Can DOGE Dodge Transparency Laws?

But what if the same task were instead delegated to a cadre of the president’s most influential supporters, operating as a form of “shadow OMB” outside the confines of traditional government structures? Would open-government laws apply at all to the work of this unconventional “government efficiency” entity?

We may soon find out.

Concerns about the transparency (or lack of it) surrounding DOGE—President Donald Trump’s newly created “Department of Government Efficiency”—raise broader questions about whether federal access laws are adequate to meet twenty-first-century information needs, with important governmental functions increasingly being performed by nontraditional entities that seem structured to evade public scrutiny. How the courts resolve the impending legal challenges about whether DOGE is subject to federal transparency laws will say quite a bit about whether future presidents can frustrate public oversight by tasking-off core governmental functions to unconventional “shadow government” entities.

This article uses the case study of DOGE to discuss how requesters can—and, sometimes, cannot—gain access to the records of agencies attached to the White House, leveraging a variety of legal theories.

Dawn of the DOGE

Just days after the November 2024 election, President-elect Trump announced that business executives Elon Musk and Vivek Ramaswamy would lead a newly created entity known as DOGE during Trump’s second stint in office. DOGE, an acronym that is an apparent nod to the dog-themed cryptocurrency that Musk promotes, was created to “dismantle Government Bureaucracy, slash excess regulations, cut wasteful expenditures, and restructure Federal Agencies.”

To do this, Trump initially said that DOGE would provide advice and guidance “from outside of Government, and will partner with the White House and Office of Management & Budget.” However, this newly created entity’s “outsider” status did not last. Indeed, Musk is reported to have an office in the Eisenhower Executive Office Building, which is adjacent to the White House (and where he is reputed to have been sleeping).

Details regarding how exactly DOGE will function are emerging by the day. On Jan. 20, 2025, President Trump signed an executive order titled “Establishing and Implementing the President’s ‘Department of Government Efficiency,’” which formally established DOGE with the stated purpose “to implement the President’s DOGE Agenda, by modernizing Federal technology and software to maximize governmental efficiency and productivity.”

DOGE is essentially stepping into the footprint of a preexisting government entity, the U.S. Digital Service (USDS), that resides within the Executive Office of the President. As to DOGE’s organization, the entity is to be run by an administrator in the Executive Office of the President who reports to the White House chief of staff. The order also creates an entity known as “the U.S. DOGE Service Temporary Organization,” headed by the USDS administrator and dedicated “to advancing the President’s 18-month DOGE agenda.” The U.S. DOGE Temporary Organization terminates on July 4, 2026.

The Executive Order also creates “DOGE Teams.” These teams consist of four DOGE employees, “which may include Special Government Employees, hired or assigned within thirty days of the date of this Order,” which agency heads shall select in consultation with the USDS administrator. Each DOGE Team is intended to include one “DOGE Team Lead,” one engineer, one human resources specialist, and one attorney, and is assigned to advise agency heads on implementing the DOGE agenda. Last, the order tasks the USDS administrator with overseeing a program to modernize federal computer software and infrastructure.

Almost instantly, consequential decisions attributed to DOGE began surfacing across Washington. A top administrator at the U.S. Agency for International Development (USAID) told employees that DOGE instructed him to immediately terminate a raft of employees without going through normal due-process channels for removals. The official, who headed labor relations for USAID, said he was then placed on administrative leave. It is unclear how a newly created entity without any congressional mandate—or even a named appointee as its director—would have the authority to make binding personnel decisions within federal agencies. But then, much is unclear about DOGE.

After an initial spate of publicity suggesting that DOGE would operate entirely outside the boundaries of government as an external advisory body, the Trump executive order made a sharp turn in the opposite direction. One notable choice was classifying the employees—including Musk—as special government employees. That designation requires the filing of financial disclosure forms and would bar DOGE employees from participating in official matters in which they, their families, or their organizations have a financial interest.

If Musk surrounds himself with other executives from within his many companies, they predictably may hesitate to file demanding financial disclosure forms and be barred from participating in official matters in which they have financial interests. Whether the Trump administration will enforce these requirements for special government employees remains to be seen.

With a charge to dismantle bureaucracy, slash regulations, cut spending, and restructure federal agencies—and with Speaker Mike Johnson pledging congressional support—DOGE bears all the indicators of being a powerful government agency. And powerful government agencies are normally governed by transparency laws for obvious reasons: because the public has an interest in seeing how government money is allocated and policies are formulated. Unfortunately, the fact that a federal entity has great influence over spending and policy decisions does not always automatically trigger a legal duty to be transparent.

