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Document ownership. Before attempting to recover the item, be sure to gather all records that document your organization’s ownership of it. This may include accession records, finding aids, researcher forms, microfilm or other images, and any other record that indicates that your organization is the lawful custodian of the item. See Document Your Collections for a description of these tools.
Assign a spokesperson. Designate the person in your organization who will serve as the principal contact with the seller. Consult with your organization’s counsel and leadership on this designation.
Contact auction site or other point of sale. If a missing item is discovered on an online auction site, your organization may choose to follow the site’s existing processes for reporting possible fraud. Most of these sites, including eBay, have policies that prohibit the sale of stolen property. Reports to the site will frequently put an immediate stop to an auction if it lists stolen items.
Communicate with the seller. Your organization may decide to communicate directly with the seller. You may wish to inquire about an item to obtain a better sense of whether it is from your collection or whether the seller has similar items. This may provide an opportunity to explain your position as the legal owner and request voluntary surrender.
You may choose to research the seller’s past sales before taking action. This may help you determine whether the seller may have been in possession of multiple items from your collection Be prepared to supply proof of ownership. It is possible that the seller will help you trace the item’s sale history, which may produce not only your stolen item but also the identity of the thief.
Offer incentives. Some sellers or collectors may volunteer to surrender the item if you show flexibility and provide incentives:
- A press conference or other positive public acknowledgment of the return may be appropriate, especially if it generates positive attention for their business.
- Tax deductions. In situations where financial loss is a concern, the seller or collector may be willing to forfeit their costs if offered a tax deduction for donating the item back to your organization.
“Buy backs” refer to a repository purchasing an item that was previously removed from its holdings. This method raises legal and ethical issues because you are buying something that may technically belong to you. There are also obvious financial implications. However, you may encounter a situation where a buy back at a low price could be an expedient solution to recovery.
Legal action. It may be appropriate to take legal action to reclaim records alienated from your custody. Prior to taking any legal action, seek guidance from your counsel.
For local governments, 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.
Several types of court actions can be taken against holders of alienated records.
- Criminal charges, including grand larceny and criminal possession of stolen property.
- Replevin, which is a commonly used 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. This law is easier to apply to the reclamation of records than sections of penal law, where there is the need to prove criminal intent.
When you take legal action, solid evidence will support your case. Documentation is your best defense in the prevention of theft of records as well as during a replevin action.