The Legal Battle for DOGE Transparency

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In early February, the news broke that employees of the Department of Government Efficiency, or DOGE, had received an email ordering them to stop using Slack while lawyers sorted out the matter of “records migration.” The reasons were unclear, but the change had significant implications for communication: according to Jason R. Baron, a professor at the University of Maryland and former director of litigation at the National Archives and Records Administration, the transition represented the difference between DOGE’s internal correspondence being covered by the Federal Records Act, and thus subject to Freedom of Information Act requests, versus the Presidential Records Act, which would exclude the office from FOIA. “The administration position is that those records will not be accessible until 2034,” Baron said. “But if they’re subject to FOIA, those records are available now.”

Lawyers who specialize in public records and government transparency were uniformly shocked. As DOGE raced to upend the federal government, it was evidently also seeking to avoid scrutiny. When I spoke to Katherine Anthony, the deputy chief counsel of American Oversight, a good-government group, she told me that DOGE was effectively claiming the right to decide for itself which laws it had to comply with. “It’s kind of like saying, ‘I’m copying my lawyer on this email so it’s attorney-client privilege.’ That’s not how that works!” Anthony said. “There are legal tests that you have to apply to the specific substance of that email to decide whether it’s attorney-client privilege. Same here—there are legal tests that tell you whether or not a component within the Executive Office of the President is or is not subject to FOIA.”

But for journalists, who rely on FOIA to keep track of government operations, a practical problem remained. By the time DOGE decided not to follow the standard legal logic, it had already gutted USAID, offered buyouts to two million federal workers, and begun accessing government computer systems. FOIA requests for documents are notoriously slow—they can sometimes take years—and the question of public-records compliance could easily become moot before it landed in front of a federal judge empowered to intervene. Anthony and her peers at other public interest groups got to work strategizing about how to force DOGE into a courtroom as quickly as possible. 

On February 11, once a spokesperson confirmed the transfer of DOGE to the office of the president, American Oversight, which had already tried submitting expedited FOIA requests to DOGE, decided to file a legal complaint “seeking declaratory and injunctive relief to compel compliance with the requirements of FOIA in connection with FOIA requests for communications involving Elon Musk and his key staff.” A month later, Elizabeth Haddix, the lead author of the complaint, told me that DOGE hadn’t responded, even though under an expedited FOIA process an agency is obliged to reply within twenty days. Ignoring requests is something, Haddix said, “we’ll need the court to make a ruling on.” But the concern was still timing. American Oversight had not sought a preliminary injunction “by a date certain”—a legal term of art meant to establish a firm deadline after which a documents request will no longer have any value. Haddix told me that American Oversight had not made its request along these lines “because that’s extraordinary relief that you seek when the records are urgently necessary based on some pending election or a decision that’s about to be made.”

On that point, another group—Citizens for Responsibility and Ethics in Washington, or CREW—made a different call. “This DOGE situation is something of a unicorn,” Nikhel Sus, the deputy chief counsel, told me. “You have a completely new, de facto agency that is massively disrupting federal operations. And there’s just an urgency to inform the public writ large about what this entity is doing and how they’re doing it.” CREW, in drafting its own complaint, latched on to the idea of making a documents request “by a date certain.” As for the date: Sus and two colleagues, Jonathan Maier and Donald Sherman, decided to focus on the congressional budgeting process, which anticipated a March 14 deadline, when the government would run out of money and cease normal operations. They reasoned that Congress needed detailed information about DOGE’s internal operations, Sus said, “to not only meaningfully participate in this debate over appropriations, but also understand what’s going to happen to those funds.”

CREW lodged its complaint on February 20. The filing included a motion for a preliminary injunction that would force DOGE to release records sufficiently in advance of the budget deadline—no later than March 10. Records related to budget planning provided a source of urgency but, as Sus put it, “the main purpose of bringing this case was to confirm that DOGE is exercising substantial independent authority throughout the executive branch and therefore is subject to FOIA.”

The plan worked. With less than three weeks between when Sus, Maier, and Sherman filed their complaint and the date requested for relief, Christopher R. “Casey” Cooper—a United States District Court judge in Washington, DC—called a hearing for March 6. (It was the earliest date he could manage; when the case was assigned to his docket, he’d been on vacation.)

In court, Judge Cooper expressed skepticism over the premise of CREW’s request for an injunction “by a date certain,” since congressional budget stalemates have become fairly routine in Washington. (As it happened, days later Congress passed a continuing resolution keeping the government funded through September.) Nevertheless, he was glad to rule on the central question of whether DOGE was subject to FOIA. He sided with CREW, writing in his opinion that DOGE “is likely covered by FOIA and that the public would be irreparably harmed by an indefinite delay in unearthing the records CREW seeks.” DOGE was then ordered to preserve its records and respond to CREW’s requests on an expedited basis. By March 20, DOGE had to estimate the total number of documents it would need to prepare.  

Sus characterized Judge Cooper’s decision as an acknowledgment “that there’s an urgency here. He did recognize that DOGE is moving at an unprecedented rapid pace, and that due in part to the speed with which DOGE is moving, there needs to be corresponding transparency under FOIA.” After all, “being subject to FOIA means that you have to open yourself up to external scrutiny, so that the public and the press and others can make an independent judgment about the operations of government entities and how they’re using or potentially misusing taxpayer dollars.”

