Recovering Public Records
through California's Replevin Law



California's replevin law enables state and local government agencies to recover public records that are not in government custody and are being held unlawfully. (Replevin means an action for recovering goods wrongfully taken or detained.) California's Public Records Act (Government Code 6250-6276.48) states, "access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state." Government records are essential to maintaining institutional knowledge and accountability over time, and to helping people understand the decisions made by their government.

 

What is a public record?

California's public records are created by state and local governments, defined by the California Public Records Act (Government Code 6250-6276.48) as any writing containing information relating to the conduct of the public's business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics.  Public records in the custody of, or maintained by, the Governor's office means any writing prepared on or after January 6, 1975.

A government record that is not in government custody is still a public record.

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How can unlawfully held public records be recovered under California's replevin law?

When public records are in private hands, the records are often inaccessible to the public and people are deprived of crucial information.

California's replevin law enables state and local government agencies to recover public records that are not in government custody and are being held unlawfully.  Following are the steps to recovering such public records.

1.  The Secretary of State may issue a written notice to any person or organization in possession of a public record that rightfully belongs to state or local government.  A local government agency may ask the Secretary to act on its behalf, or may proceed on its own following procedures similar to those for recovery of state records.

2.  Within 20 days of the Secretary of State's written notice, the person or organization must either return the record or respond in writing with an explanation of why the record does not belong to state or local government.

3.  If the record is returned within 20 days, the Secretary of State or local government agency will produce a certified copy or digital image of the record for the person or organization that returned it.

4.  If the person or organization does not respond within 20 days, the Secretary of State may ask the Attorney General to petition a county superior court for an order to return the record.  The court may issue any order necessary to protect the record and may even order that the record be delivered to the California State Archivist for safekeeping pending the court's decision. 

5.  If the court finds that the record should be returned to state or local government, the court will order the record to be delivered to the California State Archivist or other designated government official. 

6.  The prevailing party may be awarded reasonable attorney's fees in a related legal action.

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Are there exceptions to California's replevin law?

The "safe harbor" provision of California's replevin law recognizes that many organizations have custody of public records, and some may continue possessing public records if they are preserving, caring for, and managing the records in accordance with the professional practices recommended by the Society of American Archivists, as well as making the records accessible to the public according to the California Public Records Act (Government Code 6250-6276.48).

If an organization denies access to a public record in its possession and/or is negligent in caring for the public record, the Secretary of State may pursue recovery as detailed above.

California's replevin law is concerned with unlawful possession and is designed to encourage organizations to (1) obtain the appropriate legal documentation when acquiring a public record and (2) make the public record accessible to anyone who asks to see it.

If an organization has lawful possession of the public record via a legal transfer, then California's replevin law does not apply.

If an organization has questions about the legality of possession of a public record, the organization could seek a legal transfer from the entity that created the public record.  Examples of legal transfers include a deed of gift, memorandum of understanding, or a resolution from the appropriate county board of supervisors or city council.

If an organization does not have a legal instrument demonstrating it is in lawful possession of a public record but is following professional practices recommended by the Society of American Archivists and is providing public access to the record, California's replevin law does not apply.

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California's replevin law requires that organizations with custody of public records make the records accessible according to the California Public Records Act.  What does an organization have to do to comply with the law?

The California Public Records Act (Government Code 6250-6276.48) requirements are very similar to the recommended professional archival practices that most organizations already follow.  An organization that possesses public records should provide equal access to the records within 10 days (some exceptions are possible) while continuing to restrict access to confidential and personal information.

The California Public Records Act (Government Code 6250-6276.48) was created to make government records accessible to the public, regardless when a record was created.  The California Public Records Act applies to all government records, regardless of when they were created.

California's replevin law only addresses the unlawful possession of a public record.  The seller has a responsibility to have lawful possession of the public record being sold.  The buyer has a responsibility to ensure the seller lawfully possesses the public record being sold.

California's replevin law does not limit the legal remedies available to a bona fide buyer.  A bona fide buyer of a public record may seek the same legal remedies that are available to anyone who is sold an item, such as a piece of jewelry or a car, for which the seller did not have legal title.

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What if you have a state or local government public record? 

You can contact the California State Archives to make arrangements to deliver a public record.  If it is a local government record, State Archives staff can put you in contact with the appropriate local archives or government agency.

The holder of a public record is not entitled to compensation.  There are no criminal penalties for unlawful possession of a public record; however, a person who knowingly and unlawfully possesses a public record could be subject to court action.

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How can you help recover California's historical public records?

If you are a collector, dealer, or staff member in an archives, library, historical society, or museum, you can:

If you are a staff member in an archives, library, historical society, or museum, you can also:

If a local government agency recovers a record it deems to have historic interest or value, but does not wish to retain the record, California Government Code section 12226 allows the local government, by order or resolution and with the consent of the Secretary of State, to transfer the record to the Secretary of State for inclusion in the California State Archives.

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Why are public records lost or stolen?

Sometimes well-meaning government employees have "saved" records that they feared would be destroyed or suffer from neglect.  In other cases, an employee has taken public records home from work and did not return them upon leaving government service.  There are also instances in which people intentionally stole records from government custody.

Some examples of public records that were removed from government custody and/or sold into private hands include:

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