Last week, employees at the U.S. Agency for International Development noticed the bottom of their emails contained the phrase “sensitive but unclassified.” The warning, which only appeared after the Department of Government Efficiency took control of the agency, is reportedly not visible until after an email is sent. It cannot be deleted and is applied to all USAID emails, whether they contain sensitive information or not.

Indiscriminately applying a “sensitive but unclassified” warning will create an untold number of needless pseudo-secrets and is an abuse of the sensitivity designation, which is legally ambiguous to begin with.

It will also make it harder for the public to obtain information from USAID — and any other agency that might adopt the same secrecy tactic.

USAID officials have reportedly been told not to release information in response to Freedom of Information Act requests if documents are marked sensitive. This is troubling because, even when applied correctly, such a marking is not in and of itself a valid reason to withhold information.

In addition, it heightens concerns that FOIA officers, particularly those at an agency where the threat of layoffs is imminent, will feel pressured to withhold records marked sensitive even if it’s inappropriate.

Another worry is the possibility that DOGE may apply this same tactic at other agencies after gaining access to their email systems.

Why? It’s a move straight out of Elon Musk’s playbook.

SpaceX, an aerospace company owned by Musk, sends emails to federal agencies with the phrase “confidential business information & trade secrets” stamped at the bottom.

Confidential business information may be withheld under FOIA’s Exemption 4, but a private company doesn’t unilaterally get to decide when its information is exempt from release. And even if records do contain confidential business information, a FOIA official can still decide that the public interest in seeing the records outweighs business interests.

As I told The New York Times, SpaceX’s behavior is an “implicit effort to intimidate federal officials in charge of releasing documents” — and Musk must have thought it worked well enough to try something similar with his DOGE team.

It’s critical for FOIA officials and the public to remember that, even if something is correctly labeled sensitive, it’s not a valid reason to withhold information. And if you receive a FOIA denial that cites sensitivity, appeal it.

What’s next?

We are only six weeks into the second Trump administration, and it is impossible to predict how President Donald Trump and DOGE will continue to undermine transparency in the months and years to come.

I’d still like to give it a try.

Here are two records-related fights I think are coming, why they matter, and what we can do to prepare:

DOGE may try to issue memorandums of understanding establishing federal agency records as DOGE records. This would ostensibly turn agency records into presidential records, making it more difficult for the public to see them.

(It’s worth noting that while the administration claims DOGE is subject to the Presidential Records Act, a timely suit filed by the Project on Government Oversight makes it crystal clear that DOGE operates like a federal agency, and its records should be handled accordingly.)

The memorandums of understanding route is not unprecedented; the government maintained in a FOIA lawsuit for the White House visitor logs during the first Trump administration that even though the visitor logs were created by the Secret Service, which is a federal agency, the president maintained control of the records.

This meant the public didn’t know, among other things, who was visiting the Trump White House in the lead-up to the Jan. 6, 2021, attack on the Capitol. It would be bad news if this practice extended to more agencies and covered more kinds of records.

Litigation will be key in determining DOGE’s federal status, as well as ensuring that agency records stay agency records subject to FOIA.

Legislative branch records may be next. So far DOGE has targeted executive branch agencies, but it’s not a given it won’t turn its attention to the legislative branch (it appears to already be testing the waters with the judicial branch).

There are only a handful of legislative branch agencies, including the Government Accountability Office, the Library of Congress, and the Government Publishing Office. But they may be of interest to Trump and Musk.

Why? The GAO and the Congressional Research Service (part of the Library of Congress) each publish critical reporting about how — and how well — the government works. The GPO’s Federal Deposit Library Program makes federal publications available to the public for free.

If the administration is intent on amassing more power for itself and withholding information from the public, as USAID’s “secret but unclassified” tactic implies, it makes sense to censor the legislative branch agencies next.

If the day comes when DOGE knocks on the doors of legislative branch agencies demanding access, members of Congress must overwhelmingly support agency heads in denying it entry.