Origin of the Requirement to Keep Government Records

From the first days of the Continental Congress, it is clear that our Founding Fathers wanted We the People to know what actions were taken by the Federal government and what laws were passed by Congress. To ensure that We the People knew, in July 1789, Theodore Sedgwick, Representative from the Second District of Massachusetts wrote what is known as An Act to provide for the safe keeping of the Acts, Records and Seal of the United States, and for other purposes. Its short name is The Records Act of 1789.

When Sedgwick began writing, he’d already had a successful career. He served as a major in the Continental Army, was a member of the Massachusetts Bar, and was a member of the House of Representatives. Later, he became the Speaker of the House under President Adams and later became a Senator from Massachusetts.

The bill submitted to the House on July 31st, 1789, was passed on to the Senate on August 27th. The Senate sent back the bill on September 7th with a modification approved by the House on September 8th and signed into law by President Washington on September 15th, 1789.

In the first section of Sedgwick’s bill, the name of the Department of Foreign Affairs is changed to the Department of State, which would be led by the Secretary of State. Back then, the Department of State had an internal role along with overseeing our relations with foreign governments.

Sedgwick’s bill authorizes the design of the Seal of the United States and contains five provisions governing how the seal can be used and who retains custody of the design. Its most far-reaching provision is the requirement for publishing information on the actions of Congress.

The Records Act of 1789 requires every piece of legislation that came to the floor of the House and/or Senate for a vote or, if passed and vetoed by the President, to be published in at least three publicly owned newspapers. This ties into Article I (Legislative), Section 8, Clause 7, which states that the Legislative branch shall have the power to Establish post offices and Post roads.

Franklin, in his vision for what became the U.S. Post Office, was that it would be a vehicle to distribute newspapers, pamphlets, books, and magazines. As such, the Post Office would offer a discount to those who use the service which today is called Media Mail.

The Records Act of 1789 required the Federal government to preserve all its official records, including notes and other documents. The Department of State was given the responsibility to collect and store these records. Court records were to be retained by federal courts at all levels and at specified locations in each district. These records, including those from the Executive and Legislative branches, were to be made available to We the People.

When the legal statutes were revised in 1875 and codified into Title 5 U.S. Code, section 301, the Housekeeping Statute. The code now states The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public.

Powerful words that have often been abused.

Image is of page 1 of The Records Act of 1789 from the National Archives