Demanding Transparency from DOGE (In re U.S. DOGE Service U.S. Supreme Court brief)
At a Glance
To avoid discovery, the government argues DOGE is not an agency subject to FOIA. On behalf of government transparency scholars, Campaign Legal Center (CLC) submitted a Supreme Court brief arguing courts should look at what DOGE is actually doing to determine whether FOIA applies, instead of relying on the government’s own representations.
Back to topAbout this Case
Citizens for Responsibility in Ethics (CREW) filed a lawsuit demanding that DOGE answer its Freedom of Information Act (FOIA) requests. The U.S. District Court for the District of Columbia ordered DOGE to respond to discovery to help determine whether DOGE is an agency covered by FOIA.
DOGE has now appealed those orders to the U.S. Supreme Court. DOGE is arguing courts may only rely on executive orders that establish part of the Executive Office of the President to determine whether DOGE — or any other government entity established by the executive branch — is subject to FOIA.
CLC has joined the case with an amicus (or friend-of-the-court) brief representing government transparency professors whose research, teaching and writing focus on information and transparency law.
CLC’s brief argues that the history of FOIA does not require courts to simply accept the government’s assessment of what is or is not an agency for purposes of FOIA, and how adopting such a rule would permit the government to evade the public’s right to transparency.
What’s At Stake?
The government cannot decide for itself if it’s subject to FOIA or not. A legal test like this would undermine the purpose of FOIA and other transparency laws.
This transparency law has historically been applied on the basis of a government entity’s activities, not just on what the government says.
Accepting the government’s interpretation would allow and incentivize presidents to create more entities similar to DOGE that can operate within a black box and avoid transparency laws.