FOIA and Quasi-Governmental Entities

Every state and the federal government maintain freedom of information laws that entitle the public to inspect and copy records created or maintained by the government that memorialize governmental activities. The laws vary somewhat in their scope and mechanics, but their foundational purpose is the same: to enable the public to have well-informed oversight over and input into government operations.

Under many state Freedom of Information (FOI) laws, the duty to disclose records extends beyond government agencies to private entities acting as an arm or extension of the state. In Florida, when a private entity acts “on behalf of” a government agency—such as a nonprofit organization that contracts to operate a hospital built with public money—that organization becomes subject to the Florida Public Records Act. Ohio recognizes that a nominally private entity can become a “public office” covered by the Ohio Public Records Law if it receives substantial taxpayer funding and performs a traditionally governmental service, such as fire protection.

In Michigan, an otherwise private organization becomes subject to state FOI law if it is “primarily funded by” taxpayer money. In a case involving a privatized association regulating high school sports, the Illinois Supreme Court explained that interpreting FOI laws to reach private organizations performing governmental duties “ensures that governmental entities must not be permitted to avoid their disclosure obligations by contractually delegating their responsibility to a private entity.”

As these cases illustrate, state FOI laws typically value function over form, enabling the public to monitor government activity regardless of who holds the records.

But federal FOIA is not so expansive. Time and again, courts have refused to extend the reach of FOIA to entities that do not fit the textbook understanding of a government “agency,” even when they are staffed by federal employees, carry out governmental functions, and exert influence over government policymaking. For instance, even though a presidential transition team carries many indicators of being “governmental,” including federal funding, its records have been deemed beyond the reach of FOIA because it is not regarded as performing “governmental” duties.

By FOIA’s terms, only an “agency” must comply with requests for records. FOIA defines an “agency” as “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), or any independent regulatory agency.”

Although the president’s office was explicitly made subject to FOIA, courts have inferred that Congress intended to exclude “immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President.” The judiciary’s reluctance to apply FOIA to purely “advisory” communications to the president figured prominently in the Supreme Court’s 1980 decision exempting correspondence Henry Kissinger sent to President Richard Nixon during his tenure as Nixon’s national security adviser.

In a 1971 decision, Soucie v. David, the D.C. Circuit coined an influential standard for determining whether a body attached to the EOP qualifies as an “agency” for FOIA purposes. In considering whether the White House Office of Science and Technology constitutes a statutory “agency,” the court drew a distinction between entities with “substantial independent authority in the exercise of specific functions” (which are subject to FOIA) versus entities whose “sole function [is] to advise and assist the President” (which are not).

Applying that standard, the judges decided that the science office qualifies as a FOIA “agency” because it does not merely advise the president but also exercises some autonomous authority, delegated by Congress, to evaluate federal programs.

Two post-Soucie rulings are especially instructive in assessing what it would take for a novel entity like DOGE to constitute an “agency” obligated to honor FOIA requests. In 1978, the D.C. Circuit decided that the OMB is subject to FOIA because it carries out substantive duties assigned by Congress beyond just advising the president, including preparing a budget. But a 1985 ruling concluded that FOIA does not apply to records of the White House Council of Economic Advisers because each of the council’s statutorily assigned duties is couched purely in terms of making recommendations to the president. The question, then, is likely to be whether DOGE looks and acts more like the OMB or the Council of Economic Advisers.

Meyer v. Bush: The DOGE of the ’80s?

Like President Trump, President Ronald Reagan entered his 1981 term with the desire to reduce regulatory burdens on the economy. As a result, Reagan created a cabinet-level Task Force on Regulatory Relief (Task Force). The Task Force included the vice president; the Attorney General; the secretaries of the Treasury, Commerce, and Labor Departments; the director of the OMB; the chairman of the Council of Economic Advisers; and the President’s Assistant for Policy Planning. Their directive was to review pending regulations, study past regulations with an eye toward revising them, and recommend appropriate legislative remedies.

After creating the Task Force, Reagan enacted Executive Order 12,291, which detailed the procedures for developing regulations and required agencies to use cost/benefit analysis when making decisions. The Executive Order required agencies to issue a “Regulatory Impact Analysis” (RIA) for any regulations that have a significant effect on the economy, which were defined as “major rules.” The Executive Order also authorized OMB—“subject to Task Force Guidance”—to provide policy advice, require agencies to seek interagency coordination, and even delay regulatory proposals.

