Replevin is a legal remedy to a situation in which the plaintiff claims that the accused  unjustly holds something that belongs to the plaintiff, and the plaintiff wants it back. The accused may have come to hold it in many different ways. Perhaps the plaintiff loaned it to the accused for a set period of time, and that time has gone by. Perhaps the plaintiff lost it, and the accused found it and will not return it. Perhaps someone stole it and gave it or sold it to the accused.  Replevin does not imply guilt for any wrong-doing beyond holding property that the plaintiff wants back.

The use of replevin in English law goes back to at least the middle of the thirteenth century. Today, replevin laws exist all over the world as civil, not criminal, actions. A replevin action grows out of the plaintiff’s inability to recover his or her property alone, so he or she turns to the justice system for help with recovery the actual property, not its monetary value.

To initiate a replevin action, the plaintiff must file a claim with the court. While state laws differ in detail, all expect the plaintiff to show:

  1. that the plaintiff owns the property or a has legal right to possession of it.
  2. that the accused has no right to hold the property
  3. that the property did not leave the plaintiff’s possession as a result of any legal action
  4. the approximate value of the property1

Replevin actions occur in regard to a wide variety of materials, but here we will focus on replevin as it applies to historical documents.

What’s a public document?

States define public documents in a variety of ways that tend to follow several common themes:

  1. Some definitions link public documents to the act of creation or reception. For example, “all documentary material, regardless of media or characteristics, made or received and maintained by an agency in accordance with law or rule or in the transaction of its official business.”2 Most states do not include the extra copies of printed or processed material, but do include local as well as state documents in the definition. For example: “Ledgers recording the official business of cities, [or] towns…such as minutes of meetings, charters or records of organization, ordinances, etc.  Documents recorded by municipal clerks and retained by them. Records of  government institutions: poor farms, jails, public hospitals, reform schools, public schools.”3
  2. Other states link the expenditure of public money to public documents, saying that a document “created or received in the performance of a public duty or paid for by public funds by a governing body are deemed to be public property and shall constitute a record of public acts, including local government officials.”4
  3. Like the first example above, some states emphasize that not all records exist on paper.

Most states forbid “the separation of any public record from public ownership.”5 The states argue that “public records contain a wealth of invaluable information related to governmental actions that may be of concern to citizens of the commonwealth. The removal of these documents from public access hinders the ability of the general public to understand the consequences of actions by government agencies. This disrupts a key element of government accountability and unfairly takes useful historical resources out of the public’s reach.”6

State laws put government officials in charge of the disposal of public documents, saying “it is illegal for government records to be sold or alienated from public custody unless done in accordance with established legal retention procedures.”7

Many laws forbid private ownership of public records, typically arguing that public records are public property, which “must remain forever in public custody, and at no time can public records legally be owned, traded, sold, or bought by members of the general public….”8 Some state laws even apply current standards back through time, declaring that all law about public records are “retrospective, retroactive….”9

With Replevin as an Established Procedure, What Will the States Do about Alienated Documents?

State laws vary greatly, and they determine the parameters an archivist has for acting on or negotiating within a replevin action. Given the authority and  resources, archivists will act to retrieve alienated documents. However, the actual pursuit and prosecution must happen through the state’s Attorney General’s office.

Archivists understand that reclaiming documents causes a lot of pain to the holder, and they have devised a variety of ways to soften the blow. Because states do not want to pay for something they claim they already own, they may seek to compensate the holder of the materials without outwardly buying the document. Some seek out a cultural organization to buy the document and then turn around and donate it to the archives. The state may pay a ‘caretaker’s fee’ to help cover the expense of caring for the document over time.  If the holder paid for conservation or restoration work, the state may agree to cover part of that cost. Archivists will also arrange for an independent appraisal of the document and provide the holder with a document that shows that the holder donated the document to the state, thus making it possible for the donor to claim a charitable tax deduction. Many states make a point of holding highly publicized ‘Coming Home’ parties for the documents. They set up a display so visitors can see the documents, officials make speeches, and everyone enjoys the refreshment. For maximum exposure, archivists invite the press.

States will not accept copies of alienated public documents.

1 Menzi L. Bernd-Koldt, Navigating Legal Issues in Archives. (Chicago: Society of American Archivists, 2008), p. 169. Bernd-Koldt summarizes the legal history and procedures related to replevin as it relates to public documents.
2 Maine Revised Statutes Title 5: Administrative Procedures and Services: Part 1: State Departments: Chapter 6: State Archivist Heading: Pl 1973, C. 625, §16 (New) §92-A. Definitions 11/9/09
3 “Involved in the Purchase or Sale of Government Records? It’s Illegal! Please Consider the Following:” 10/25/09
4 Georgia. State and Court Records (O.C.G.A. 50-18-102) and Local Government Records (O.C.G.A. 50-18-99) 10/14/09
5 Library of Virginia. “The Sale of Government Records Is Illegal!” 4/17/11
6 Library of Virginia. “The Sale of Government Records Is Illegal!” 4/17/11
7 Texas State Library and Archives Commission. “ Sale of Government Records.” 4/17/11
8 Tennessee. State Library and Archives. 10/25/09
9 New Jersey. Department of State. Public Records and Archives. New Jersey Missing or Alienated Records of the State of New Jersey Public Notice 1/4/10