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After months of speculation about how the Elon Musk-led Department of Government Efficiency would be subject to transparency rules, a judge recently found that the agency is “likely covered” by the Freedom of Information Act and will likely have to make its records available to the public by request.
This would mean that DOGE cannot hide its records through the Presidential Records Act — which prohibits records requests of presidential materials for at least five years after a president leaves office.
This is all good news, but it’s not a guarantee DOGE’s records will soon see the light of day.
To break down this recent development, our Daniel Ellsberg chair on government secrecy, Lauren Harper, engaged with Reddit’s r/IAmA community members on March 18 in a Q&A session.
The following select questions from various Reddit users, and Harper’s answers, have been edited for brevity and clarity. You can view the full thread here.
Can I get some more context on the use of the word “likely” covered by FOIA in the judge’s ruling? That appears to leave a lot of legal wiggle room.
There is definitely a lot of wiggle room. U.S. District Judge Christopher Cooper’s ruling was preliminary, so it might not stick.
There are some things to consider in terms of whether DOGE goes from “likely” to “definitely” covered. It will depend on if the government appeals the ruling (I’m sure that it will but it has not yet), and the outcome of two other FOIA lawsuits that are challenging DOGE’s status as a FOIA entity.
So if DOGE is illegally destroying documents, a court tells them they’re illegally destroying documents, and they just keep doing it because in the worst case scenario they get a pardon. What’s the point of any further litigation? It feels like the Republicans are using their hands in soccer and we're still just trying to use our feet.
I think the question of “what do we do if the Trump administration and DOGE don’t comply with court orders” is a good one — but we are not at the point where the government is completely ignoring court orders.
As it stands, I think the FOIA litigation serves a few purposes. It generates a lot of attention and reporting, and public awareness and outrage does have an impact. It also serves to educate members of Congress who are looking for ways to be responsive to public outrage and can get them to prod the agencies more directly.
You are absolutely right that much of this is playing defense. There needs to be a way to be proactive, so agencies don’t take it upon themselves to ignore FOIA requests or destroy records.
Do you honestly think DOGE is maintaining records as the law demands? Are records being created in a repository of record? Is there a person(s) who are responsible for managing those records as the law demands? As a former records manager, I’m guessing they aren’t.
I do not think DOGE is following proper procedures. My big concern at the moment is that DOGE, beyond possibly destroying records, may be establishing memorandums of understanding with all the federal agencies it accesses that basically say, “your records are our records now.” This might mean other agencies can’t release their own records in response to FOIA.
I think this is additionally complicated by the fact that it has fired much of the senior leadership at the National Archives. If the lights aren’t on at the National Archives, we are going to have a records-keeping crisis across the entire government.
Are there repercussions if DOGE destroys or alters the data it is accessing? How are they able to access some of these databases without the proper clearances? Will this be considered a spillage?
Yes. In theory, there are repercussions for the unlawful destruction of federal records. You can read more about what those are here.
The million dollar question with this, as well as with FOIA compliance, is whether anybody at the Department of Justice would stand up to DOGE. Considering that the Trump administration just fired the head of the DOJ’s information policy office, there’s good reason to worry the DOJ will stay silent.
Regarding the clearance issue: We simply don’t know the status of many DOGE employees’ clearances. That said, the president has the ultimate discretion about when to grant security clearances, and Trump has granted security clearances over the objections of the FBI in the past.
In terms of access to these databases, I think DOGE is relying on 1) intimidation, and 2) cooperation from sympathetic agency heads. We’ve seen more than once that when officials protest granting DOGE access, they are fired.
Has there ever been a person (Musk) or agency setup that they run (DOGE) involved with the U.S. government in such a way before? If so, what’s the closest example? If not, what are the ramifications going forward to setting precedent?
DOGE is unique in most ways I can think of, but I think the closest examples of how DOGE should be run in terms of transparency can be found elsewhere within the Executive Office of the President, which is where DOGE is located.
DOGE is also VERY unique in terms of how it operates within other federal agencies and the access that it has been granted. An outstanding question is: What is DOGE doing with the records it’s accessed at places like the Office of Personnel Management (where it installed its own servers) and the U.S. Agency for International Development? Is DOGE making copies of agency records, taking records entirely off of agency servers, or something else?
It’s also worth noting that while Musk is obviously the force behind DOGE, he’s not the administrator. This makes his role in the government even murkier.
I’ve never made a FOIA request before, and in doing so, specifically, for information on DOGE, do you see any possible blowback to the requester? After all, we are dealing with an entity (DOGE) that is highly sophisticated in its information gathering. Can my request come back to haunt me (i.e. through doxxing me, or something worse)?
I would encourage people not to be afraid. You have the right to request information under FOIA, and plenty of people do it. That said, there are instances where people do get nervous filing FOIA requests (with places like ICE and the FBI, for example) because you have to include personal information including an address.
If this is a situation you find yourself in, let your conscience be your guide. All of the FOIA officials in the federal government who I have ever met are on the side of the requester, for the most part. They are doing their job, they know the rules, and they follow them.
Read the full thread on Reddit and check out our explainer video about this recent ruling below.
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