Jed Brickner asked about the legality of patrons taking personal photos of microfilm images at the New York City Municipal Archives. It's a very good question! And so I hope you will indulge reading a long answer.
As the president of 501(c)3 non-profit advocacy group Reclaim The Records, I can tell you that the Municipal Archives' policy that bans the taking of these images is illegal under New York State law. This past February, just before the pandemic started shutting things down in earnest, I flew from California to New York City specifically to have an in-person meeting with the Archives staff about this exact topic, as well as two other major areas of concern where the Archives has been continually breaking the law for several years.
(The Archives were forced to hold this meeting with Reclaim The Records, because we told them we wouldn't drop our counter-appeal in yet another "Article 78" Freedom of Information lawsuit we had just won against them until they agreed to this meeting. We made them put it in writing in the settlement paperwork. 😏)
Attending this meeting with me were two other members of Reclaim The Records' Board of Directors, both of them also Jewish genealogists whose names you might know, Alec Ferretti and Tammy Hepps, as well as our organization's long-time New York attorney David Rankin of Beldock, Levine, and Hoffman. Sitting across the table from us were quite a lot of people: several staff members at the Archives, the Archives' attorney, a legal intern, as well as three New York City "corporation counsel" attorneys, representing the city's interests rather than the Archives per se. I presume they were there to see what kinds of trouble the Archives had now caused the city by getting sued and losing yet another case -- and thereby costing the city budget some taxpayer money, yet again.
To our surprise, the Archives had laid out a large assortment of muffins and cookies and fruits for our meeting, and I joked that you know it's serious when they not only let you have food in the map room a few feet away from the documents, but they even provide it themselves.
I'll avoid getting into the longer details for some of the topics we all discussed that day, but the first related to our most recent successful lawsuit, and our plans for making many future records requests, and then putting those records online for free public use, which is what our organization is known for. And the second issue related to a potential class action lawsuit we may be launching against the Archives in the future, for years of "copyfraud" and disingenuous licensing of public records that they do not actually own. True to form, that little licensing and "permission" issue has taken hundreds of thousands of dollars out of the hands of genealogists and researchers and journalists, and directly into the budget of the Archives over the years.
But the third issue we discussed in the meeting was the very same issue that Jed just asked about in his e-mail message, the rights of patrons to take photos of microfilm records, or of the computer screens that display the newly-scanned full-color vital records copies. The most senior member of the city corporation counsel there seemed genuinely taken aback when we told him about this issue. "Wait," he said, "you mean you don't just have trouble getting records from afar [under FOIL], you're having trouble in the building?" Yes, that too, we told him.
Sitting at the table, Alec and Tammy both told the corporation counsel their personal stories of being yelled at by Archives staffers and/or being unable to get copies of documents for genealogical clients because they were not permitted to photograph their computer screen or microfilm, and instead were being forced to ask the staff to print -- for money -- the exact same documents.
We pointed out that not only is there an illegal sign paced in the Archives room itself (see photo below, which of course I was not "allowed" to take, and had to do surreptitiously!), but that the Archives also forces all patrons to personally sign into a Google Form when they enter the room, and this form contains the "photography is not permitted" clause in it (see another photo below):
This is, shall we say, highly problematic, because the New York State Freedom of Information Law (FOIL) explicitly says that people may take photographs of state or local government documents that are otherwise made available to the public. You can go see your town's budget documents if you walk into City Hall. Now, it is reasonable to take precautions against damage to any records, even possibly prohibiting the use of a camera flash on very old paper, but photographing a computer monitor or just the light projected through a microfilm onto a white table clearly would not be held to that level of care.
There is really one, and only one, reason that the Archives would so brazenly break the state law in this manner: they want to sell copies of these public records, rather than make the information contained in the documents available more easily to anyone, including those with a camera or cellphone. This attitude is entirely in keeping with their loathsome behavior over the years, which has now gotten them legally slapped down twice. It is an attempt to enforce ownership over historical public records, and to profit from it exclusively. And it's really, really gross.
Anyway. The corporation counsel then told us and our attorney that he would "discuss" these matters with the Archives staff and they would "get current on it". He actually used that interesting phrase a few times in the meeting, and I enjoyed it very much each time. The feeling I got from the meeting was that the city corporation counsel had not been not entirely aware of what the Archives had been up to, and how much legal jeopardy they were potentially facing, and the Archives has been costing the city money by their actions for years now, and they were now being very kindly alerted that they were putting themselves at risk of yet another suit if they didn't fix these problems, too.
So the Reclaim The Records crew left the meeting in good spirits, and hoped to have our official replies about these various could-you-please-stop-breaking-the-law issues soon. We were told we would have official letters from the city on these policy issues, and potential policy changes, within a month or so.
But then the pandemic broke out in earnest, and for obvious reasons, we were not about to start sending polite-but-imminent-lawsuit-threatening letters to New York City government officials during those awful months.
However, those months have now passed in New York, for the most part, and we do intend to pick back up and pursue those "get current on this" outcomes we were being promised.
So, when the Archives building at 31 Chambers Street finally re-opens to the public for research, possibly later this year, will that illegal sign and that illegal Google Form promoting that illegal policy still be there? Or will the Archives have instigated yet another costly legal smackdown, despite having been given ample warning and time to remedy the matter, even with in-person notice to both their agency attorney and three city attorneys?
Stay tuned. 😉
^ The Reclaim The Records crew exiting the NYC Municipal Archives building after our meeting with the city, February 19, 2020. Left to right: Brooke Schreier Ganz, Tammy Hepps, Alec Ferretti, David Rankin
- Brooke Schreier Ganz
President and Founder, Reclaim The Records
Mill Valley, California