For a complete list of trustee FAQ topics and questions, visit the Wisconsin Library Trustee Frequently Asked Questions page.
For many, many more resources for the Wisconsin public library community, visit the DLT Public Library Development Team Home Page.
Please let me know if you have any suggestions for additional questions.
Public Library Administration Consultant
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Can we give a list of names and addresses of our library's patrons to our Friends of the Library organization so they can use the list for fund-raising purposes?
No. Wisconsin Statutes section 43.30 prohibits release of records that identify an individual who uses a publicly funded library. This information can only be released with the consent of the patron, by court order, or (under certain circumstances) to other libraries for interlibrary loan purposes.
In addition, the Wisconsin Personal Information Practices Act (Wisconsin Statutes sections 19.62-19.80) requires state and local government organizations (including libraries) to develop procedures to protect the privacy of personal information kept by the organization. Libraries (and all other government organizations) are required to develop rules of conduct for employees involved in collecting, maintaining, using, and providing access to personally identifiable information. You also are required to ensure that employees handling such records "know their duties and responsibilities relating to protecting personal privacy, including applicable state and federal laws."
It may be legal for your library to use its list of patron names and address for your direct library fund-raising efforts. However, this should only be done if explicitly approved by your library board. Your library board should carefully consider the privacy implications of such use and the possibility of negative public reaction.
Adapted from Trustee Corner. Channel 37, no. 1 (2001).
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The Chain of Command
The relationship of the library board to the director and staff can pose problems if the chain of command is not maintained. The questions in this issue revolve around maintaining an effective balance of administrative relationships in the library.
As part of our efforts to keep costs down, we told the director to try to use more volunteers. Two board members have offered to help in the library, but is it a conflict for trustees to volunteer in the library?
Because volunteers are not compensated for their work, there may not be a conflict of interest or a compatibility of office issue for them to volunteer in the library, as long as no compensation is received for the job (note that trustees may not work in paid positions at the library, since the compatibility of office doctrine prevents the same person from holding an office and a position where one post is superior to the other). Despite the fact that it may not be illegal or unethical for library trustees to volunteer in the library, the situation may lead to problems.
Having board members interact with staff and patrons in day-to-day library operations can disrupt the traditional hierarchy for library supervision where the board supervises library administration and employs a director to supervise day-to-day operations. On the one hand, the director directly or indirectly supervises both volunteers and paid employees. The trustee, on the other hand, supervises and evaluates the library director. So having trustees work under the director as a volunteer when they also supervise the director creates a conflicting relationship in the administration of the library.
However, there may be libraries in small communities where the "people pool" for volunteers in the community is so small that it is difficult to find enough volunteers for the library in addition to those who already serve on the library board. In such circumstances, the director may be able to identify work situations or tasks that are fairly autonomous or independent, with little or no interaction with library staff and public operations. Examples might include such back room tasks as sorting, collating, mending damaged materials, or preparing new materials for the shelves (e.g., applying protective covers, routing stamping and labeling).
Library trustees may find it tempting to chip in to help operate the library when money is tight. However, their time may be better spent focusing their efforts on generating the support and funding necessary for stable library operations.
I have been appointed to the library board, but I'm also good friends with the library director's spouse. In addition, the board president is a good friend of mine and our social circles intersect with the director's. Is it inappropriate for me to discuss library business with the director when I see him socially, or does it violate open meetings law?
Such a situation is not unusual in many communities. Not only might the director be on social terms with board members, but those trustees may themselves meet socially. But there need not be a conflict or problem so long as both the trustee and director clearly acknowledge the relationship and make an effort to keep casual conversation about the library from becoming deliberate planning or complicity. The goal is to neither allow work to spoil a friendship nor friendship to affect the work of the director or the director's relationship with the rest of the board. Be especially careful to limit the discussion of specific work issues, particularly personnel, so as not to affect that balance. If you feel like the conversation is getting into questionable areas, suggest that the discussion be referred to the board president to be placed on the next agenda and brought before the full board. It may not be inappropriate for library trustees to ask questions or discuss library business in private settings with the director, but it may be quite another when the discussion is between library trustees.
I suggested that the library board all attend a workshop for trustees conducted by our library system, but one of the other trustees said it would violate open meetings law for us all to attend, since library administration will be discussed. Is she right?
No. Wisconsin Statutes § 19.82(2) defines a meeting as:
…the convening of members of a governmental body for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. If one-half or more of the members of a governmental body are present, the meeting is rebuttably presumed to be for the purpose of exercising the responsibilities, authority, power or duties delegated to or vested in the body. The term does not include any social or chance gathering or conference which is not intended to avoid this subchapter…
Consequently, as long as the board members attending do not use the workshop as an opportunity to have a discussion among themselves about business specific to your library, the full board may attend the workshop without risk of violating the open meetings law.
