Recovering Public Records through California's Replevin Law

California's Replevin Law (Gov't. Code Section 6204) enables state and local government agencies to recover public records that are “in the possession of a person, organization, or institution not authorized by law to possess that record” and authorizes the State Archivist and Secretary of State to take specified actions to recover records.  “Replevin” means an action for recovering goods wrongfully taken or detained.  The California Replevin Law is set forth in the Government Code as follows:

Government Code - GOV

TITLE 1. GENERAL [100 - 7914]

( Title 1 enacted by Stats. 1943, Ch. 134. )

DIVISION 7. MISCELLANEOUS [6000 - 7599.2]

( Division 7 enacted by Stats. 1943, Ch. 134. )

CHAPTER 3.01. Public Records Protection and Recovery [6204 - 6204.4]

( Chapter 3.01 added by Stats. 2009, Ch. 519, Sec. 1. )

6204.

(a) For purposes of this chapter, the following definitions shall apply:

(1) “Archivist” means the Chief of Archives, as specified in Section 12227.

(2) “Record” has the same meaning as “public records” is defined in subdivision (e) of Section 6252, and includes, but is not limited to, any writing containing information relating to the conduct of the public’s business prepared, owned, used, or retained by a state or local agency regardless of physical form or characteristics.

(3) “Secretary” means the Secretary of State.

(b) Whenever the secretary, in consultation with the archivist, has reasonable grounds to believe that a record belonging to the state or a local agency is in the possession of a person, organization, or institution not authorized by law to possess that record, the secretary may issue a written notice demanding that person, organization, or institution to do either of the following within 20 calendar days of receiving the notice:

(1) Return the record to the appropriate state or local agency.

(2) Respond in writing and declare why the record does not belong to the state or a local agency.

(c) The notice and demand issued pursuant to subdivision (b) shall identify the record claimed to belong to the state or local agency with reasonable specificity, and shall state that the secretary is authorized to take legal action to recover the record if the person, organization, or institution fails to respond in writing within the required time or does not adequately demonstrate that the record does not belong to the state or a local agency.

(d) The secretary shall send the notice and demand specified in subdivision (b) by certified or registered mail, return receipt requested.

(e) When a record is returned pursuant to paragraph (1) of subdivision (b), upon the request of the person, organization, or institution that returned the record, the secretary or a local agency that receives the record shall issue to that person, organization, or institution a copy or digital image of the record, which shall be certified as a true copy of the record that was returned to the state or local agency, and dated on the same day the record was returned.

(Amended by Stats. 2014, Ch. 28, Sec. 4. Effective June 20, 2014.)

6204.1.

(a) If a person, organization, or institution that receives a written notice and demand from the secretary pursuant to Section 6204 does not deliver the described record, does not respond to the notice and demand within the required time, or does not adequately demonstrate that the record does not belong to the state or a local agency, the secretary may ask the Attorney General to petition the superior court in the county in which the records are located for an order requiring the return of the record.

(b) After a hearing, and upon a finding that the specified record is in the possession of a person, organization, or institution not authorized by law to possess the record, the court shall order the record to be delivered to the archivist or other government official designated by the court.

(c) The court may issue any order necessary to protect the record from destruction, alteration, transfer, conveyance, or alienation by the person, organization, or institution in possession of the record, and may order the record to be surrendered into the custody of the archivist pending the court’s decision on the petition.The court may order the record to be available for public access under a request made pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250).

(Added by Stats. 2009, Ch. 519, Sec. 1. Effective January 1, 2010.)

6204.2.

(a) If a local agency has reasonable grounds to believe that a record belonging to that local agency is in the possession of a person, organization, or institution not authorized by law to possess the record, it may request the secretary to act on its behalf pursuant to the procedures specified in Sections 6204 and 6204.1, or undertake on its own behalf the same procedure available to the secretary under those sections, subject to subdivisions (b), (c), and (d).

(b) If a person, organization, or institution that receives a written notice and demand from a local agency issued pursuant to this section does not deliver the described record, does not respond to the notice and demand within the required time, or does not adequately demonstrate that the record does not belong to the local agency, the local agency may request the county district attorney or, where applicable, the city attorney, to petition the superior court in the county in which the record is located for an order requiring the return of the record.

(c) After a hearing, and upon a finding that a specified record is in the possession of a person, organization, or institution not authorized by law to possess the record, the court shall order the record to be delivered to the local agency or a government official designated by the court.

(d) The court may issue any order necessary to protect the record from destruction, alteration, transfer, conveyance, or alienation by the person, organization, or institution in possession of the record, and may order the record to be surrendered into the custody of the local agency pending the court’s decision on the petition. The court may order the record to be available for public access under a request made pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250).

(Added by Stats. 2009, Ch. 519, Sec. 1. Effective January 1, 2010.)

6204.3.

(a) Notwithstanding any other provision of this chapter, an organization or institution having physical custody of a record shall be exempt from Sections 6204 to 6204.2, inclusive, if the organization or institution meets both of the following requirements:

(1) It follows professional practices recommended by the Society of American Archivists, as used by the archivist, for the management, care, and preservation of historical records.

(2) It requires that all records it receives or maintains are subject to inspection to the same extent that the records would be subject to inspection and not exempt from disclosure pursuant to Chapter 3.5 (commencing with Section 6250) if received or maintained by a public agency.

(b) If an organization or institution refuses public inspection of a record in its custody in violation of the requirements described in paragraph (2) of subdivision (a), the archivist or local agency, or a designated representative, shall contact the organization or institution to inform it of those requirements and, if appropriate, facilitate inspection of the record. If an organization or institution continues to deny public inspection consistent with paragraph (2) of subdivision (a), the secretary, on behalf of the archivist or the local agency may pursue recovery of the records under this chapter.

(Added by Stats. 2009, Ch. 519, Sec. 1. Effective January 1, 2010.)

6204.4.

In an action brought pursuant to this chapter, the court may award reasonable attorney’s fees and costs to the prevailing party.

(Added by Stats. 2009, Ch. 519, Sec. 1. Effective January 1, 2010.)