deaccessioning from museums and historical societies, and it punted.
As I wrote earlier, the Board had issued draft permanent regulations for public comment. The permanent regulations were to replace a series of emergency regulations that it has issued since December, 2008. After the required 30 day comment period, the Board was to vote at its 19 October meeting on making the amendment to existing regulations permanent.
Instead the Board of Regents voted another temporary emergency regulation and directed the Education Department to start another 30 day comment period on the proposed permanent amendment. No timetable for future action is provided, but the new emergency regulations, which go into effect on 14 November, only last for 60 days. That means that the Board will have to act at its 11-12 January meeting, so we can expect a new proposal by the beginning of December at the latest.
Why the delay in adopting permanent regulations? There is no explanation in the new emergency regulations that were passed, but hints. There may have been some confusion over dates. The regulations were published in the NY State Register on 26 August, but the memo to the Board states that they were published on the 29th. If this were true (which it is not), then the required 30 day public comment period would not have been met.
I suspect, however, that it is more likely that the Department of Education just didn’t have the time to assess the public comments received on the proposed regulations. The “Statement of Facts and Circumstances which Necessitate Emergency Action” indicates that about 30 public comments were received on the December 2008 emergency regulation, but it does not report how many comments were received this time. Nor are the public comments posted on the Department’s web site. The statement does report, however, that “Further revisions to the proposed rule are anticipated in response to review and recommendation by Department staff,” which suggests that they may have received some comments that may modify their thinking.
In the interim, as “Culture Grrl” Lee Rosenbaum noted, the emergency regulation differs from the proposed permanent regulation. It appears that the Board simply passed the same emergency regulation it adopted in July, 2009. Rosenbaum finds this problematic since the emergency regulations give four reasons when a historical society or museum can deaccession an item, whereas the proposed permanent regulations provided ten. In my comments to the Board, I noted two other justifications for deaccessioning – one from the University of Wyoming, and one passed on an experience at Cornell University - and that was without really thinking that hard about it.
The issue highlights for me the futility of the entire regulatory process. As soon as you try to limit what can be done, a new, justifiable option will occur. No regulations can have the flexibility of best professional practices. Even the current strictures that govern the use of the proceeds from a deaccessioning sale are under legal and ethical scrutiny. The Board of Regents and Education Department should stop trying to micromanage cultural institutions in the state and instead simply require that the governing boards of those institutions operate according to best professional practice and with the mission of the institution in mind.
(h/t to Donn Zaretsky for directing me to Lee Rosenbaum’s posting)
It's been a while since I posted on the proposed legislation to regulate deaccessioning from cultural institutions in New York. The complete meltdown of the State Senate has put that matter on hold, but in the meantime, my attention shifted to the Board of Regents. They had issued emergency regulations last December governing deaccessioning from state-chartered museums and historical societies. The goal was to issue permanent regulations in October, and the big question was whether those regulations would mirror some of the problematic features of the proposed legislation.
The final proposed regulations have been distributed by the Dept. of Education. Since they are not readily available online yet, I will post the full text after the break.
There is some good news in the regulations. First, they apply only to museums and historical societies, not libraries and archives. Second, they omit much of the procedural detail that would have made the proposed legislation onerous. The list of reasons why one might want to deaccession an item from a collection seems at first glance reasonable, though I have to admit that I am not conversant with current professional best practices in this area. I wonder, too, if this isn't an area where professional practice and the seasoned judgment of a Board of Trustees might not be better than explicit regulation. SAA's Acquisition and Appraisal Section has proposed a Working Group to investigate issues in reappraisal and deaccessioning, which suggests to me that standards in this area may be in flux and that regulations are premature.
There are two problematic issues that I see in the proposed regulations. The first concerns how institutions can use the proceeds from the sale of deaccessioned items. The regulations stipulate that monies received can only be used for new acquisitions or preservation, but not for operational or capital expenses. This approach mirrors the standards of the Association of Art Museum Directors, but it has also been heavily criticized (see, for example, this essay in Art in America and the Deaccessioning Blog). I might simply note that if the Southworth Library in Dryden, NY had been an historical society, then it would not be able to use the $3.5 million it received from the auction of a Lincoln document this spring to construct a new wing.