The board for our Friends of the Library group has vacancies that no one seems willing to fill, and our director is tempted to serve as an officer on their board. Is that a problem?
Since the Friends group is typically an autonomous group, there probably is not a legal problem with the director serving on the board. But since the Friends group is established to support the library and provide additional financial support, it may not be appropriate for the library director to be in a position on the board making decisions to provide funding for requests she herself or her staff would submit. Therefore, to preserve the separation between the agency submitting requests (the library) and the group granting the support or funding (the Friends board), it is probably best for the library director not to serve on the Friends board. Similarly, the president of the library board should not serve as president of the Friends of the Library or, whenever possible, as an officer on the Friends board.
Is the library board allowed to view personnel evaluations of library aides and assistants?
While the library board is not forbidden from viewing performance evaluations for library employees, the practice is best avoided to maintain the separation between the director's role in the management of library and its staff from the board's duty to supervise overall library operations. Wisconsin Statutes 43.58(4) states: "the library board shall supervise the administration of the public library and shall appoint a librarian, who shall appoint such other assistants and employees as the library board deems necessary, and prescribe their duties and compensation." This chain of command has the library board supervising the library director and the administration of the library, and the library director hiring and supervising the rest of the staff. That relationship is recommended in Trustee Essential 7 (pld.dpi.wi.gov/pld_te7), which states that "the library will operate most effectively if the two parties cooperate and communicate on important personnel matters, while avoiding intrusion into each other's area of responsibility." TE-7 also emphasizes that "the library board delegates to the director the responsibility for the day-to- day assignment of staff duties and supports the recommendations of the director for changes in staff compensation (within the policies established by the board)."
But since the library board has the ultimate responsibility to supervise the administration of the public library, they may be justified in reviewing performance evaluations if they insist. They should keep in mind that the evaluations were conducted with some assumed confidentiality between the employee and the director.
Additional information on the relationship of the library board, the director, and the staff can be found in Administrative Essentials, "AE-11, The Library as Employer," dpi.wi.gov/pld/boards-directors/administrative-essentials/library-employer, and "Trustee Essential 2: Who Runs the Library?" pld.dpi.wi.gov/pld_te2.
Adapted from "Best Practices for Public Libraries: The Chain of Command." Channel 44, no. 1 (2008).
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A clear understanding of staff, director, and board relationship is essential for effective public library operation.
Wisconsin is fortunate to have library law that establishes the duties and authority of the library board and the library director. But library directors and their boards should be careful not to let a string of uneventful board meetings lead to a sense of complacency. Smooth sailing can sometimes lead to assumptions about the library's direction. The library can too easily run aground on the shoals of misunderstanding if constant communication is not maintained to keep the library on its course.
Guidelines for the Library Board
The library board must balance its duty to oversee ongoing library operations with its long-term responsibility of charting the library's future course. Within that context, library policies must be developed and reviewed to maintain relevance and currency. To carry out this leadership role effectively, the board should be concerned with the library's administration, but must not become mired in the minutia of day-to-day operations.
The trustees should recognize that the library director is responsible to direct the activities of the staff and carry out the library program. The trustees should avoid the temptation to assign or direct the duties of individual staff, or to interfere in the staff hiring process except to approve job descriptions and establish personnel policies. If trustees hear complaints about the performance of library staff, they should take those concerns to the library director. Staff complaints should be directed to the library director; however, the board should have a grievance procedure in place for staff concerns that have exhausted the internal appeals process. The board should expect regular reports of human resource problems and concerns from the library director.
Library Director Awareness
Library directors should be sensitive to the fact that the library operates in the social and political context of the community and that the library board may have social or work relationships with library staff members. Since the trustees are often active library users, the board will have regular interaction with the library staff. The director should keep the board apprised of the library staff and the relationship of those positions to the library program. The director should make opportunities for the library board to become acquainted with the staff and aware of their strengths and ongoing professional development. While directors should be sensitive to the relationship the trustees have in the community and the political climate, they must insist upon established channels for communication, with the director as the conduit for communications about library operations between the library board and the staff.
Library Staff Expectations
Clear job descriptions, regular staff meetings with employee participation, and ongoing supervision and direction keep library staff members actively involved and aware of their roles and responsibilities. A staff manual that is regularly reviewed and updated by the library board and consistently implemented by the director provides a framework to effectively address problems as they arise. The library's personnel policies should also allow for a grievance process that goes beyond the library director and should include provisions to obtain staff input on hours, work provisions, and duties. The library board may wish to explore means to obtain input from the staff for the director's performance evaluation, but only as a part of a comprehensive review process. Finally, library staff members should have opportunity for ongoing training, education, and, whenever possible, options for career advancement.
