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HomeMy Public PortalAboutOct2019conduct11' FPL WatertDwn Free Public Library Library Director Leone E. Cole TO: Library Board of Trustees i FROM: Leone E. Cole, Library Director DATE: September 27, 2019 RE: Recommended change to conduct policy As a follow up to the email I sent September 16, 2019 and the subsequent opinion from the Town Attorney (both attached), I am recommending a change to the conduct policy. Specifically, I recommend that the sentence "Photographing or video taping of individuals unless authorized by the individuals involved or with permission of the parent or guardian if a minor is involved" be deleted from the policy. Thank you for your consideration of this matter. 123 Main Street Watertown, MA 02472-4478 617.97z.6434 watertownlib.org Library Conduct Watertown Free Public Library provides a safe, comfortable environment conducive to the use of the library materials and facilities. The Library is intended for the use of all members of the public. Patrons are expected to observe the rights of other patrons and staff members and to use the Library for its intended purposes. Patrons must be fully clothed. Patrons whose bodily hygiene is offensive so as to constitute a nuisance to other persons shall be required to leave the building. No smoking or vaping on library property or within 25 feet of the library building. Misconduct will not be allowed in the library. Definition: Misconduct may include, but is not limited to: • Interfering with the rights of individuals to use the library materials, services and premises;1 • Interfering with the ability of staff to conduct library business; • Threatening the secure and comfortable environment of the library or those using the library; • Willfully annoying, harassing,2 or threatening another person; • Endangering or potentially endangering the safety or health of others; • Engaging in disorderly, loud, or boisterous behavior in a manner not in keeping with the atmosphere of a library; • Using abusive or profane language; • Theft, vandalism, or the deliberate destruction of materials, property, or the personal property of patrons or staff members; • Maliciously accessing, altering, deleting, damaging, or destroying any computers, peripherals, computer system, network, computer program or data; • Impeding access to library resources, premises, or an area of the premises; • Entering the non-public or locked areas, unless accompanied by a staff member or through prior authorization from a staff member; • Using personal electronic devices without earphones or with earphones at an unreasonable volume; 'The term "premises" includes: the interior of all Library buildings and the exterior on the lot on which Library buildings are situated. 2 Harassment is defined as any action taken or situation created that would be reasonably deemed to produce psychological or physical discomfort, embarrassment, or humiliation for others. Harassment is characterized by requests for sexual contact, unwelcome physical advances, or conduct (verbal or physical) of a nature that is intimidating, demeaning, hostile, offensive, or potentially dangerous to self or others. Approved July 28, 2009; Amended November 2, 2017 • Using cell phones at a volume that is disruptive to others; • Distributing or posting material without staff approval; • Photographing or video taping of individuals unless authorized by the individuals involved or with permission of the parent or guardian if a minor is involved; • Soliciting of sales or selling to library patrons except at library -sponsored events; • Using tobacco or nicotine delivery products inside the library; • Bringing animals into the library, except those trained to assist individuals with • disabilities or for library -sponsored events involving animals; Eating food in the library with the exception of the cafe or approved meeting room events; Bringing uncovered beverages into the library; Using alcohol on library premises; • Using restroom facilities for activities other than their intended purpose; • Conduct that otherwise violates municipal, state, or federal law or regulations. Consequences Enforcement of these rules may take the form of any of the following actions, depending upon the severity of the misconduct, which will be determined by the staff on duty at the time. Misconduct by persons under eighteen years of age is discussed by the remedies provided in the section regarding unattended children. • Patrons who engage in misconduct will be given one warning and asked to behave in an appropriate manner. Patrons who do not modify their behavior after one warning may be asked to leave for the rest of the day. • Patrons who engage in misconduct that in the judgment of a staff member is "extreme" may be ordered to leave the building immediately and may be requested not