Can DOGE Dodge Transparency Laws?
By Rachel Jones & Frank LoMonte, Am. Bar Assoc., Apr. 28, 2025
Imagine that a new president of the United States tasked the federal Office of Management and Budget (OMB) with identifying $2 trillion worth of federal spending that could be eliminated. Slashing the federal budget by nearly 30 percent would be the biggest news story in America, generating intense public interest, concern, and scrutiny. Predictably, journalists, researchers, and government watchdog organizations would soon be bombarding the OMB with requests under the Freedom of Information Act (FOIA) to determine how the agency intended to carry out such a drastic restructuring of the government.
But what if the same task were instead delegated to a cadre of the president’s most influential supporters, operating as a form of “shadow OMB” outside the confines of traditional government structures? Would open-government laws apply at all to the work of this unconventional “government efficiency” entity?
We may soon find out.
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The Legal Battle for DOGE Transparency
How civil society groups are making the case for public-records access
By Kyle Paoletta, Columbia Journalism Rev., Apr, 28, 2025
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.”
Read more here.