Through effective communication and considerate understanding of the individual roles, the library board, the director, and the staff can all operate effectively to develop and provide quality service to the community. Maintaining the communication can sustain an atmosphere that fosters continued development to meet future needs and permits all to share in the accomplishments.
Adapted from "Best Practices for Public Libraries — Communication is Key." Channel 41, no. 4 (2006).
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Copyright law that affects libraries
The Digital Millennium Copyright Act (DMCA) was a major revision of copyright law developed in response to concerns that the prior copyright law did not adequately address new digital technologies and the explosion in Internet use.
Copyright law has always involved a balance between the private interest of copyright holders and the public interest in wide distribution of information and knowledge. The digital revolution has created fear on all sides that the traditional copyright balance could be destroyed.
Those who own copyright fear widespread pirating of digital content using Napster-like technologies. On the other hand, librarians, educators, and researchers fear the use of technological controls that could severely limit fair use rights and other rights essential to the operation of libraries, and essential to the advancement of education and research. Public access to digital works could be severely limited if publishers adopt "pay-per-use" technologies and other technological controls that limit browsing, copying, and/or lending of digital works.
The DMCA made many changes in copyright law covering everything from online service provider (OSP) liability to the protection of boat hull designs. The purpose of this article is not to cover all aspects of the law, but to provide some basic information that might help librarians stay on the right side of copyright law. A copyright lawyer should be consulted to handle specific copyright issues.
Probably the most significant new provisions of the DMCA deal with bans on the circumvention of technological protection measures; e.g., passwords, IP authorization, or encryption methods that control access to works. Under the DMCA, anyone accessing a copyrighted work protected by a technological protection measure without the consent of the copyright owner could be found civilly and criminally liable.
The anti-circumvention provisions could create significant problems for libraries and library users. The DMCA includes a limited exception for libraries: allowing libraries to circumvent technological protection measures for "browsing" to decide whether to purchase a work. But, the DMCA also makes it illegal to manufacture or distribute anti-circumvention devices or services. So, how do libraries circumvent technological protection measures when anti-circumvention devices and services are illegal? And, while the DMCA also mandated a rule-making process that may result in waiver of the anti-circumvention ban for particular classes of works, it remains a mystery how libraries will manage to circumvent technological protection measures when anti-circumvention devices and services are illegal.
The results of the Copyright Office's rule-making process may provide greater clarity concerning library rights under the anti-circumvention provisions. Currently, it is very unclear how library users are guaranteed their traditional fair use rights under the provisions of the DMCA. Regardless of the results of the rule-making process, libraries need to vigilantly protect user rights when negotiating licenses or making purchases from digital content providers.
The DMCA created limited copyright infringement protections for online service providers (OSP). The goal of the OSP provisions is to exempt from liability organizations that merely act as a conduit for digital content or that store digital content for other users. For example, if a Google customer posts a copyrighted photograph to the Google web server, Google might escape liability for contributory infringement if they follow the requirements of the law. A number of complex requirements must be met to qualify for this limited exemption. Of most significance for libraries and schools is the requirement that to qualify for the exemption the organization must have no knowledge of the infringing activity. Because libraries and schools know, or should know, what is posted to their web servers, they would probably not qualify for this exemption.
Consequently, most libraries and schools are not applying for the OSP exemption. Contributory liability for website content can be avoided by making sure no infringing material is posted to the library or school website.
"Library Exemptions" and Copyright Notice Issues
Copyright law allows libraries to copy and distribute works under certain conditions for purposes such as interlibrary loan and preservation. The DMCA now requires that any copies made by the library under the library exemptions must include the notice of copyright that appears on the original. This can be done by photocopying or otherwise reproducing the copyright statement that appears on the original and including it with the copy. If no copyright statement can be found, the copy must be marked to indicate that the material may be protected by copyright. (For example, with the stamp: "Notice: This material may be protected by Copyright Law (Title 17 U.S. Code)"). Remember to put a copyright notice on copies of web pages made by library staff. Web pages are generally copyright-protected even if the web page has no copyright notice.
Libraries may now make up to three copies (only one copy is for use) of a work that has been lost, damaged, stolen, or is deteriorating-after the library makes a reasonable effort to obtain an unused copy at a fair price. The copies may be digital, but a digital copy cannot be made available to the public outside the premises of the library. Libraries also may copy a work into a new format when a format (such as 78 rpm recordings or Beta videotapes) has become obsolete. A library must first make a reasonable effort to determine if the device needed to use that format is reasonably available in the commercial market.