After its initial term from 1981 to 1983 and in its final report, the Task Force stated that it had designated 119 of the most questionable existing rules and regulatory programs for high-priority agency consideration. Of the 119, the Reagan administration eventually revised or eliminated 76, and took preliminary or partial steps to change 27 others.

In 1988, Katherine Meyer submitted a FOIA request for documents held by the Task Force, Vice President George Bush, or any other member of the Task Force, including reports concerning the accomplishments of the Task Force and reports listing or identifying the regulations that the Task Force reviewed. In response, OMB released only the documents in its files that had been previously made public, objecting to the other requests on the grounds that neither the vice president nor the Task Force are agencies under FOIA. Meyer then sued to compel production of the files.

On the government’s summary judgment motion, the district court held that the documents were Task Force documents, not the vice president’s, and that the Task Force was an agency subject to FOIA because the Task Force was not formed simply to advise and assist the president, but rather “had substantial, independent, directorial authority.” This decision was then appealed to the D.C. Circuit.

The D.C. Circuit, however, did not agree that the Task Force was an agency under FOIA. The operative question in this case was whether the Task Force was “substantially independent” or was its function “solely to advise and assist” the president. The former would open the Task Force up to FOIA requests, while the latter would not. The D.C. Circuit outlined three factors to weigh when answering such a question: (1) proximity to the president, meaning whether there is continuing interaction; (2) the nature of the delegation from the president, with the greater the scope of the delegation weighing in favor of the entity being an agency; and (3) whether the entity has a self-contained structure, with having an independent staff weighing in favor of being an agency. Because the Task Force did not have the power to give directions to the executive branch and did not have a separate staff, the D.C. Circuit found the Task Force to be more akin to White House staffers, as opposed to an agency with substantial independent authority.

Meyer has proven an influential precedent enabling the White House to withhold records of advisory bodies. For instance, the Biden White House successfully rebuffed FOIA requests for records created by its National Climate Task Force. Citing Meyer, the court concluded that the task force—made up entirely of White House staffers and executive agency heads appointed by executive order—did not have the “substantial authority independent of the President” to qualify as an “agency.” In an analysis that might echo in future FOIA litigation involving DOGE, the court explained:

Only where the entity has a mandate to do more than advise or coordinate does that entity wield substantial authority independent of the President. . . . The National Climate Task Force does not support Congress, issue binding regulations to any party, or perform any function apart from advising and assisting the President. The Executive Order . . . requires executive branch agencies to provide various reports, plans, and appraisals to the Task Force, but it does not empower the Task Force to conduct its own formal evaluations, or take any concrete steps with regard to what it receives.

These are the types of indicia to which a future court might look in assessing the status of DOGE: Does it have a mandate to do more than advise or coordinate? Was it empowered to support Congress, to conduct formal evaluations, or to take any other action beyond purely advising the president?

The more that DOGE appears to be exercising actual operational control over other federal agencies—as opposed to merely advising the president—the stronger the argument for FOIA access becomes. This is one reason that the reported removals of USAID employees at the direction of DOGE takes on potential legal significance: If DOGE—whatever it is, and whoever is running it—has actual hiring-and-firing authority over federal workers, then it is no longer “advisory” and arguably should be within the reach of FOIA requests.

Reports are emerging on a near-daily basis of federal employees’ interactions with representatives of DOGE who appear to be empowered to give orders directly to the agencies, not just to give advice. For instance, it was DOGE—not the White House or the Secretary of Education’s office—that announced Feb. 11 that contracts totaling more than $900 million at the Department of Education had been canceled, leaving every outward impression that DOGE is actually making decisions that are treated as more than mere advice.

On the other hand, DOGE is (so far, at least) entirely a creation of executive order as opposed to the OMB and the Office of Science and Technology, which were at issue in the aforementioned Andrus and Soucie cases and which operated under a grant of authority from Congress. Proponents of secrecy likely will attempt to distinguish DOGE from these other White House entities by pointing to DOGE’s lack of legislatively delegated authority. This argument, however, is somewhat question-begging because DOGE arguably is exercising OMB’s powers without OMB’s congressional authorization, raising the issue: Can an entity behave like an “agency” but avoid being characterized as one for FOIA purposes?