to return for the remainder of the day. "Extreme" misconduct may include activities that are harassing, threatening, dangerous or destructive to persons or property at the Library premises. • If necessary, a staff member may call the police for assistance. • Patrons who engage in misconduct may receive, by certified or registered mail or hand delivery, written notice from the Director of suspension or revocation of Library privileges, including prohibition against entering the Library for a period of one week to one year, depending on the nature of the misconduct, the extent of damage or disruption caused by policy infractions, and other relevant circumstances. Patrons may request a hearing before the Board of Library Trustees to appeal the notice within fourteen (14) days of such notice and the notice shall include language advising the patron of the right to appeal. Any unlawful actions committed in the library or on the library premises will immediately be reported to the Watertown Police Department. Approved July 28, 2009; Amended November 2, 2017 Cole, Leone From: allregions-request@mblc.state.ma.us on behalf of MLA IF/SRC Committee <ifsrc@masslib.org> Sent: Monday, September 16, 2019 7:15 PM To: allregions@mblc.state.ma.us Subject: [allregions] First Amendment 'audits' in MA We've been made aware that some people are performing "First Amendment audits" inside MA public libraries in order to challenge photography/video policies. Text from Jessamyn West's email to the IF/SRC about it is included below, with her permission. According to the Wisconsin Department of Public Instruction (WDPI): "First Amendment Audits are a form of activism in the United States designed to test the rights of an individual to film in a public space. An auditor selects a public facility and then films the entire encounter with staff and customers alike. If no confrontation or attempt to stop the filming occurs, then the facility passes the test; if an employee attempts to stop a filming event, it fails... [they] do not appear to be associated with any particular organization; rather, they seem to be conducted by individual citizens interested in filming their encounters with public agencies" <https://dpi.wi.gov/wilibrariesforeveryone/candid-cameras-how-respond-first-amendment-audit>. We know of at least one recent visit to the Public Library of Brookline, the video of which is posted on YouTube <https://m.youtube.com/watch?v=VJD3V_gZEBs>. The link is included should people wish to prepare themselves and other staff members for what might occur during such a visit. Opinions about how to handle such visits vary; see text from WDPI and the American Libraries Association's Office for Intellectual Freedom (ALA-OIF) below. In consultation with the MLA Executive Board, the IF/SRC recommends that libraries consult their own town administration and legal counsel for advice on how to proceed. If you would like to report a visit to your library, please feel free to contact us, and/or you can report it to ALA- OIF <http://www.ala.org/aboutala/offices/oiff at oifgala.org or 312-280-4226. Regards, Carol Witt and Andrea Fiorillo Co -Chairs, Intellectual Freedom and Social Responsibilities Committee I'm Jessamyn a librarian from Vermont, but my sister works for State Police in Massachusetts. They've had an influx of "First Amendment Auditors" who show up at the state police offices and generally make a nuisance of themselves demanding to be let into "public" buildings and areas, all the while wearing body cams and recording everything which they upload (or stream live) to YouTube. They're essentially trying to get public officials t make a misstep and illegally prevent them from filming. It's messy and it's been a pain for them to deal with. Here's an example. 1 https://www.youtube.com/watch?v=phe7rlPXVhw Writing in to let you know that, according to my sister (not a cop but works for State Police) they're starting to move to libraries in Massachusetts. I think, unlike the police, the librarians are less likely to know the weird legal nuances of what people's legal rights are to film in public versus, say, people's right to not be filmed and etc. And to be honest, I'm not sure I know myself. The glik ruling is the latest one that covers people's rights to video police. ACLU: https://www.aclu.org/press-releases/appeals-court-unanimously-affirms-right-videotape- police Wikipedia: https://en.wikipedia.org/wiki/Glik v. Cunniffe In the post linked above, WDPI stated, "When training staff, be sure to differentiate between personal recordings created by individuals from outside the library organization, and "records" produced or retained by the library. While the library has an ethical and legal obligation to protect library records, it cannot —and should not — present the library as a sanctuary of private and public anonymity. In truth, the