Judge Christopher Cooper has granted in part a motion for discovery in Citizens for Responsibility & Ethics in Washington v. U.S. DOGE Service, No. 25-0511 (D.D.C.), perhaps the most prominent case to challenge DOGE’s status of an “agency” under the FOIA. The limited discovery order is intended to allow CREW to gather information about “USD’S influence and operations for purposes of determining whether it is exercising the requisite authority” to qualify as a “agency.”
Although limited jurisdictional discovery is permitted in FOIA cases, it is quite rare. Discovery into DOGE’s organization and operations, however, has been granted in several other ongoing cases involving other laws, such as the Privacy Act. Here, Judge Cooper noted that, contrary to the government’s arguments, the DOGE-related Executive Orders, “far from resolving the question against CREW,” instead suggest “that USDS is exercising substantial independent authority,” and news reports further suggest how that authority is being exercised “across vast areas of the federal government.”
At the same time, the court noted that several topics—such as aspects of DOGE’s record-keeping policies—are not germane to the legal issues at hand in the FOIA litigation. The court will disallow an interrogatory seeking a list of the DOGE Administrators from the start of the current Administration, and will not require disclosure of DOGE visitor logs, but it will require the entity to identify all classified or sensitive information systems its has sought to access. Of note, the court expressed how it was “somewhat baffled” by DOGE’s claim that it does “not own[]” the “@DOGE X account.”
FOIA Advisor will continue to report on this case as it develops.