Libraries should continue to comply with the guidelines for use of interlibrary loan and must post notices at any place in the library where library staff accept orders for copying (including interlibrary loan copies). Notices also are required on any library equipment that can be used for unsupervised copying. Most libraries now have computers and printers that can be used for unsupervised copying-therefore, the notice warning of copyright law should be placed on or near this equipment.
Adapted from "Complying with the DMCA: Copyright law changes will affect libraries." Channel 36, no. 1 (2000).
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County reimbursement extended to adjacent counties
When Act 420 was signed into law on May 19, 2006, a new provision extended to adjacent counties the requirement that counties reimburse public libraries for the cost of serving county residents who live in areas of the county without public library service. Beginning in 2008, libraries in adjacent counties, both within and across system borders (but excluding Milwaukee County), may be reimbursed for library use by residents of each of those counties who do not maintain a public library.
How and when does our library seek reimbursement?
The law utilizes the same schedule and requirements that were established under 1997 Act 150 for reimbursement payments to public libraries within counties. To receive reimbursement by March 1, the library must provide the following information to county clerks by July 1, of the preceding year:
- the number of loans of library materials by the library during the prior calendar year to residents of an eligible adjacent county who are not residents of a municipality with a library,
- the library's total number of all loans of material during the prior calendar year,
- the total library operating expenditures (not including capital expenditures or expenditures of federal funds) for the prior calendar year.
From these the county clerk can determine the cost-per-loan and the amount to be paid to the library. Staff at the library system or the county library service may be able to facilitate this process. In some cases, new patron variables or residence fields may have to be established in the library's automation system in order to extract the relevant residency information.
It is essential that data be collected in a manner that can withstand scrutiny by the county. If your library has rigorous procedures for confirming the place of residence of each user, and if your library keeps an actual count of annual usage broken down by place of residence, the county will probably have no problems accepting your data.
The statute provides that a county clerk may have access, upon request, to all books and records used to determine both the annual library material loans to c ounty residents who do not maintain a public library and the total annual library material loans. However, the identity of individuals using the library is protected under Wisconsin Statutes s. 43.30.
Do libraries automatically get reimbursed?
No. Each year libraries must submit their request to the clerk of the adjacent county by July 1 of the year for loans during the previous year to residents in eligible areas of the county. The county must then reimburse the library for at least 70% of the cost by March 1 of the following year.
How do we track the use?
Over 80% of public libraries are members of Integrated Library Systems (ILS) maintained by the public library system that automate the process of tracking the loan of library materials. These shared ILS consortia should make sure that circulation reports can be generated for member libraries to establish patron use in adjacent counties so that residents of municipalities that do not maintain a public library can be distinguished from those that do. Libraries with stand-alone ILS systems or manual circulation processes should establish procedures to track the loan of materials to library users in such a way as to be able to determine the total loans each year to residents of individual municipalities. The total number of loans for the prior year to residents of areas without direct library service should be submitted to the county clerk by July 1 of each year, along with the total cost of library operations for the previous year and the total circulation for the library.
Will we be reimbursed by all adjacent counties?
Not necessarily. Some counties either have a consolidated library service or a joint city-county library. In other counties, any areas of the county not serviced by municipal libraries have established branches of a county library service that provide service to the rest of the county. In these cases there would be no areas of the county without either county or other municipal library service. Some other counties have a number of municipal libraries (city, village, tribal, or joint libraries) that encompass most of the area of the county. The county is required to reimburse only for loans to residents of those municipalities that do not have their own library or participate in a joint library.
What is an "adjacent county?"
A county is considered adjacent if it shares a border, even at a single point, with your county.
Can we establish what areas of the adjacent county are eligible for reimbursement by requesting a list of municipalities that are subject to the county library tax?
No. Municipalities with public libraries are not required to request exemption from the county library tax under s. 43.64(2)(b). Loans to their residents would not be eligible for county reimbursement even though their property is subject to the county library tax.
The municipalities in our joint library have property that spans over three counties. Is our library eligible for reimbursement by any county adjacent to any of those three counties?
Yes. So long as one of the municipalities has a border extending into another county, any counties adjacent would be subject to reimbursement, assuming eligible residents from those counties use your library.
How do we determine what municipal areas of the adjacent county are subject to the reimbursement requirements?
Similar to the process used under 1997 Act 150, your library system may be able to assist you. Also, the public library annual report data, available online at dpi.wi.gov/pld/data-reports/service-data lists municipalities that are members of joint library agreements. Circulation to residents of those municipalities, in addition to other municipalities in the county with public libraries would not be eligible for reimbursement.
Do we have to subtract 500 loans from the total for each eligible municipal area?
No. That provision is related to the threshold at which a library can refuse to serve residents of an adjacent library system under s. 43.17(10) & (11).
Can counties refuse to pay the reimbursement?
