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Back in November, Elon Musk professed his abiding belief in open government. “There should be no need for FOIA requests. All government data should be default public for maximum transparency,” he tweeted.
“We post our actions to the DOGE handle on X and to the DOGE website,” he boasted in the Oval Office last month as his young child wandered randomly around the room full of reporters. “I don’t know of a case where an organization has been more transparent than the DOGE organization.”
That was a lie.
At that time, the DOGE website had virtually no information on it. And DOGE’s public pronouncements are often either mathematically impossible, or, like the $50 million “condoms for Gaza” claim, simply false. In fact, DOGE staffers have taken great pains to obscure their identities, with Musk calling it a crime to dox them. The agency even spent a month refusing to say in court or anywhere else who the DOGE administrator was.
As a practical matter, this makes it impossible for the public to see what DOGE is doing. From a legal standpoint, it allows the administration to take a strategically ambiguous stance in hopes of shielding DOGE from judicial interference.
But the jello against the wall strategy has largely failed in court, and Monday a federal judge ordered DOGE to pony up and begin complying with a Freedom of Information Act (FOIA) request filed by Citizens for Responsibility and Ethics in Washington (CREW).
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An agency by any other name …
While Elon Musk was preaching the gospel of transparency, the Trump administration was taking deliberate steps to hide what DOGE was doing. Specifically, Trump signed an executive order inserting DOGE into the skin of an existing agency, the United States Digital Service, and then redesignating it as part of the Executive Office of the President (EOP).
The order specified that DOGE is not a federal agency, a legal distinction which turns out to be critical in at least three pending lawsuits. Because if DOGE is not an agency, then it doesn’t have to comply with federal records laws or have its leader confirmed by the Senate. But only an agency can claim authority to shut down great swathes of the federal bureaucracy — something Musk brags about doing on the daily. And so the Justice Department has tried to situate itself in the cut, arguing that DOGE is simply an “instrumentality” of the president.
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In a case called AFL v. Department of Labor, a consortium of labor unions sued to block DOGE personnel from rifling through sensitive personal and financial information on the DOL’s servers. They argued that, if DOGE is not itself an agency, then it can neither park employees at agencies under the Economy Act of 1932 nor access sensitive government records under the Privacy Act of 1974.
Judge John Bates denied the unions’ request to lock DOGE out of the database, ruling that entity was pretty clearly an agency since it’s engaged in a wholesale reshaping of the federal government.
“[P]laintiffs have not shown a substantial likelihood that USDS is not an agency,” he wrote, adding that “it follows that plaintiffs have not shown a substantial likelihood on the merits of their Privacy Act claim, for without the argument that USDS employees may not be detailed under the Economy Act, the Privacy Act claim all but disappears.”
But he called out the government for its “desire to escape the obligations that accompany agencyhood — subjection to FOIA, the Privacy Act, the APA [Administrative Procedures Act], and the like — while reaping only its benefits.”
“And so USDS becomes, on defendants’ view, a Goldilocks entity: not an agency when it is burdensome but an agency when it is convenient,” the judge observed drily.
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