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The Replevin Process in Government Archives: Recovery and the Contentious Question of Ownership

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The Replevin Process in Government Archives: Recovery and the Contentious Question of Ownership THE REPLEVIN PROCESS IN GOVERNMENT ARCHIVES: RECOVERY AND THE CONTENTIOUS QUESTION OF OWNERSHIP by Eleanor Mattern B.A., Lehigh University, 2007 M.A., Syracuse University, 2009 Submitted to the Graduate Faculty of School of Information Sciences in partial fulfillment of the requirements for the degree of Doctor of Philosophy University of Pittsburgh 2014 UNIVERSITY OF PITTSBURGH SCHOOL OF INFORMATION SCIENCES This dissertation was presented by Eleanor Mattern It was defended on May 16, 2014 and approved by Dr. Brian Beaton, Assistant Professor, Library and Information Science Dr. James D. "Kip" Currier, Assistant Professor, Library and Information Science Dr. Tomas A. Lipinski, Dean, School of Information Studies, University of Wisconsin-Milwaukee Dissertation Advisor: Dr. Richard J. Cox, Professor, Library and Information Sciences ii Copyright © by Eleanor Mattern 2014 iii THE REPLEVIN PROCESS IN GOVERNMENT ARCHIVES: RECOVERY AND THE CONTENTIOUS QUESTION OF OWNERSHIP Eleanor Mattern, PhD University of Pittsburgh, 2014 To an attorney practicing law in the common law system, the term “replevin” describes a legal remedy for recovering personal property held by another party. In this civil procedure, the determination of rightful ownership falls to the court. Archivists and manuscript collectors have appropriated this same term to describe any effort by a government archives to recover public records in private hands, whether these efforts involve the courts or are carried out informally through discussions and negotiations with private parties. The number of “true” replevin cases involving disputed public records is small and existing commentary in the archival literature focus on these judicial decisions. This dissertation examines the quieter cases, developing a sharper understanding of what replevin means to individuals who are charged with preserving records and to those who are personally driven to collect. Three state archives serve as case studies and semi-structured interviews with institutional employees, archival records, active records, statute and case law as data sources. A consistent message emerging from discussions with government officials is that each replevin case is singular in the manner in which it is resolved. Still, there is an apparent pattern to the replevin of public records, conceptualized in this dissertation as a six-stage process. Each case begins with the discovery of the alienated record and results in a custody determination favoring either the government or the private party. This dissertation determines that variances in statute, case law, and the involvement of legal counsel strongly influence a government’s iv decision to pursue, the shape of negotiations, and the state’s ultimate ability to recover the targeted record. The issue of replevin is one that has provoked friction between the community of government archivists and some members of the collecting community, a friction largely stemming from an ambiguous understanding of the nature of a “public record” and disagreement as to whether an archives should lay claim to records that never have been in its possession. This study probes the motivations of public officials pursuing public records and argues that it is in the public interest for public archives to have an active replevin agenda. v TABLE OF CONTENTS PREFACE ……………………………………………………………………………….ix I. THE RESEARCH PROBLEM ................................................................................... 1 I.A. SIGNIFICANCE OF STUDY ............................................................................................ 3 I.B. RESEARCH QUESTIONS .............................................................................................. 7 I.C. CORE CONCEPTS TO STUDY ........................................................................................ 7 I.D. CASE STUDIES ............................................................................................................ 9 II. REVIEW OF THE LITERATURE ......................................................................... 26 II.A. PROPERTY AND OWNERSHIP ................................................................................... 27 II.B. THE NATURE OF PUBLIC RECORDS ......................................................................... 35 II.C. REPLEVIN AS A LEGAL CONCEPT ............................................................................ 39 II.D. REPLEVIN AS A CONCEPT IN THE ARCHIVAL FIELD ................................................. 44 II.E. REPLEVIN OF PUBLIC RECORDS IN COURT .............................................................. 