District Judge Christopher Cooper recently found that the Department of Government Efficiency is “likely covered” by the Freedom of Information Act, and, because it has “substantial authority independent of the President,” cannot hide its records in the Presidential Records Act’s giant loopholes.

This is good news, but it’s not a guarantee DOGE’s records will soon see the light of day.

The government tried to argue it would take three years to respond to the FOIA request, even if they fast-tracked their response. Amazingly, this stall tactic won’t be the biggest obstacle to seeing DOGE’s records.

The ruling

In response to a FOIA lawsuit brought by the nonprofit group Citizens for Responsibility and Ethics in Washington, Cooper noted that “DOGE’s activities are rapidly reshaping the federal government and the public needs to understand what it’s doing.”

Arguing “that the public would be irreparably harmed by an indefinite delay in unearthing the records CREW seeks,” Cooper ruled that the government must provide an estimate of the number of documents responsive to CREW’s FOIA request by March 20, and that both CREW and DOGE must agree to a schedule for the records’ release by March 27.

This all sounds very promising. But it’s still possible DOGE will continue operating with unchecked secrecy. The ruling could be appealed, hampered by inadequate staffing, undermined by the recent firings at the Justice Department’s information policy office, and more.

Unanswered questions

Here are five important questions whose answers could shed light on DOGE’s FOIA future:

1. Will the ruling stand? Cooper’s ruling is preliminary and the government will most likely appeal, and DOGE probably won’t respond to any FOIA requests while the case proceeds.

There are two other FOIA cases against DOGE, one brought by the Project on Government Oversight and the other by American Oversight, which are in their early stages. If the rulings conflict, the cases could be appealed — potentially up to the Supreme Court.

Congress could also weigh in with legislation that explicitly states DOGE is subject to FOIA. The likelihood of a DOGE FOIA bill passing hovers near zero, but even introducing such legislation could show the public that Congress is capable of being proactive. There is also precedent. In 2016, Rep. Jackie Walorski introduced legislation calling for the National Security Council (which, like DOGE, is part of the Executive Office of the President) to be subject to FOIA.

2. How long would it take DOGE to respond to FOIA requests? A lawyer for the government told the court that it would take DOGE three years to respond to CREW’s FOIA request covering two months’ worth of records.

This is a farcical claim from an agency purportedly working to make the government more efficient and that is 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 time frame. One thing is clear: DOGE needs to get in the habit of hiring and retaining FOIA officers, not the other way around (the Office of Management and Budget, also part of the White House, has already lost 75% of its FOIA staff this year).

3. If forced to respond to FOIAs, will DOGE expand its use of pseudo-secrets? After DOGE effectively took control of the U.S. Agency for International Development earlier this year, agency emails started including a “sensitive but unclassified” warning at the bottom, whether the emails were sensitive or not.

FOIA officers at USAID were warned not to release information marked sensitive, even though a sensitivity label alone is not a valid reason to withhold information. Would DOGE use the same unlawful tactic for itself if forced to respond to FOIAs?

4. How will Department of Justice firings impact FOIA compliance at DOGE and across the government? The Trump administration recently sacked DOJ’s head of information policy, which oversees government-wide FOIA compliance. If Cooper’s ruling stands and DOGE must respond to FOIA requests, but DOGE doesn’t hire FOIA staff, and/or inappropriately labels all communications as sensitive and otherwise undermines FOIA, will the DOJ’s information office have the independence or the staff to enforce DOGE’s compliance with FOIA?

Considering the DOJ is supporting the White House’s argument that DOGE shouldn’t be subject to FOIA at all, there’s good reason to worry.

5. What if DOGE destroys its records or records of the agencies it has accessed? If an agency is unlawfully destroying records, the National Archives is supposed to investigate and try to restore the records. Marco Rubio is currently both the acting archivist and the acting head of USAID, which is currently unlawfully destroying its records — and Rubio appears disinclined to stop the destruction in either capacity.

If DOGE follows suit and destroys its records or other agency records it has access to, would Rubio, in his role as acting archivist, investigate and possibly refer the matter to the DOJ?

Cooper’s FOIA ruling is a good sign that the public may have a way to hold DOGE accountable, but it’s not a guaranteed outcome. Even if the recent ruling stands, we will have to keep a close eye on the myriad of ways DOGE could continue to evade public scrutiny, whether it's by exploiting existing government-wide problems with FOIA, or by taking advantage of a diminished National Archives.