But if Judge Cooper identified a sense of urgency in the pursuit of public records, DOGE has not. Rather than appeal the ruling—which would land the case before the Supreme Court, where justices might be more sympathetic to arguments against transparency—lawyers for DOGE have sought to delay the order. On March 14, they filed a motion for reconsideration; that was denied. Days later, they submitted a request for a summary judgment that would contradict Cooper’s ruling. These stalling tactics only managed to win DOGE a seven-day extension on the deadline to present an estimate on the total number of documents covered by CREW’s request. Finally, on March 27, DOGE’s lawyers produced a number: fifty-eight thousand. Later, Judge Cooper ordered that the office had to process a thousand documents per month—meaning that years will likely pass before the scope of CREW’s original FOIA request is fulfilled.

As the weeks went by, other groups felt emboldened to push for immediate relief under FOIA, too. The New York Times and CBS reported that, a day after Marco Rubio, the secretary of state, thanked DOGE for overseeing the cancelation of fifty-two hundred agency contracts, USAID employees were instructed to destroy personnel records and classified documents. In response, American Oversight sought a temporary restraining order against USAID that would force it to preserve all records covered by FOIA. Soon the matter landed in front of another US District Court judge in DC: Tanya Chutkan.

The hearing, on March 19, served mostly to clarify the judiciary’s limited ability to keep a rogue executive branch in check. Judge Chutkan acknowledged the assurances of the Trump administration that no more documents were being destroyed. Then she turned to Tabitha Bartholomew, the US attorney representing the defendants. “No USAID emails past or current are being destroyed?” Judge Chutkan asked. “Yes, your honor,” Bartholomew replied.

Satisfied, Judge Chutkan told American Oversight’s lawyers that unless there was any evidence that USAID or other federal officials were lying, there was no reason to proceed. After all, even if she issued an order to the administrators of USAID telling them to preserve their records, the court had no means of enforcement more powerful than a sworn statement in court. (The implication being that if Bartholomew was later found to have lied during the hearing, she could be prosecuted for perjury.) Ultimately, American Oversight withdrew its request for a restraining order.

Judge Cooper’s finding that DOGE is “likely” subject to FOIA should compel DOGE to acknowledge and process all document requests—but as Judge Chutkan reasoned, there is no way for the judiciary to ensure that compliance. In this way, the legal battle for transparency into DOGE traces the same path as much of the other litigation making its way through the federal courts: the Trump administration has shown its willingness to flout judicial orders, which means there can be no counting on compliance with any given FOIA request.

“What we’re seeing is a constitutional crisis in the works about separation of powers,” Carey Shenkman, a human rights lawyer, told me. Which isn’t to say that free speech advocates should not pursue every recourse they can through the legal system. As Anthony, of American Oversight, put it, “It’s important that civil society is initiating these procedural lawsuits to ensure that the government is being held accountable to their legal obligations, because the result, if they aren’t, is just chaos.” But these legal filings are a bit like using a microscope to look at an elephant. Though they may offer a glimpse of useful information, they can’t capture a full view—especially if the lens is covered, or the entire apparatus destroyed. That has turned out to be the case at the Centers for Disease Control, Food and Drug Administration, and National Institutes of Health, where personnel responsible for processing FOIA requests were recently fired en masse.

And there are only so many microscopes. CREW’s success may not be easily replicated by other organizations, as courts are unlikely to welcome too many FOIA filings for an injunction “by a date certain” or requests for a restraining order related to document retention. “It’s incumbent on journalists, litigants, and groups like ours to really think carefully about when we do seek preliminary injunctions,” Sus said. “Because if you do it in every case, it’s going to overwhelm the courts, and it’s going to, frankly, annoy the courts. They have a lot of other matters—emergency matters—that they’re considering right now, so we need to be responsible stewards of how judicial resources are used.”

That means journalists will need to rely directly on sources rather than official document requests when it comes to covering DOGE—or any other branch of the federal bureaucracy. In recent years, the number of FOIA submissions has risen dramatically, not just from reporters, but also private firms (in law, real estate, and so on) that have otherwise found it increasingly difficult to access public records. The influx has overwhelmed FOIA offices, many of them part of federal departments now facing stark budget cuts. Bloomberg has reported that, so far this year, the Department of Health and Human Services has already received two thousand FOIA requests. After layoffs authorized by Robert F. Kennedy Jr., who runs the agency, the backlog is now anticipated to grow to more than nine thousand.

“One tool that journalists have that we don’t necessarily have,” Anthony said, “is well-developed networks and contacts that you can call and talk to. Maybe there are records you can get outside of the FOIA process altogether.” A case in point is the Washington Post’s scoop of DOGE blueprints for eliminating diversity, equity, and inclusion programs, based on a document reporters were able to obtain and bring to the public far more quickly than the FOIA process would have allowed.

Other reporters are finding creative ways to use FOIA to connect with sources, rather than merely as a means of obtaining public records. Jimmy Tobias, from a newsletter called Public Domain, told me, “I’ve been filing FOIA requests to get the names and contact information of all the civil servants at various Interior Department agencies, and then sending out emails saying, ‘I’m covering what’s happening to your agency. If you ever want to talk, give me a call.’ I can’t believe the amount of responses that I’ve gotten from that.” It’s a positive sign, though we’ll have to see how others fare at agencies where FOIA officers have lost their jobs.

“The level of transparency you have is a reflection of the government you have,” Lauren Harper, a public records analyst at the Freedom of the Press Foundation, told me. “More transparency means less corruption and potential for state capture. It’s an existential issue, and not one that our federal records laws or the people in the bureaucracy are equipped to deal with when you’re facing someone who moves as quickly as Elon Musk.” Laws such as FOIA are necessary aids in keeping the government accountable. But in the DOGE era, reporters won’t be able to rely on records requests as they may have in the past. “Fortunately,” Tobias said, “a lot of people are so disturbed by what’s happening that they’re willing to talk.”

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