No. The reimbursement is required in the statutes. While no specific penalty is incorporated in the statute, a county that fails to reimburse when properly notified could be sued by the library seeking payment.
Can our library be reimbursed by other cities, villages, or towns in adjacent counties that have libraries?
Yes, although those municipalities are not required to do so.
Adapted from "County reimbursement extended to adjacent counties." Channel 42, no. 3 (2007).
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Do employee records have to be disclosed to the public?
In 2004, Governor Doyle signed into law major changes in the open records law as it applies to employee records. The new law was developed by a Legislative Council study committee established primarily in response to recent Wisconsin Supreme Court cases that had created some confusion about the release of records about public employees.
Under the new law, records relating to employees of a public "authority" (any state or local government organization-which includes public schools, public libraries and public library systems) can be placed in the following 3 categories:
- Employee-related records that may be released under the general balancing test without providing a right of notice or judicial review to the employee. Essentially, the balancing test requires that the records custodian determine whether permitting inspection of the record would result in harm to the public interest outweighing the legislative policy recognizing the public interest in public record inspection. Generally, records that may be released under the general balancing test without providing a right of notice or judicial review to the employee are employee-related records that do not fall under categories 2 or 3, below.
- Employee-related records that may be released under the balancing test only after a notice of impending release and the right of judicial review have been provided to the employee. Persons holding a "state or local public office" (see below) do not have the right of judicial review, but they must be given the required notice and informed of the right to augment the records to be released with written documents and comments.
- A record containing information relating to an employee that is created or kept by the authority and that is the result of a completed investigation into a disciplinary matter involving the employee or possible employment-related violation by the employee of a statute, ordinance, rule, regulation, or policy of the employee's employer.
- A record obtained by the authority through a subpoena or search warrant.
- Certain records of private employees working under government contract.
- Employee-related records that are closed to public access under the open records law:
- Home address, home electronic mail address, home telephone number and social security number, unless the person has authorized release of such information.
NOTE: An employee's home address, home electronic mail address, home telephone number and social security number must be redacted from all documents, unless the person has authorized release of such information. The home address of a person holding a "state or local public office" is not protected if, as a condition of employment, an individual must reside in a specified location.
- Information relating to current uncompleted investigations of employees for criminal offense or employment related misconduct prior to completion of the investigation.
- Information pertaining to an employee's employment exam, except an exam score if access to that score is not otherwise prohibited.
- Information relating to specific employees used by an employer for staff management planning, including performance evaluations, recommendations concerning future salary adjustments, promotions, job assignments, letters of reference or other comments or ratings relating to employees.
- Home address, home electronic mail address, home telephone number and social security number, unless the person has authorized release of such information.
The law provides that individuals that hold certain higher level positions, termed "state or local public offices", do not have the right of judicial review in order to prevent the release of records that name that individual. For a public library, the library director and department heads with supervisory authority would fall under the definition of a "local public office".
Under current law, all governmental organizations must approve and prominently display a notice identifying the legal records custodian(s), establishing the time, place, and method for requesting records, and indicating any copying costs. Under the new law this notice must also list the particular "local public office" positions within the organization that do not have the right of judicial review.
It is important to be aware that an exception to the public records law for libraries is the statutory prohibition on release of records that identify an individual who uses a publicly funded library. This information can be released only with the consent of the individual or by court order or (under certain circumstances) to other libraries for interlibrary loan purposes. Any record produced in response to a public records request that contains patron information in addition to information which must be disclosed must first be edited to remove any information which could identify an individual library patron, such as a patron's name, address, or phone number.
The text of the new law is available at www.legis.state.wi.us/2003/data/acts/03Act47.pdf. It is strongly recommended that you consult with your municipal (or county) attorney or library counsel if you receive a request for records pertaining to library employees or any other record that contains personally identifiable information.
Basic information about Wisconsin's current open records law as it applies to public libraries is available in Trustee Essential #15 (available on the Web at pld.dpi.wi.gov/pld_http://pld.dpi.wi.gov/pld_te15). Trustee Essential #15 will be updated to reflect the new changes in the open records law.
Information about Wisconsin's Public Records Law as it applies to libraries can be found at dpi.wi.gov/pld/boards-directors/public-records/faq-public-records
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Does Your Board Need an Operating Manual?
You can probably locate the library's personnel policy manual and customer service manual among your resources you use at board meetings, but can you find a manual that relates to library board policy?
Significant time is spent at board meetings discussing open hours, adding or discontinuing services, or modifying terms of employment for workers. Yet if you lack some sort of operating manual for the library board, you risk administering the library inconsistently meeting to meeting and year to year.
As individuals conclude their terms on the board, the corporate history is sliced a bit thinner, so that past practices and decisions become lost or ignored. This can cause a problem for a director with more than a few years in office who carries that corporate history and expects certain situations to be handled in the same manner as the last time that the event occurred. It can also cause confusion for new board members who are not provided a context for library board operations and general practices.
