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Records Advisory: Reclaiming Alienated Records
Government records are considered alienated when they have left the custody of state or local government before the expiration of the records’ legal retention periods. The records may be found in the possession of a current or former government employee or a private individual, or they may be available for sale by a commercial concern (such as an online auction or antiquarian bookstore). They may also have been given, without a formal loan or deposit agreement, to a library or museum not operated by the local government or state agency that owns the records or to a historical society.
Below are steps to take when you discover that the records of your local government or state agency may be in the custody of another person or organization.
- When you discover records that you suspect are alienated, initiate a conversation to determine an appropriate action with your records management officer (RMO), chief executive officer (CEO), legal counsel, historian or archivist, and State Archives representative. Local governments may contact their regional advisory officer (RAO); state agencies may contact either the director of Government Records Services or the chief of Archival Services at the New York State Archives.
- Confirm whether or not the records are records alienated from government custody. You can verify that some records are government records based on internal evidence. For others, you may need to draw on resident knowledge of your recordkeeping practices plus documentation such as records inventories, collection guides, series descriptions, or records locators.
- If the records do legally belong to your local government or state agency, attempt to determine how they left your custody. If you can confirm the records were stolen, your legal counsel may advise calling law enforcement first for assistance. You may pursue criminal charges against the person who took the records and the person in possession of the records. This is an appropriate course of action to take against elected officials who take their records with them when they leave office. (See the discussion of possible court actions below, under #6.)
- If you determine that it is unnecessary or not feasible to press criminal charges against the holder of the records, your legal counsel should begin negotiations to retrieve the records. Such negotiations depend on the circumstances of the situation and may include the following:
- If records are held by a private individual,
- Determine the most appropriate person to contact the individual. If your goal is diplomacy and negotiation, a lawyer or member of law enforcement may not be the best choice.
- Propose to give the individual photocopies, digital images, or transcripts in exchange for the original records.
- Suggest the individual return the records to the government in exchange for positive publicity or simply on behalf of the public good.
- Point out that, under certain circumstances, the individual may be able to claim a charitable IRS contribution for the return of the records.
- If records are held by a commercial seller,
- Determine the most appropriate person to contact the seller. You may need to use the services of an attorney or call law enforcement to prevent a sale of the records.
- Request that the records be withheld from sale until a determination of ownership is complete.
- As with private individuals, attempt to persuade the seller to return the records to the government in exchange for positive publicity.
- Look for a generous third party to reimburse the seller’s cost of purchase as an incentive to return the records. Under certain circumstances, the dealer and third party (either or both) may be able to claim a charitable IRS contribution for the return of the records.
- Propose paying a nominal amount to the seller to cover the costs of the initial investment and subsequent care of the records, as well as packaging and shipping costs for their return to government custody.
- If records are for sale online or up for auction,
- Take steps to suspend the auction or sale of the records until a determination of ownership is complete. This may require the cooperation of an Internet auction service (eBay or craigslist, for example) as well as the consigner. If the auction site is eBay, your legal counsel should contact the eBay Fraud Investigation Team at email@example.com and/or fax a letter to 408-967-9915.
- Work with an auction site to contact the seller, and attempt to obtain a temporary restraining order to prevent a sale in the interim. This may be difficult to accomplish for several reasons: 1) state courts do not have jurisdiction over out-of-state vendors; 2) a sale may occur on short notice, and a court order may be issued too late; 3) an attorney and court may be reluctant to request and issue an order unless the monetary value of the records is very high.
- If you cannot obtain a temporary restraining order, place a bid (or have someone place a bid on your behalf) on the records, making sure your CEO and legal counsel are aware of and endorse the bidding. Keep all documentation related to the transaction.
- If you have contact with the seller, follow steps outlined above for dealing with a private individual or a commercial seller.
- If records are in the possession of an historical records repository,
- If the records are permanent or have not passed their retention period according to a State Archives retention schedule, you may either proceed with negotiations for their return or execute a formal deposit agreement so that the records may remain where they are.
- Offer to provide a copy of the records to the repository in exchange for the originals, or, if that fails, to request a copy of the records in place of the originals.
- If all else fails, determine the appropriate legal action in consultation with State Archives staff as needed. State agencies with records alienated from their custody may contact the Attorney General’s office. For local government records, your legal counsel can contact the county district attorney or even the Attorney General to impress on the respondent the importance of surrendering the records. In some cases, local law enforcement personnel, the State Police, or staff of the Attorney General’s Office may seize physical custody of records to prevent their sale or auction until legal proceedings have concluded.
- Different actions can be taken against holders of alienated records. (See the appendix for a discussion of laws that might be relevant to the reclamation of alienated records.)
- Pressing criminal charges, including grand larceny and criminal possession of stolen property.
- Replevin, which is the common term for a legal action to reclaim property that is improperly or illegally in the custody of others. Actions called replevin are conducted under the terms of Article 71 of the Civil Practice Law and Rules (CPLR). This may be easier to apply to the reclamation of records than sections of penal law, where there is the need to prove criminal intent. In many cases, public records left government custody many years ago under unknown and, very possibly, non-malicious circumstances.
- Provide evidence to support your case. In replevin actions, the courts require documentation of some kind before they will remove a defendant’s right of ownership. A well documented records management program—regulated by policies and procedures—is your best defense against the alienation of records in the first place as well as during a replevin action.
The court may order the defendant be granted some monetary compensation for “good faith” purchase of the records from their previous possessor and the subsequent cost of their care.