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
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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