By: Lindsey Vickers
Depending on who you ask, the newly minted Department of Government Efficiency, or DOGE, might be described as the harbinger of layoffs, a threat to individual privacy, or a force for good in the federal government. If you ask an investigative journalist, the answer might be a black box. That’s because DOGE, seemingly with the aid of President Trump’s administration, is attempting to circumvent longstanding public records frameworks and laws that apply to most government agencies.
The Freedom of Information Act, or FOIA, has faced many challenges over the years—like what should an agency do when acknowledging a record’s existence could threaten national security? (The answer is the Glomar response, where the agency neither confirms nor denies the record even exists.) But DOGE poses a unique challenge to government transparency and public records law from a legal standpoint.
What is FOIA and why does it exist?
FOIA was signed into law in 1966 in response to a rise in government secrecy stemming from the Cold War. Since then, FOIA has provided American journalists, researchers, and everyday citizens access to documents revealing “what their government is up to,” one of the prominent policy purposes underpinning the law, according to a famous FOIA case.
The only, albeit major, catch? FOIA applies to executive branch agencies in the federal government. Departments, like the Department of Agriculture and the Department of Education, are examples of federal agencies that FOIA applies to. Examples of agencies that receive high volumes of FOIA requests include the Department of Homeland Security, the Department of Defense, the Department of Justice, and the Social Security Administration. It does not cover congressional or judiciary records.
What about the president and his offices, as head of the executive branch? Presidential and vice presidential records are not typically subject to FOIA disclosure. Many are protected by the presidential communications privilege, or statutory exemptions. For example, FOIA exempts records related to national security.
But, not all records originating in the White House are shielded from disclosure. FOIA’s definition of “agency” explicitly includes “other establishment[s] in the executive branch of the government (including the Executive Office of the President).” The Executive Office of the President includes the White House Chief of Staff, and other personnel who support the president to make it possible for them to govern effectively. Other offices under the president are also subject to FOIA, like the White House Office of Management and Budget, for example.
What is the relationship between DOGE and FOIA?
DOGE is a bit of an odd one out in terms of its origin and creation. Since the early days, then-presidential-elect Trump has characterized DOGE as a “department.” After all, it’s in the entity’s name.
Shortly after taking office in January, President Trump signed an executive order “establishing and implementing” DOGE. According to White House materials, DOGE’s mission is to make the federal government “more efficient and effective” and reduce its size.
But, DOGE is unlike virtually any other government agencies—a broad term that includes most departments in the U.S. government. That’s because typically agencies are only created by an act of Congress.
Because federal agencies created by congress are all subject to FOIA the public, including journalists and private individuals, can request an agency’s data and information. And assuming it’s not part of a FOIA exemption, people are generally entitled to receive it. But, while people may be entitled to government records, they may still need to pay for it.
This begs a complicated question: What exactly, in legal terms, is DOGE? And is it subject to FOIA at all?
The answer is prickly. Early on, it appeared DOGE might be subject to FOIA. Recently, the Trump administration made an attempt to make the department untouchable by FOIA—namely, it reclassified DOGE as falling under the Executive Office of the President.
The administration claims this reclassification means the records produced by DOGE are now subject to the Presidential Records Act, or PRA. The PRA shields records from disclosure when their sole function is to advise and assist the president. This makes the records exempt from FOIA, shielding many of DOGE’s actions and choices from the public gaze by making its documentation inaccessible.
Several non-profit organizations are already challenging DOGE’s evasion of FOIA. One plaintiff filed a lawsuit challenging the administration’s classification of DOGE records as subject to the PRA. Another plaintiff challenged DOGE’s failure to respond to a public records request within 10-days, as required by FOIA for certain records requests.
How is the DOGE-FOIA question affecting reporters?
CNN’s recent public records request for security clearances of DOGE workers was denied in an email that simply read: “good luck with that.” (Apparently, a number of Office of Personnel Management staffers were fired—which appears to include some of those responsible with replying to FOIA requests like the one CNN submitted.)
Some details about DOGE and its inner workings are getting out through careful reporting and inside sources. However, reporters have limited ways to gather information on subjects like DOGE staffers’ security clearances, and internal messages, without public records requests. And, even if reporters are able to ascertain certain information, public records requests are one of the proven ways to verify accuracy.
With employees who manage FOIA being laid off, and records requests being ignored, there’s just one thing left to do: wait and see. Only time will tell if the courts believe DOGE’s structure makes it subject to the current FOIA and public records framework, or if its records are truly exempt as presidential records and out of reporters’ reach.