51 II.F. REPLEVIN OF PUBLIC RECORDS OUTSIDE OF COURT ............................................... 65 II.G. REPLEVIN, PRIVATE DEALERS, AND COLLECTORS ................................................. 68 III. METHODOLOGY ................................................................................................... 72 III.A. CASE STUDIES AS STRATEGY OF INQUIRY ............................................................. 72 III.B. DATA SOURCES ..................................................................................................... 75 III.C. THE INSTITUTIONAL REVIEW BOARD .................................................................... 80 IV. THE NORTH CAROLINA CASE ......................................................................... 81 IV.A. THE MEANING OF PUBLIC RECORD IN NORTH CAROLINA ..................................... 82 IV.B. THE SHAPE OF REPLEVIN ....................................................................................... 86 IV.C. THE REPLEVIN PROCESS IN NORTH CAROLINA ...................................................... 89 IV.D. CASE STUDIES OF REPLEVIN IN NORTH CAROLINA ............................................. 100 IV.E. SUMMARY ........................................................................................................... 117 V. THE PENNSYLVANIA CASE ............................................................................... 124 V.A. THE MEANING OF PUBLIC RECORD IN PENNSYLVANIA ......................................... 124 V.B. THE REPLEVIN PROCESS IN PENNSYLVANIA ......................................................... 128 V.C. CASE STUDIES OF REPLEVIN IN PENNSYLVANIA ................................................... 141 V.D. SUMMARY ............................................................................................................ 172 vi VI. THE VIRGINIA CASE .......................................................................................... 175 VI.A.THE MEANING OF PUBLIC RECORD IN VIRGINIA ................................................. 176 VI.B. THE REPLEVIN PROCESS IN VIRGINIA .................................................................. 182 VI.C. CASE STUDIES OF REPLEVIN IN VIRGINIA ............................................................ 200 VI.D. SUMMARY ........................................................................................................... 223 VII. DISCUSSION AND FUTURE DIRECTIONS ................................................... 227 VII.A A REFLECTION ON REPLEVIN AND THE PUBLIC GOOD ........................................ 227 VII.B. FUTURE DIRECTIONS IN RESEARCH .................................................................... 233 APPENDIX A. INSTITUTIONAL REVIEW BOARD DETERMINATION ............................... 237 APPENDIX B. DOCUMENTATION RELATED TO RECORD REQUESTS ............................. 240 APPENDIX C. LEGAL ABBREVIATIONS APPEARING IN CITATIONS .............................. 243 BIBLIOGRAPHY ......................................................................................................... 244 vii LIST OF FIGURES FIGURE 1. NC DEPARTMENT OF CULTURAL RESOURCES ORGANIZATION ...................... 13 FIGURE 2. PHMC ORGANIZATION .................................................................................. 17 FIGURE 3. LIBRARY OF VIRGINIA ORGANIZATION ......................................................... 21 FIGURE 4. THE REPLEVIN PROCESS ................................................................................ 86 FIGURE 5. “EXAMPLES OF VIRGINIA PUBLIC RECORDS” .............................................. 184 FIGURE 6. LOV CATALOG ENTRY FOR RECOVERED HENRICO COUNTY RECORDS ...... 199 FIGURE 7. LOV CATALOG ENTRY FOR RECOVERED JOURNAL OF THE CONVENTION .... 217 viii PREFACE In the fall of 2010, Dr. Bernadette Callery lent me a book. My readers who were fortunate to know Bernadette likely remember a book or two – or many more – that she directed their way. This particular recommendation was journalist David Howard’s Lost Rights, his 2010 account of the State of North Carolina’s recovery of its original copy of the Bill of Rights. Recognizing my interests in issues of ownership and repatriation, Bernadette, along with my equally supportive advisor Dr. Richard J. Cox, helped to position me on the path that resulted in this study on replevin. Often, as I wrote these pages, I thought of Bernadette. I like to think that she would have had as much fun reading this dissertation as I had learning from her. To my dissertation committee members, I thank you. Dr. Richard J. Cox, thank you for deepening my appreciation for the tremendous societal impact that archivists are capable of yielding. Like Bernadette, your influence helped shape this document. Dr. Brian Beaton deserves my heartfelt thanks for providing consistent words of encouragement and for posing those fantastic questions that left me reflecting
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