Perhaps unwittingly, President Trump gave ammunition to those fighting for access to records of DOGE by signing a second Executive Order on Feb. 11, 2025, that very much appears to vest the Musk-led entity with the power to do far more than give advice. The order directs each agency to coordinate a comprehensive personnel-reduction strategy through DOGE, and—in an especially important passage—invests DOGE with the ability to veto agency hires, with only the head of the agency empowered to override the veto. (The operative subsection of the Executive Order is revealingly titled “Hiring Approval” and not “Hiring Advice.”)

DOGE’s murky mandate will require close scrutiny as federal courts are asked to decide on its FOIA status. Nothing in the original Executive Order creating DOGE says, in so many words, that DOGE can issue binding orders instructing agencies to fire workers. Nor did the predecessor USDS have command over other agencies; it was set up under the Obama administration to bring in short-term expertise from the private sector to advise agencies with computer technology problems. So the question may become how to treat a neither-fish-nor-fowl entity that purports to have nothing beyond advisory authority but, in practice, has significantly more.

This question may soon be answered. On Feb. 11, 2025, American Oversight, a nonprofit organization committed to promoting transparency in government, filed a lawsuit against DOGE, OMB, and related entities challenging their failure to respond promptly to two FOIA requests. American Oversight alleges that DOGE, USDS, and U.S. DOGE Temporary Organization are all “agenc[ies] of the federal government,” and specifically that DOGE “does more than merely advise and assist the President” but instead “wields substantial authority independently of the President” and thus must answer FOIA requests.

The dispute arises from American Oversight’s Jan. 30, 2025, FOIA request in response to the president’s removal of 17 agency inspectors general. The organization sought records sent or received by Elon Musk or anyone on Musk’s staff containing one or more keywords relating to the firings. The same day, American Oversight submitted a separate FOIA request to USDS and OMB seeking correspondence, notes, and other documents memorializing communications between DOGE representatives and specified members of Congress or congressional committee staff.

American Oversight requested expedited processing of its FOIA requests because of the “urgency to inform the public about an actual or alleged Federal Government activity” and the fact that the terminations constitute a “matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity that affect public confidence,” in keeping with the expedited processing standards set forth in 28 C.F.R. § 16.5.

OMB acknowledged receipt of both FOIA requests by email but—as of the date of the lawsuit—did not produce records or otherwise respond substantively. Because there was no substantive response, American Oversight asked a federal district judge to order the government to process the FOIA requests on an expedited basis, conduct a search reasonably calculated to uncover all responsive records, and award American Oversight its costs and fees. The judge’s disposition of the case will be telling as to how the courts are likely to treat DOGE and its affiliated entities for FOIA purposes.

A Presidential Secrecy Blanket

Perhaps indicating awareness that DOGE is susceptible to FOIA requests as initially configured, the entity reportedly has sought to distance itself from the OMB and clarify that its line of reporting goes directly to the Executive Office of the President. If it is perceived as an extension of the president, then DOGE arguably will be positioned to take advantage of yet another federal statute, the Presidential Records Act (PRA), to argue that it is impervious to FOIA requests. That is the position advanced by the presidentially appointed spokeswoman for DOGE, who asserted in a Feb. 5, 2025, social media post that the entity is “subject to Presidential Records.” Under the PRA, once a document is categorized as a “presidential record,” it is off-limits to FOIA access until at least five years after the end of the presidential term.

The PRA defines covered records as “documentary materials, or any reasonably segregable portion thereof, created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President, in the course of conducting activities which relate to or have an effect upon the carrying out of the constitutional, statutory, or other official or ceremonial duties of the President.”

Courts have explained that the set of records subject to FOIA and the set of records subject to the PRA are mutually exclusive; that is, if a record meets FOIA’s definition of an “agency record,” then it necessarily cannot be a PRA record. But it is difficult to mount a challenge to the White House’s decision to categorize a record as a presidential record because the D.C. Circuit has read the Act’s legislative history to suggest that judicial review is precluded.

Further, there may be no private right of action to compel compliance with the Act, leaving the White House more or less on the honor system—although courts have left open the possibility that mandamus jurisdiction exists to seek to compel the president to comply with a clearly established legal duty under the PRA.

