It’s the latest update on a lawsuit filed by a nonprofit called Citizens for Responsibility and Ethics in Washington (CREW) that argues DOGE, the initiative that was spearheaded by Tesla CEO Elon Musk, is subject to the Freedom of Information Act (FOIA).
Signed into law in 1966 by President Lyndon B. Johnson, FOIA grants “the public the right to request access to records from any federal agency,” according to the federal government’s website. Johnson said at the time that he hoped the government would, in upholding the law, weigh national security, individual privacy, confidential government deliberations, and the benefit of a well-informed constituency.
Justices have agreed to hear arguments over whether, and to what extent, discovery can proceed for CREW v. DOGE Service. This phase of the legal process allows opposing parties to collect information, including records and depositions, with which to make their cases.
CREW filed an FOIA request seeking expedited processing for information about DOGE on Jan. 24, 2025, seeking insights about its structure and communications with other agencies. When it didn’t receive the documents it requested, the organization sued.
“The fight ultimately in the DOGE case, and what CREW was hoping to test with its litigation, was whether DOGE [is] subject to FOIA,” says Ryan Mulvey, a senior policy counsel at the Americans for Prosperity Foundation.
CREW then pared back its requests for discovery, and the U.S. Court of Appeals for the D.C. Circuit upheld them. The Trump Administration again filed a request to the Supreme Court, arguing that the lower court was not adhering to the previous ruling by granting “wide-ranging and intrusive discovery.”
What could the Supreme Court’s DOGE ruling mean for public access?
The Supreme Court’s ruling will determine if CREW can access the information that could help it make its case that DOGE acted as a federal authority that is subject to FOIA, according to Creighton. If not, the nonprofit may have difficulty pursuing its argument.
The outcome of the case could have implications beyond the current Administration, Creighton says.
The current issue before the Supreme Court pertains to discovery, but Creighton warns that if the Supreme Court ultimately rules that DOGE is not subject to FOIA, that could potentially “open the door for future presidents to create entities inside the Executive Office of the President that do significant work—even potentially work relating to the work of agencies who are usually subject to FOIA—but allow that work to be outside the scope of FOIA.”
“The lower courts have uniformly ruled that CREW is entitled to discovery in this case to help the court determine whether DOGE wields the type of authority that would make it subject to FOIA,” CREW’s chief counsel, Nikhel Sus, told POLITICO in a statement on Tuesday. “We will continue to pursue transparency for the American people, who deserve to know the details of the Trump Administration’s efforts to unilaterally remake the federal government.”
He further claimed that the lower court decision “threatens to burden future presidential administrations” with similar legal cases.
What other records lawsuits has the Trump Administration faced?
The DOGE dispute is among several legal battles over access to, and preservation of, government records under the Trump Administration.
In April, the same group, along with the American Historical Association, sued the Trump Administration over a legal opinion released by the Department of Justice that claimed the Presidential Records Act—which stipulates that presidential records be preserved and transferred to the National Archives when the President leaves office—is unconstitutional. That case is also ongoing.
While those cases remain ongoing, American Oversight has secured a win in another records dispute. In August, a federal judge struck down an Energy Department policy that would have permitted it to close pending FOIA requests filed earlier than Oct. 1, 2024, unless requesters reaffirmed their interest within 30 days. The court sided with the watchdog group.
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