What are some topics that might be addressed in such a board policy manual? The document might clarify the role that the board plays in developing, analyzing and approving the budget:
- It would, of course, include the board's by-laws,
- It might include a year round timetable for fiscal planning, and a calendar for recurring issues (see the sample calendar included in Trustee Essential 4, pld.dpi.wi.gov/pld_te4;
- It might include personnel-related issues such as the position and process concerning staff complaints directly to the board members;
- It might include the process in dealing with contracts and vendors;
- It might include the process for reviewing and adopting changes in policies proposed by the director;
- it might include policy and procedures for hiring beyond base salary, transferring funds within the budget, deposit and use of donations, or the provision for establishing operational rules or procedures;
- It might include the board's code of ethics and requirement to attend meetings;
- It might include funding and rotation for attendance at the annual library association conference;
- It might include the appropriate communications and relationships with staff when visiting the library and branches; and
- It might include when and how the board will discuss its dissatisfaction with the director outside of the annual performance review.
These are just a few of the core elements your board manual needs. And be warned that writing them may not be as easy as it first appears, unless you already have a start. Such an administrative document is an ongoing product because conditions do change that make past practices outdated, or members may agree that business should be conducted differently. When it is in writing and the board members and director work under the umbrella of its design, then the chance for ill will or ugly surprises are reduced. Take the time to start assembling the document and then use it as your guide through board meetings.
Adapted from "Best Practices: Does Your Board Need an Operating Manual?" Channel 45, no. 1 (2009).
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E-mail not private for public employees
E-mail is so convenient that it now routinely is used for everything from official correspondence to arranging luncheon meetings. However, you should be aware that if you are a local or state government employee, such as a school or public library employee, every e-mail you send or receive while on the job is probably a public record that may be subject to a public records request.
Under Wisconsin law a public record is generally anything created or kept by a public employee, official or office. Since a "record" is defined as any material on which written, drawn, printed, spoken, visual or electromagnetic information is recorded, e-mail certainly falls within the general definition of a public record. Not considered "public records" are certain drafts, notes, and preliminary computations. Also not considered public records are materials which are "purely the personal property of the custodian and have no relation to his or her office." However, e-mail records residing on a publicly-owned computer probably would not be considered purely personal property.
Wisconsin's public records law requires that public records be retained for a period not less than seven years for most records unless a shorter period has been approved by the state Public Records Board. Certain records must be retained for longer periods. For example, some library system official records need to be retained at least 10 years, as required by the Wisconsin Administrative Code. In addition, no public record may be destroyed after someone requests it until the request is granted, 60 days have elapsed following denial of the request, and litigation on the record's availability is complete, and the involved parties have complied with any court orders.
Many governmental organizations adopt policies for appropriate use of email and the retention of e-mail messages and other records. For example, the DPI policy concerning e-mail makes the following points:
- The content, not the medium, of a message determines whether and how long you save it.
- You typically throw away paper messages or notes you make about phone calls, post-its from colleagues, bulletins about agency social events, routine information requests, and so on. E-mail messages on these topics should be deleted when they
- have been acted upon.
- If an e-mail requires that you write a response applying an agency policy to specific circumstances, you should save both the request and your reply.
- E-mail discussions with colleagues on how to deal with an issue or case are part of the public record and should be saved.
- To retain records and keep them accessible, it's a good idea to create a set of e-mail folders that mirrors your paper filing system. You also may wish to print out certain e-mail records and file them with related paper documents. If an e-mail, including routing information, has been saved in another format it may be deleted.
Even though you may not think of email in the same way you think of paper records, the same legal rules apply regardless of the medium of a record.
Adapted from "E-mail not private for public employees." Channel 35, no. 4 (2000).
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Emails among library trustees raise open meetings law concerns
Email can be a time-saving communication tool and a wonderful convenience. However, the use of email to communicate among members of a library board may raise open meetings law concerns.
Under the Wisconsin open meetings law, a "meeting" of a governmental body occurs whenever: (1) there is a purpose to engage in governmental business, and (2) the number of members of the body involved in the "meeting" is sufficient to determine the body's course of action. Based on this definition, Wisconsin courts have ruled that the open meetings law applies when a series of gatherings of groups of members of the governmental body (or "walking quorum"), each less than quorum size, agree to act together in sufficient number to reach a quorum.
As email becomes more universal in homes and offices, the risk that multiple members of a governmental body consider electronic messages concurrently increases. The Wisconsin Attorney General discourages the members of any governmental body from using email to communicate about issues within the body's realm of authority.
