United States District Court Judge Christopher R. Cooper ruled that the Department of Government Efficiency is subject to FOIA requests. Cooper’s ruling is long, catty, and funny. It comes to the ultimate conclusion that the “[United States Digital Service] is likely covered by FOIA and that the public would be irreparably harmed by an indefinite delay in unearthing the records.”
The court filed the ruling on March 10, and Court Watch published it on March 14. The ruling is part of an ongoing battle between the watchdog group Citizens for Responsibility and Ethics in Washington (CREW), DOGE, and the Office of Management and Budget.
CREW is a non-profit that attempts to hold American democracy accountable “using bold legal action and in-depth investigations.” In December and January, it sent three Freedom of Information Act Requests to the OMB asking about its contact with DOGE and seeking basic information about the new government agency whose official name is the United States Digital Service [USDS].
FOIA requests can take years to drag out of a government agency, but requesters can demand they be processed fast when there’s a strong public interest. “OMB accepted CREW’s requests and agreed to process them on an expedited basis given the public importance of the records sought. USDS, on the other hand, refuses to process CREW’s request to it on the grounds that USDS is not an ‘agency’ subject to FOIA,” the court explained.
Cooper called bullshit on this and ruled that DOGE is, in fact, an “agency.” CREW originally wanted the FOIA requests filled by March 10 so that Congress could have the information before its budget fight. Cooper denied the CREW’s request for the agencies to meet that timeline but did agree that the requests needed to be expedited.
“Finding that USDS is likely covered by FOIA and that the public would be irreparably harmed by an indefinite delay in unearthing the records CREW seeks, the Court will order USDS to process CREW’s request on an expedited timetable and, after receiving proposals on a production schedule, to begin producing documents on a rolling basis as soon as practicable,” Cooper said in his ruling.
Cooper also demanded that both agencies “preserve all records that may be responsive to CREW’s FOIA requests.” He doesn’t exactly trust the people working at DOGE to follow the law in this regard. “This evidence gives rise to the possibility that representatives of the Defendant entities may not fully appreciate their obligations to preserve federal records,” he said. “This is especially true for USDS, many of whose staffers are reported to have joined the federal government only recently and, to put it charitably, may not be steeped in its document retention policies.”
The bulk of the ruling walks through the claim that DOGE isn’t technically an “agency” and therefore not subject to FOIA requests. The FOIA legislation defines an agency as “includ[ing] any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President).”
If DOGE’s sole responsibility was to advise and assist the President, then it could not be hit with a records request. If, however, DOGE has wielded significant authority independent of Trump then FOIA would consider it an agency. Cooper said CREW would likely prove that DOGE was an “agency” and pointed to three stark pieces of evidence.
“First, the relevant executive orders appear to endow USDS with substantial authority independent of the President,” the court documents said. “Second, [Elon] Musk and the President’s public statements indicate that USDS is in fact exercising substantial independent authority,” it said.
Then Cooper started quoting Musk and Trump’s social media posts. When Trump announced DOGE just after the election in a post on X, he said it would have the power to “dismantle Government Bureaucracy, slash excess regulations, cut wasteful expenditures, and restructure Federal Agencies.”
“Musk also took credit for the cuts at USAID, boasting: ‘We spent the weekend feeding USAID into the wood chipper,’” the court pointed out. “These statements and reports suggest that the President and USDS leadership view the department as wielding decision-making authority to make cuts across the federal government.”
The bragging also went to the court’s third point. The EO gave DOGE authority, Musk and Trump had bragged about the authority, and DOGE had demonstrated that authority through concrete actions by shredding USAID and putting thousands of government employees on administrative leave. “The Court need not stretch to conclude that USDS likely drove the charge to shutter USAID, and conducting such mass firings evidently requires substantial authority,” it said.
Cooper’s write-up of the case makes it sound as if DOGE has been recalcitrant during the proceedings. When asked to defend itself before the court, DOGE declined and said that CREW’s arguments fail for “multiple independent reasons” but did not seem to articulate what those were. “USDS cannot escape the consequences of refusing its opportunity to refute any of CREW’s allegations suggesting that USDS is acting with substantial independent authority,” the court said.
“For all these reasons, the Court concludes that USDS likely qualifies as an agency for the purposes of FOIA,” Cooper ruled in the end. He said that getting the documents to Congress before the budget fight wouldn’t matter one way or another, but did acknowledge that getting the records fast was important.
“The rapid pace of USDS’s actions…requires the quick release of information about its structure and activities. That is especially so given the secrecy with which USDS has operated,” he said.