Perhaps ironically, if DOGE succeeds at positioning itself as an extension of the presidency for purposes of the Presidential Records Act, that status will trigger an enhanced set of records-retention obligations. Once a record is “presidential,” it is public property and cannot be destroyed without consultation with the government’s records custodian, the National Archives, which can designate the record for permanent preservation. That is more forceful than the law governing ordinary government records, which leaves considerable discretion to each employee to decide which records must be archived and which are merely “transitory”—meaning they may be purged freely after as little as 180 days.

Trump is painfully aware of these obligations, having run afoul of the Archives in what led to his (now discontinued) federal prosecution for failing to surrender classified documents stored at his Florida home. So, although few (if any) records may be accessible in the immediate term, the PRA provides that, eventually, interested parties should be able to see quite a lot of them.

Freedom of Information Beyond FOIA

When the government sets up a body of advisers that includes at least some nonfederal employees, the group may fall within the strictures of the Federal Advisory Committee Act (FACA), which carries its own transparency obligations. FACA defines an advisory committee as:

[A] committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof … that is established or utilized to obtain advice or recommendations for the President or one or more agencies or officers of the Federal Government and that is—

(i) established by statute or reorganization plan;
(ii) established or utilized by the President; or
(iii) established or utilized by one or more agencies.

A presidential advisory committee is further defined as “an advisory committee that advises the President.”

Once an entity is defined as an advisory committee, certain transparency obligations arise. The advisory committee must open all meetings to the public and provide timely notice of all public meetings in the Federal Register, and interested persons must be permitted to attend, appear before, or file statements with the advisory committee. Records, reports, transcripts, studies, or other documents made available to or prepared by the advisory committee must be made available for public inspection and copying. Last, detailed minutes must be kept of each advisory committee meeting and contain the names of the people present, a complete and accurate description of matters discussed and conclusions reached, and copies of all reports received, issued, or approved by the advisory committee.

Considering that most DOGE actions so far have not been uncovered until after they have been implemented, it is unlikely that DOGE would welcome such openness in their meetings, allowing the press to sound the alarms of incoming changes before they occur.

FACA also contains provisions to uphold the integrity and independence of advisory committees. An advisory committee must be fairly balanced in terms of the points of view represented and the functions to be performed by the committee. There must be appropriate provisions to assure that the advice and recommendations of the advisory committee will not be inappropriately influenced by the appointing authority or any special interest but instead will result from the advisory committee’s independentjudgment.

Given that DOGE has a sharply ideological agenda and that its personnel appear to be handpicked by Musk, it is unlikely that the makeup of DOGE is “fairly balanced in terms of the points of view represented.” Trump has insisted that Musk does nothing without his approval—hardly indicative of the autonomy that FACA suggests advisory bodies should have. So, if DOGE is subject to FACA, it is almost certainly noncompliant in multiple respects.

A requester seeking to invoke FACA to access DOGE records would face substantial hurdles. First, it must be shown that DOGE qualifies as a federal advisory “committee” instead of just a free-floating handful of advisers. A group is an FACA advisory committee “when it is asked to render advice or recommendations, as a group, and not as a collection of individuals. The group’s activities are expected to, and appear to, benefit from the interaction among the members both internally and externally.”

In other words, FACA envisions the traditional understanding of a “committee,” with members sitting around a table deliberating as peers in a collective body. Although the internal workings of DOGE are unclear, it appears at this point to be what the statute characterizes as a “collection of individuals” acting individually rather than by deliberating and voting. If DOGE does not satisfy the threshold definition of being a “committee,” then it likely will not be subject to FACA, regardless of whether it has functions and responsibilities that seem FACA-like.

These arguments, too, will soon be tested in court. Within minutes of Trump’s inauguration, the administration was sued for failing to operate DOGE in accordance with FACA requirements, including failing to give notice of meetings and publish minutes of proceedings.

At least three lawsuits have been filed against DOGE thus far, and there are striking similarities between the three. All three allege that DOGE is an advisory committee because it is a committee established or utilized by President Trump to obtain advice or recommendations for the president or one or more agencies. All three complaints also allege that DOGE has failed to meet the transparency requirements laid out by FACA, as well as the requirement that advisory committees be fairly balanced in terms of the points of view represented.

The complaints, with some differences between them, request that the court enjoin DOGE from meeting and advising agencies either permanently or until DOGE complies with FACA’s requirements. With at least one complaint requesting the court to expedite the action, we might get a preliminary answer sooner rather than later as to whether DOGE is an advisory committee subject to FACA.