The use of email by a library director to send information to library board members (such as a meeting agenda, supplemental materials, or additional information requested at an earlier meeting) would not necessarily implicate the open meetings law. However, group replies discussing those items may not be appropriate. And while email may be an effective method to determine the most acceptable of several meeting dates, library board members should avoid discussion of library business or consensus gathering. Such communications must take place in a legally noticed and a legally constituted meeting of the library board. (See Trustee Essential 14, "The Library Board and the Open Meetings Law" at pld.dpi.wi.gov/pld_te14)
Trustees should also remember that an email concerning library business sent to or by a library board member (or library staff member) is subject to the requirements of the Wisconsin public records law. For more on the requirements of the Wisconsin public records law see pld.dpi.wi.gov/pld_te15.
Questions about the application of these laws may be directed to your municipal or county attorney, your district attorney, or the Wisconsin Attorney General.
Adapted from Trustee Corner. Channel 40, no. 1 (2004).
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Frequently asked questions about libraries and Wisconsin's public records law
Public libraries across Wisconsin have been receiving requests for copies of written records concerning patron or staff complaints about patrons accessing inappropriate materials on public Internet terminals. In response to library questions about Wisconsin's public records law, the Division for Libraries and Technology (DLT) has prepared the following questions and answers.
Wisconsin's public records law provides that almost all records of state and local government (including public libraries) are available to the public. The policy of Wisconsin's public records law is summarized by the following statutory declaration of policy.
"In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the public policy of this state that all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those officers and employees who represent them. Further, providing persons with such information is declared to be an essential function of a representative government and an integral part of the routine duties of officers and employees whose responsibility it is to provide such information. To that end, s. 19.32 to 19.37 shall be construed in every instance with a presumption of complete public access, consistent with the conduct of governmental business. The denial of public access generally is contrary to the public interest, and only in an exceptional case may access be denied." (Wis. Stat. s.19.31)
Must we respond to all public records requests? And, how quickly do we have to respond?
You must respond to all requests to view or copy public records made by any person (except most requests from individuals who are committed or incarcerated). The requester need not be a resident of the state and generally cannot be required to give their name or the purpose of the request. Acceptable identification may be required only when necessary for security reasons or when required by federal law or regulation.
Public records requests must be responded to "as soon as practicable and without delay." Any denial of a written request for records must include a written statement of the reasons for denying the request, and must inform the requester that the determination is subject to review by mandamus (a writ from a court ordering performance of an act) or upon application to the attorney general or district attorney.
What records must be made available for viewing or copying?
Except as otherwise provided by law, any requester has the right to inspect or receive a copy of any public record. This applies to records in any format. An important exception to the public records law for libraries is the statutory prohibition on release of records that identify an individual who uses a publicly funded library (Wis. Stats. s. 43.30). Therefore, any record produced in response to a public records request must be edited to remove any information which could identify an individual as a library patron, such as a patron's name or address. This information can only be released with the consent of the individual, by court order, or (under certain circumstances) to other libraries for interlibrary loan purposes.
Common law (judge-made law) allows the denial of certain requests for access to public records if the balance of interests favors nondisclosure. Some of the cases in which the courts have upheld nondisclosure involve certain personnel records of public employees; however, the Wisconsin Supreme Court has also held that personnel records are not automatically excluded from disclosure. A 1999 Wisconsin Supreme Court decision held that a public employee whose personal interests are implicated in the potential release of records must be given the opportunity for judicial review before the records are released.
Who determines which records are subject to disclosure under the public records law?
Every organization subject to the public records law must designate in writing one or more legal custodians to respond to public records requests. In the absence of such a designation, the authority's highest ranking officer and the chief administrative officer (most likely the board president and the director, in the case of a public library) would serve as legal custodians. The mayor, village president, or town chair of your community has the option of appointing the legal custodian for library records. The custodian(s) also shall designate one or more deputies to act in his or her absence. If you have concerns about the release of certain records, it may be advisable to consult with the municipal attorney.
Every organization subject to the public records law also must adopt and prominently display a notice identifying the legal custodian and establishing the time, place, and method for requesting records and indicating any copying costs. Generally, records must be available for inspection during all regular office hours.
Can we charge for copying and other costs?
You may charge a fee not to exceed "the actual, necessary and direct cost" of reproduction and mailing. A locating fee may be charged only if the "the actual, necessary, and direct cost" of locating the records exceeds $50.
How long do we need to retain public records?
Municipal and county governing bodies can adopt ordinances that provide for the destruction of obsolete public records. However, the period of time for retention provided by these ordinances may not be less than 7 years for most records. Some library system official records need to be retained at least 10 years, as required by the Wisconsin Administrative Code.
Tape recordings of meetings may be destroyed 90 days after the minutes have been approved and published if the purpose of the recording was to make written minutes of the meeting.
