Dear Friend of Press Freedom,

I’m Lauren Harper, the first Daniel Ellsberg chair on government secrecy at Freedom of the Press Foundation (FPF), and welcome to “The Classifieds.” Read on to learn more about Marco Rubio’s document burning party, the lingering questions following the Department of Government Efficiency’s Freedom of Information Act ruling, and the rest of this week’s most important secrecy stories.

It’s a document burning party and all of Marco Rubio’s agencies are invited

Erica Y. Carr, the acting executive secretary for the U.S. Agency for International Development, recently ordered agency officials to destroy records. This is not only a clear violation of the Federal Records Act, it also imperils USAID records that may be subject to pending FOIA requests and litigation.

Carr made matters worse by telling the court there was nothing wrong with violating the FRA because the documents were either: 1) classified copies of other agency records; or 2) derivatively-classified information the agency no longer needs.

This is wrong.

The Federal Records Act is clear that agencies are required to treat records they make or receive as federal records and follow pre-approved retention schedules, regardless of their classification (there is an exception for copies of records maintained only for convenience, but that’s not the case Carr makes — or proves — to the court).

There are two types of classification decisions: original and derivative. An original decision is the initial determination that information is classified. A derivative decision happens when an agency employee uses existing classified information in a new way, perhaps by quoting it, paraphrasing it, and so on. These decisions account for the overwhelming majority of classification decisions. To Carr’s point, the classification type has no bearing on a record’s retention requirements.

USAID’s record destruction also puts Marco Rubio in an unprecedented situation. He is:

1) the acting head of an agency that appears to be unlawfully destroying records (USAID)

2) the head of USAID’s successor agency that is responsible for preserving USAID’s records (State Department)

3) the acting head of the agency that’s supposed to investigate unlawful records destruction (the National Archives and Records Administration)

Would Rubio, acting as archivist, investigate his other agency’s behavior (USAID) and refer the matter to the Justice Department if he couldn’t compel USAID to properly preserve the records? It seems unlikely.

DOGE is likely subject to FOIA, but there’s a lot more to the story

District Judge Christopher Cooper recently ruled that DOGE will “likely” have to respond to FOIA requests. This good news comes from a FOIA lawsuit brought by the nonprofit Citizens for Responsibility and Ethics in Washington, which challenged the Trump administration’s claims that DOGE shouldn’t be subject to the transparency law — but red flags are already high in the air.

The government argued during the hearing that, even though DOGE has existed for two months, it would take three years to release the records sought. This is an absolutely staggering level of stalling from a group led by Elon Musk, who famously said there should be no need for FOIA because government records should be transparent by default.

This begs further questions about what staffing levels would be needed to make sure DOGE can respond to FOIA requests in the statutory timeframe. One thing is clear: it needs to get in the habit of hiring and retaining FOIA officers, not the other way around (the Office of Management in Budget, also part of the White House, has already lost 75% of its FOIA staff this year).

New Pentagon Papers resource

Daniel Ellsberg, our co-founder and board member, leaked the Pentagon Papers in 1971. It was a watershed moment in 20th-century American history that led to a landmark Supreme Court ruling on press freedom. We’re happy to share a new resource on the papers and issue a reminder that challenging the government’s classification claims can be an act of patriotism.

Visit our website to check out archival material on, and information about, the Pentagon Papers.

What I’m reading

Army Corps knew Trump order would waste California water, memo shows (The Washington Post). A FOIA request filed by The Washington Post showed that Sierra Nevada reservoir water release earlier this year was a wasteful stunt and that officials knew it wouldn't reach the wildfires in Southern California. Stories like this show how FOIA is critical for scrutinizing government activities and why layoffs at FOIA offices should be a top news story.

DOGE makes its latest errors harder to find (The New York Times). DOGE no longer embeds its source code with information that allows the public to check the accuracy of claims that the department is saving taxpayer money by terminating certain federal grants. DOGE says the change was needed for unspecified security reasons, but the more likely catalyst is that reporters’ fact-checked DOGE’s savings claims and found them wanting.

Thanks for reading, and see you next time.

Transparently yours,

Lauren Harper

Daniel Ellsberg Chair on Government Secrecy
Freedom of the Press Foundation