The lawsuits, however, predate Trump’s Jan. 20 executive order, and there are suspicions that the White House mindfully tailored the order to strengthen the case that DOGE does not qualify as a federal advisory committee. An advisory committee typically consists of both internal and external advisers. Indeed, the D.C. Circuit has said that FACA ceases to apply if a committee is “composed wholly of full-time, or permanent part-time, officers or employees of the Federal Government.”

The executive order suggests that DOGE will consist entirely of federal employees, and—after several weeks of obfuscation—the White House confirmed that Musk will carry the mantle of a special government employee. This designation significantly undercuts the argument that DOGE qualifies as an advisory committee since—from outward appearances, at least—all of its principals are some type of federal employee.

However, at least some DOGE activities have been carried out by people who hold executive positions in Musk-owned businesses, including engineer Steve Davis, a longtime Musk lieutenant across multiple corporations, who is reportedly in charge of hiring for DOGE and whose status with the federal government is unclear.

If it turns out that Musk is tapping government outsiders from his business circles to carry out the work of DOGE alongside federal employees, then the chances of prying open DOGE’s doors by way of FACA will improve considerably.

The “Deliberative” Dodge

Perhaps the most widely reviled of FOIA’s nine statutory exemptions is Exemption 5, which enables agencies to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” This “deliberative process” exemption empowers government officials to conceal internal communications that shed light on how they reached decisions, seemingly irreconcilable with FOIA’s foundational purpose of illuminating the policymaking process.

The secrecy of “deliberative” documents is rationalized by the need for policymakers to elicit candid advice from the subject-matter experts within their agencies, who might self-censor anticipating that their communications will be publicly disseminated.

This simplistic rationalization, of course, overlooks compelling countervailing arguments for disclosure: That employees already know that any electronic communication is subject to unlimited forwarding or leaking and act accordingly; that employees may be more candid knowing that their advice is subject to fact-checking by outside experts; that the public has an overriding need to know whether policymakers are in fact adhering to the best expert guidance or ignoring it; and so on. But Exemption 5 remains on the books as a widely invoked—and broadly interpreted—impediment to transparency.

Even if a requester could surmount other FOIA impediments, Exemption 5 stands as a final, and potentially insurmountable, obstacle to obtaining communications within DOGE or between DOGE and other federal entities. Although the statutory exemption speaks only to correspondence within or among federal agencies, courts have given the exemption an expansive interpretation unmoored to the statute’s text: Even correspondence between agency employees and external consultants can sometimes be withheld.

Predictably, DOGE—and the agency it has been tasked with assisting, OMB—would argue that any “predecisional” communications among DOGE representatives, or between DOGE and OMB, qualify for exclusion as “deliberative.”

Additionally, the Supreme Court has recognized within Exemption 5 a privilege for presidential documents that shields communications “made in the process of shaping policies and making decisions.” Subsequently, lower courts have expanded the privilege to cover communications to and from senior White House advisers created “in the course of gathering information and preparing recommendations on official matters for presentation to the President.”

The privilege is broadly interpreted to include not just “predecisional” documents but all documents that memorialize the president’s decision-making process, even post-decisional ones.

Once again, DOGE’s unique structure makes it impossible to neatly analogize to other governmental entities. According to the job description set forth in the Executive Order, the teams of DOGE employees embedded within executive-branch agencies do not seem to be operating as traditional White House advisers working alongside the president.

By the terms of the Executive Order, the “DOGE Team” experts are tasked with advising the heads of the agencies to which they are assigned, not advising the president. Consequently, the case for extending a “presidential decision-making” privilege to the work of agency-level DOGE employees would seem implausible.

Conclusion

With each passing day, DOGE looks more like a federal agency that should be subject to FOIA. As more news comes out as to DOGE’s actions, there are indicators to watch for as the organization’s work takes shape. Notably, Musk has tweeted several times about the importance of government transparency and even pledged to put DOGE’s documents online.

Ideally, we will never have to rely on the courts to decide whether the law compels DOGE to disclose its records because the records will be voluntarily published as a best practice—a practice that all government agencies would do well to emulate.

That an agency could exert significant policymaking authority and yet elude coverage within the scope of federal transparency laws points to a larger problem with the limited reach of those laws. As more and more governmental functions are offloaded onto private contractors and advisers, FOI laws will need thorough updating to fulfill their purpose of enabling citizens to keep watch over “what their government is up to.”