library is a public space and, as such, there is no justifiable reason to prohibit a person from filming in a library, unless perhaps it is for the purpose of harassment, or where there is a reasonable expectation of privacy (such as in a restroom). In addition, make sure they understand that, unlike those created by the public, any photographs or video produced by library staff and volunteers may be in violation of s. 43.30 of the Wisconsin Statutes if used without permission. "So when that auditor walks through the door, let them film away! After all, it is a free country." In a SIFnet (State Intellectual Freedom Network) post on ALA Connect, the Interim Director of ALA-OIF wrote: "Libraries have been confronted by self-appointed citizens' groups who claim that the library is a traditional public forum. These groups claim that they are entitled to take identifiable photographs of staff and patrons using library resources or attending library programs and publish them without the permission of the staff member, patron or the library administration. This misconstrues the nature of the library. It is a limited public forum for the purpose of receiving or accessing information. Other expressive activities — including third party photography in the library - are subject to reasonable, viewpoint neutral regulation by the library under policies and procedures developed in accordance with the IFC's Guidelines for the Development of Policies and Procedures Regarding User Behavior and Library Usage. Given the possible chilling effect on individuals' library usage, the library user's right to privacy, and potential threat of harassment posed by third party photography or recording, it is reasonable for the library to regulate that behavior in a manner that preserves the individual patron's right to receive information free from harassment, intimidation, or threats to their safety, well-being, and privacy rights. The means of achieving this is determined by each library board, in light of the applicable local, state, and federal law and as 2 appropriate to the library's and the community's needs and circumstances. "The act of photographing or filming the activities of library users by a third party has generally been addressed as a behavior issue or a media relations issue by libraries. For example, Chicago Public Library specifically bars the photography or recording of library users in its behavior policy: www.chipublib.org/library-use-guidelines. St. Louis Public Library has a more detailed policy that bars photographers from taking identifiable images of other library users and establishes rules for media: https://www.slpl.org/service-policies/filming-and-photography-policy. "(Please note that this language is legal information and is not a legal opinion. It should not be treated as legal advice. Please consult with your own legal counsel for legal advice regarding your particular situation)" <https://connect.ala.org/viewthread?MessageKey=e9195850-e662-444b- b923-1dc7970676ee> allregions@mblc.state.ma.us is a statewide discussion list for Massachusetts libraries To advertise or request free items, please use freebies@mblc.state.ma.us. To Unsubscribe: mail to:sympa@mblc.state.ma.us&subj ect=UNSUBSCRIB E%20allregions Digest Mode: To receive a twice -weekly digest of allregions mail: m ai lto: sympa@mbl c. state. m a. us?subject=set%2 0al lregions%20di gest 3 Cole, Leone From: Mark R. Reich <MReich@k-plaw.com> Sent: Thursday, September 19, 2019 9:49 AM To: Cole, Leone Cc: Driscoll, Michael Subject: RE: [allregions] First Amendment 'audits' in MA Leone — We have noted a number of instances where groups have sought to undertake recording in various public places and Town offices. Please note that Town offices are generally considered open to the public and so claims of privacy are very limited. In the case of Town offices, we advise that video recording is allowable in those areas open to the public and that employees should be mindful not to leave in plain sight sensitive documents which may not be subject to mandatory disclosure. In my opinion, the library is also a public place which is subject to access by the general public. Therefore, in my opinion, video recording would be permissible in those areas open to the public. Areas not open to the public, such as interior offices, would similarly not be subject to recording, in my opinion. While individuals do have privacy interests in intellectual property, including what they chose to read, in my opinion those rights are largely surrendered when they chose to use the library's reading rooms. While there is a privacy interesting books and materials that are checked out for use at home, privacy interests in materials accessed in public areas are more limited since anyone using the public areas of the library can see what others are reading. We have recommended