The second issue could be a real source of pain for small historical societies. The regulations require that historical societies must have a written collections management policy to guide institutional decisions regarding the collection. The policy must be filed with the state. At a minimum, the policy must "satisfactorily" address the following subject areas:
(a) acquisition. The criteria and processes used for determining what items are added to the collections; (b) loans. The criteria and processes used for borrowing items owned by other institutions and individuals, and for lending items from the collections; (c) preservation. A statement of intent to ensure the adequate care and preservation of collections; (d) access. A statement indicating intent to allow reasonable access to the collections by persons with legitimate reasons to access them; and (e) deaccession. The criteria and process (including levels of permission) used for determining what items are to be removed from the collections, which shall be consistent with paragraph (7) of this subdivision, and a statement limiting the use of any funds derived therefrom in accordance with subparagraph (vii) of this paragraph.
How many institutions have written policies in all five areas?
The text of the proposed regulation follows. Note that the full text of the regulation being amended is found here. Public comments are due by 25 September.
The good news: I assume in reaction to the concern expressed by museums, zoos, and libraries, the bill governing deaccessioning from museums was pulled from the Ways and Means committee's calendar on Tuesday. I gather that staff from Assemblyman Brodsky's and Senator Serrano's offices have begun discussions with some concerned community representatives.
The bad news: An amended version of the bill is circulating in Albany. This bill makes it crystal-clear that it does not just cover museum deaccessioning, but would cover deaccessioning from "collecting institutions" - meaning libraries, archives, historical societies, zoos, and private foundations.
In spirit, the revised bill is acceptable. It recognizes that there are times when a collecting institution may wish to remove an item from its collections. Those reasons include:
The item is inconsistent with the mission of the collecting institution as set forth in its mission statement;
The item has failed to retain its identity;
The item is redundant;
The item's preservation and conservation needs are beyond the capacity of the collecting institution to provide;
The item is deaccessioned to accomplish refinement of collections as required by and/or stated in its collection management policy;
It has been established that the item is inauthentic;
The collecting institution is repatriating the item or returning the item to its rightful owner;
The collecting institution is returning the item to the donor, or the donor's heirs or assigns, to fulfill donor restrictions relating to the item which the collecting institution is no longer able to meet;
The item presents a hazard to people or other collection items.
(I might think of a few more, such as the item is missing or lost from the collection, but this is not a bad list.)
The law then says that if the collecting institution wants to deaccession or dispose of the item, it must first offer it for transfer or sale to another institution in New York state. If no one wants it, it would then be offered to another collecting institution outside of New York. If they don't want it, then it can be sold on the open market.
The bill's proposed methods of implementing its goals are highly problematic. Here are some issues:
It applies to all accessioned materials, and it governs material that you may want to discard. Good professional practice requires that archives and manuscript repositories accession material upon receipt. The material is then processed and unwanted material (including trash) is discarded. This bill would require us to offer our trash to other institutions before we could get rid of it.
It may also not allow us to return unwanted material to the donor, even if the deed of gift stipulates this.
Proceeds from any sale of the item can only be used to acquire more material and/or for the preservation, protection or care of items in the collection. The money cannot be used for "traditional and customary operating expenses." But what about customary operating expenses that also serve to preserve and protect items in the collection?
Most troubling for small institutions is that they would have three years to publish a register of all accessioned items in the collection. They would also have to publish a register of deaccessioned items. This is a burdensome unfunded mandate.
Furthermore, the Board of Regents is required to construct a database that includes all items that a collecting institution wishes to deaccession. Again, a huge procedural headache.
Institutions would also be required to write and publish a broad set of procedures and practices under the rubric of a "collection management policy." I doubt if even the largest institutions have written procedures for all of the things specified in the bill.
Some will even argue about whether it is ever ok to deaccession material. (You can follow some of the debates at the Deaccessioning Blog.) If deaccessioning does occur, let's hope that we do not have to follow the well-meaning but problematic practices of A6959.