Prior to destroying public records, you must give the State Historical Society at least 60 days written notice. The Historical Society may, upon application, waive this notice requirement. The Historical Society will preserve any records it determines to be of historical interest.
Can we be penalized if we violate the public records law?
Yes! An organization or legal custodian that improperly denies or delays a request may be ordered to pay the requester's attorney fees, damages of not less than $100, and other actual costs. In addition, an organization or legal custodian that arbitrarily and capriciously denies or delays response to a request, or charges excessive fees may be required to forfeit not more than $1,000 in punitive damages.
Adapted from "Frequently asked questions about libraries and Wisconsin’s public records law." Channel 35, no. 1 (1999).
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How do we ensure the person we hire as library director gets properly certified?
You raise an important concern for library boards because if your library does not have a properly certified director, the library could lose library system services or even system membership.
Public library boards are required to hire library directors who are either appropriately certified or are eligible for certification. This requirement is based on the concern that properly qualified individuals lead each of the public libraries in the state.
Library boards recruiting a library director should specify as a required qualification eligibility for a Wisconsin regular or temporary public librarian certificate appropriate to its municipal, joint municipal, or county population. It is important that the letter of appointment and/or employment contract specify that as a condition of employment the library director employed will obtain and maintain the appropriate certification.
Grade I certification is required for directors of municipal, joint, or county public libraries with a population of 6,000 or more (based on the most recent official U.S. Census), Grade II is required for populations of 3,000 to 5,999, and Grade III is required for populations less than 3,000.
A regular certificate signifies that the holder meets all of the general education and library education requirements for the grade level. A temporary certificate signifies that the holder meets all of the general education requirements, but not all of the library education requirements for the grade level. Temporary certificates are only valid for a limited time period before they must be replaced with regular certificates. A new administrator must apply for a temporary certificate within three months of the hire date.
It is not the intent of the certification law that the various grade levels of certification be used by individual library boards as either conditions of employment for positions other than the library director or as requirements for advancement within an organization.
The Division for Libraries and Technology (DLT) recommends that libraries budget sufficient annual funds for continuing education needed to improve knowledge and maintain the library director's certification (at least 20 hours per year). Payment of certification fees also is recommended, as well as paid work time and payment of other costs to pursue needed continuing education.
Additional information about Wisconsin's public librarian certification rules is available at dpi.wi.gov/pld/certification
Adapted from Trustee Corner. Channel 35, no. 6 (2000).
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How does the USA PATRIOT Act relate to the Wisconsin law that provides for the confidentiality of library records? How can our library prepare for the possibility that law enforcement officials will seek records concerning our library patrons?
One section of the USA PATRIOT Act amends the laws governing the Federal Bureau of Investigation's access to records and "other tangible things." This section of the law (entitled "Access to Records and Other Items under the Foreign Intelligence Surveillance Act (FISA)") allows the FBI to obtain court-approved search warrants requiring the production of various items for an antiterrorism investigation. These items can include books, papers, data tapes, and computer hard drives, among other items.
Most library boards are familiar with the Wisconsin law that provides for the confidentiality of library records (Wisconsin Statutes Section 43.30). That law prohibits the release of records that identify an individual who uses a publicly funded library, except under specific circumstances. Generally, records that identify a library user can be released only with the consent of the individual or by court order or (under certain circumstances) to other libraries for interlibrary loan purposes.
Both the USA PATRIOT Act and the Wisconsin library records confidentiality law provide for the release of library records by court order. Therefore, there is no apparent conflict between the two laws.
Library staff should be aware that the court acting on FISA matters is a secret court, and that the relevant law provides that "No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section."
The American Library Association notes that this section of the law requires a search warrant, not a subpoena. A search warrant, unlike a subpoena, does not allow a party a period of time to respond to and contest the court's order. An officer serving a search warrant can begin the search immediately. According to the ALA, the library or its employees are entitled to ask the officer to allow them to consult with legal counsel and to ask that the library's counsel be present for the search, but there is no opportunity or right to quash a search warrant.
Libraries also should be aware that part of the Wisconsin public records law (Section 19.62 to 19.80) requires that state and local government organizations (including libraries) develop procedures to protect the privacy of personal information kept by the organization. Libraries (and all other government organizations) are required to develop rules of conduct for employees involved in collecting, maintaining, using, and providing access to personally identifiable information. You also are required to ensure that employees handling such records "know their duties and responsibilities relating to protecting personal privacy, including applicable state and federal laws." It is important that library staff follow the requirements of both state and federal law. Your municipal attorney may be able to assist you in properly handling particular law enforcement inquiries.
Adapted from Trustee Corner. Channel 38, no. 3 (2003).
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