Intellectual Freedom

Open Meetings Act

The Open Meetings Act (OMA), 1976 PA 267, MCL 15.261 et.seq. is Michigan’s version of what many states call “Law in the Sunshine” acts. It is a variation of Freedom of Information Acts in that the intent of the OMA is government transparency. The OMA specifies that any decision or determination of a public body must be accomplished in a “public meeting.”

It also mandates that any meeting of a public body where a majority or “quorum” of members are present constitutes a “public meeting.”

Under the act, the occurrences of “public meetings” must comply with certain criteria, including:

  • Meeting details (when, where) must be noticed in an area “assured to provide access to the notice.”(Such as on the Library Circ desk, front door, Facebook page and website)
  • The nature of the meeting determines the timing of the notice.
  • Meeting must be open to the public.
  • Agenda must include an opportunity for public comment
  • Meeting minutes must be taken and made available to the public.
  • In a public meeting, members of the public may record and/or video proceedings at will.

In considering Open Meetings Act issues, it is important to remember that the intent of the act is transparency- if unsure, it is likely prudent to err on the side of access and openness than restriction.

Related Links:
Michigan Open Meetings Handbook- A handy reference on compliance with the Open Meetings 
Library of Michigan Library Law page (see “Open Meetings Act” heading)
Michigan Municipal League, Handbook for Municipal Officials, Appendix 3, Overview of the Open Meetings Act

Freedom of information Act

The Freedom of Information Act (1976 PA 442, MCL 15.231, et.seq.) functions as a counterpart to the Open Meetings Act. Instead of focusing on meetings and activities of government, FOIA focuses on documents and information. FOIA is also rooted firmly around the idea that government activities should be transparent – that in a nation where governance is “of the people, by the people and for the people,” people should have complete access to the documents and work product of government.

Michigan’s FOIA law mirrors the Federal FOIA. All materials that are “created, owned, used, possessed or retained by a public entity in the performance of an official function” (MCL 15.232(e)) must be available to the public upon request.

Under FOIA in Michigan, requests must be written, and a public entity may charge for provision of documents or copies if the public entity has an appropriate FOIA policy readily available to the public in either a written or electronic form.

Related Links:
Michigan FOIA Handbook – Handy overview by the Michigan Attorney General’s office
Guide to FOIA Statutory Exemptions - Michigan Municipal Attorney Association 
FOIA FAQS – Michigan Attorney General Office

Other Resources
Michigan Municipal League-Handbook for Municipal Officials – Appendix 4 – Overview of the Freedom of Information Act, pp118.

First Amendment/Intellectual Freeedom

The First Amendment of the United States Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The five highlighted words above sum up much of what libraries are all about – for freedom of speech is not only about outward expression but also knowledge and expression consumed. According to the American Library Association (ALA), libraries are unbiased, non-partisan forums where all patrons should have the right to read what they wish without fear of retribution or censure. Over the years, courts have affirmed that first Amendment rights apply to public meeting rooms, political canvassing and even (to a certain extent), pornography.

Intellectual Freedom – Collection Development and Challenges – The most common First Amendment issue many libraries face is opposition to particular titles or types of materials. Libraries should have thoughtful, well compiled written policies and procedures for how to respond when library materials are challenged. The American Library Association has useful resources and assistance for libraries facing materials challenges.

Intellectual freedom – Restriction of Materials. The ALA’s Library Bill of Rights supports the ability of patrons to access any materials they wish, regardless of age or reading level. Libraries are encouraged to balance open access with applicable Federal, State & local laws (for example, some Federal programs require filtering of computers), with the needs of their communities.

First Amendment – Public Meeting Rooms -  For purposes of the First Amendment, Public Libraries are considered a “Limited Public Forum.” This means that while Libraries, as a public space, can not prevent people from exercising their First Amendment Rights in the Library, the Library CAN control Time Place and Manner – or, in other words, a Public Library can implement policies that somewhat dictate how, when and where the expressions occur. However, these policies and procedures MUST be content neutral, which means that Libraries can not have procedures that limit expression according to the topic or subject of the expression. For example, if a library mandates that a meeting room can only be used for non-commercial use (no sales or business use), and they refuse use to a local crafter who wants to have a show and sell articles, then they can’t hold their Friend’s group book sale in the room, or let Girl Scouts sell cookies.

First Amendment – Political Canvassing/Petitioning – Off all Free Speech rights, political speech is the most protected under the law. The Framers of the Constitution were particularly concerned about political speech and the ability to “speak truth to power” and criticize the government. Therefore, attempts to restrict any type of political speech is typically very difficult. Public Libraries, as limited public forums, CAN limit political canvassing to the outdoors, and can require that canvassers or petition gatherers refrain from obstructing access to the library entrances and exits. However, libraries cannot remove political canvassers or petition gatherers nor can libraries banish these practices from library property.  Libraries must also treat all canvassers, protesters, petitioners, etc., the same regardless of the topic or subject of their political activities.

Related Links: ALA General Library Policy Development LibGuides page
New Mexico State Library, Collection Development Policy Workbook
Bergen County Collective Library System, Collection Development Policy Template
ALA Intellectual Freedom - Interpretation of the Library Bill of Rights -  Restricted Access to Materials
ALA Intellectual freedom – Library Meeting Rooms and Displays
Library of Michigan information sheet on Library displays
Public Libraries Online – Ethics of Library Meeting Rooms

Other Resources:
Minow, Lipinski, Library Legal Answer Book (includes chapter on Meeting Rooms & Displays) – Available from Library of Michigan via MelCat
Minow, Lipinski, & McCord, Library Legal Answers for Meeting Rooms and Displays (ALA e-book edition) $25

Copyright

The Copyright Act of 1976, 17 USC section 101, et seq, governs, for the United States, how literary, artistic, phonographic, photographic, musical,  film, digital, and other creative works may be utilized by people other than the creators of those works. While the law provides a broad safe harbor against prosecution for uses that are deemed “Fair Use,” it should be noted that “Fair Use” requires an analysis of the planned use against a set of four criteria – and a non-profit, “educational” use is not always, by itself, a Fair Use.

Four Prong Test of Fair Use:

  1.  the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

Section 108 Library Uses –
17 USC 108 is the section of the Copyright Act that provides libraries with special permissions to lend and photocopy works for distribution to the public and to provide patrons with the ability to copy materials in the library. Part of section 108 is the requirement that libraries place specific notice language on public copiers, faxes, printers, and scanners:
(i.e. "Notice: The copyright law of the United States (Title 17 U.S. Code) governs the making of photocopies or other reproductions of copyrighted material. The person using this equipment is liable for any infringement.” From RUSA (Reference & User Services division of ALA) 

Related Links:
ALA Copyright/Fair Use LibGuide/Research Guide  
ALA Fair Use Evaluator Index & Table of Contents
ALA Issues and Advocacy – Copyright Tools
Columbia University Copyright Advisory Service, Fair Use Checklist
United States Copyright Office. More Information on Fair Use
Section 108 Explanation via Copyright Crash Course
Copyright Office Circular 21 “Reproduction of Copyrighted Works by Libraries and Educators”