There is a proposed new law making its way through the New York State legislature that would regulate how museums deaccession items in their collections. While ostensibly about museums, the law could have a major impact on how libraries function. All libraries and historical societies in NY should write to the legislation's sponsors and ask that passage be delayed until definitions are clarified.
The bills are A06959 (introduced by Richard L. Brodsky) and its identical counterpart S04584 (introduced by José M. Serrano). They would govern how museums acquire and dispose of objects. You can learn more from a hearing on the topic found here.
The proposal has generated some discussion and concern within the museum community (see, for example, the letter from the Art Law Committee of the New York City Bar or the posts on the bill in the Art Law blog). My concern is with its potential impact on libraries and archives. The problem is that while the bill discusses the issue surrounding collecting in museums, it defines museums so broadly that most libraries and archives would fall under its sway. Here is the definition:
means any institution having collecting as a stated purpose in its charter,
certificate of incorporation, or other organizing documents, or owning or
holding collections, or intending to own or hold collections that is a
governmental entity, education corporation, not-for-profit corporation, or
Since almost every library in the state owns or holds collections, for the purposes of the law they would be museums. The law would sharply limit their ability to dispose of any material (other than returning it to the donor). Everything the library or archives gets would have to be accessioned before it could be discarded. And instead of throwing unwanted items into the trash or putting them in the local library book sale, a library would first have to offer the material to other "museums" in New York state and then the rest of the country. Proceeds from any sale could only be used to support further acquisitions.
Please write to Assemblyman Brodsky and Senator Serrano and ask them delay any further action on this legislation until the definitions are modified to make it clear that libraries, archives, historical societies, and other groups in the state that collect are not subject to these onerous new terms.
Here are the addresses:
Assemblyman Richard L. Brodsky LOB 422
Albany, NY 12248
Sen. José M. Serrano
848 Legislative Office Building
Albany, New York 12247
As I suspected, it's much easier and more flexible. So if any of you are looking for new posts based on categories, you may not find them. Use the technorati tags at the bottom of a post instead. If it works like I think it will, I'll probably stop using categories altogether.
Update: It looks as if users who click on a technorati tag below will get everyone in the world's posts with those tags. That's useful, but it would be nice to have an option to limit it to this blog, the way flickr does. Well, there's always the search button in the blog...
We're taking sign-ups right now for an Infopeople online course on basic library structure and principles such as intellectual freedom, privacy... For better or worse, you'll have lots of opportunity to interact with me if you sign up - via online discussions, "office hours" etc. It's aimed at new library staff and paraprofessionals without formal library training.
Library 101: What You Need to Know to Provide Good Library Service in the 21st Century (An Infopeople Online Learning Course) Details here.
January 17, 2006 - Februray 13, 2006
This course is aimed at new library staff and paraprofessionals without formal training in library science. It will answer basic questions about the kinds of fundamental library issues that can quickly turn into hot topics: staff rights and responsibilities, user access and fees for service, book selection and censorship, library funding and outsourcing, and reader privacy.
You will receive a basic exposure to library concepts, ethics and principles, with an emphasis on their practical application in real-life situations. For example, how would you respond to parents who ask to see what titles their children have checked out? You'll learn what to do and what not to do and why. Understanding the thinking behind library procedures will help you provide better service and enjoy your work more fully.
p.s. Alice Hoffman read her grandmother's advice which was wonderful - she later said it was in a published anthology. I thought she said the anthology title was FAMILY. Could someone give me the citation? THANKS.
A New York library patron lost her library card and didn't realize it until three weeks later. She reported it lost as soon as she realized it. Meanwhile, someone else had checked out the maximum number of DVDs using her card and didn’t return them.She estimates that she could be charged upwards of $1000.
Does anyone know of any legal limitations on a library’s ability to charge a cardholder for items someone else checked out on a lost card in NY (or elsewhere)? What's your library's policy on patron liability? Do you include it as part of the library application that the user signs?
Apparently not. An Illinois Appellate Court ruled in favor of ex-library employee Edwardo Muniz who had previously been found guilty by the trial court of "threatening a public official." He had been sentenced to 6 months in the Cook County Jail (time actually served) and 30 months of probation. The conviction was overturned since the state law against threatening a public official was not written broadly enough to include a deputy library commissioner.