that towns be sensitive to their employees and advise employees who are reluctant to be recorded to make use of the non-public office space while any recording is being undertaken. Personnel who are less likely to react to such activities should be utilized to interact with the recording entity. The recording should not interrupt the use of the library, and should be limited to public areas as discussed above. We also recommend that posting of signage be undertaken outside and inside the Library to put members of the public on notice that the area is subject to recording. The signage could state "NOTICE: Areas Within the Watertown Public Library Are Subject to Recording". This notice would make members of the public aware of possible recording and allow them to choose whether to enter the building. Further, if the recording captures audio of individuals, such recording may be subject to the state Wiretap Statute, G.L. c. 272, §99. Specifically, under the statute there are specific requirements that must be met prior to conducting audio recordings of individuals. Specifically, the statute makes it a crime to "willfully commit[] an interception . . . of any wire or oral communication," G.L. c. 272, § 99(C)(1). As the Supreme Judicial Court has noted, this statute sweeps more broadly than comparable laws in other jurisdictions, in that its prohibition is not restricted to the recording of communications that are made with a reasonable expectation of privacy. See Commonwealth v. Hyde, 434 Mass. 594 (2001). The critical limiting term in the statute is "interception," defined to mean "to secretly hear, secretly record, or aid another to secretly hear or secretly record the contents of any wire or oral communication through the use of any intercepting device by any person other than a person given prior authority by all parties to such communication." Id. § 99(6)(4). Massachusetts courts have held that a recording is "secret" unless the subject has "actual knowledge" of the fact of recording. Commonwealth v. Jackson, 370 Mass. 502 (1976). In my opinion, posting signage of recordings would place members of the public on notice that they are being recorded and so may preclude claims against the Town for invasion of privacy and violation of the wiretap statute. Whether claims may be brought against those undertaking the recording based upon their actions would be a matter for consideration by those individuals involved. Please contact me with further questions regarding this matter. 1 Mark Mark R. Reich, Esq. KP I LAW 101 Arch Street, 12th Floor Boston, MA 02110 0: (617) 556 0007 F: (617) 654 1735 mreich(cDk-plaw.com www.k-plaw.com This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is PRIVILEGED and CONFIDENTIAL and/or may contain ATTORNEY WORK PRODUCT. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and attachments thereto, if any, and destroy any hard copies you may have created and notify me immediately. From: Cole, Leone [mailto:lcole@watertown-ma.gov] Sent: Tuesday, September 17, 2019 9:40 AM To: Mark R. Reich <MReich@k-plaw.com> Cc: Driscoll, Michael <mdriscoll@watertown-ma.gov> Subject: FW: [allregions] First Amendment 'audits' in MA Good morning Mark, Please see the email below. Our conduct policy (attached) has a rule against filming without permission of the subjects. I am wondering if that line should be removed from our policy. Can you please let me know your opinion? Thanks, Leone From: allregions-request@mblc.state.ma.us Imailto:allregions-request@mblc.state.ma.us] On Behalf Of MLA IF/SRC Committee Sent: Monday, September 16, 2019 7:15 PM To: allregions@mblc.state.ma.us Subject: [allregions] First Amendment 'audits' in MA We've been made aware that some people are performing "First Amendment audits" inside MA public libraries in order to challenge photography/video policies. Text from Jessamyn West's email to the IF/SRC about it is included below, with her permission. According to the Wisconsin Department of Public Instruction (WDPI): "First Amendment Audits are a form of activism in the United States designed to test the rights of an individual to film in a public space. An auditor selects a public facility and then films the entire encounter with staff and customers alike. If no confrontation or attempt to stop the filming occurs, then the facility passes the test; if an employee attempts to stop a filming event, it fails... [they] do not appear to be associated with any particular organization; rather, they seem to be conducted by individual citizens interested in filming their encounters with public agencies" <https://dpi.wi. gov/wilibrariesforeveryone/candid-cameras-how-respond-first-amendment-audit> We know of at least one recent visit to the Public Library of Brookline, the video of which is posted on YouTube <https://m.youtube.com/watch?v=VJD3V qZEBs>. The link is included should 2