Don’t Believe DOGE When It Says It Isn’t an Agency — It Is, and That’s Important

The Department of Government Efficiency (DOGE) has, in the months since President Donald Trump ordered its creation, forcefully targeted the federal government, dismantled federal agencies, and forced out unprecedented numbers of federal employees — all while refusing to comply with public records laws designed to ensure the public can hold its government accountable. 

DOGE has claimed that it is not subject to either the Freedom of Information Act (FOIA), which requires federal agencies to make records available to the public and prohibits the destruction of records that have been requested under FOIA, or the Federal Records Act (FRA), which requires agencies to preserve records of information it creates or receives. By “records,” the FRA means all recorded information, regardless of form, including digital communications. That’s why all the recent revelations about top officials’ use of the ephemeral, auto-deleting Signal app to conduct official (and highly sensitive national security-related) government work are so alarming. A healthy democracy depends on the public having access to information about what its leaders are doing, and preventing abuses of power and ensuring our leaders work in the interests of the people they represent depends on them knowing they cannot operate in secret.

But DOGE has been trying to evade those requirements — and accountability — since its formation, claiming that it is not an agency subject to FOIA or the FRA but that it is instead subject to the Presidential Records Act (PRA). The PRA protects a narrower set of documents and gives the president wide discretion over the disposal of records created or received by the president, their staff, or units of the Executive Office of the President (EOP) “whose function is to advise and assist the President.” As American Oversight’s recent lawsuit against DOGE makes clear, its sweeping power and breadth of influence demonstrate that — as a federal judge recently said in a separate lawsuit — DOGE “appears to do much more than advise and assist the President.” Claiming otherwise not only is an attempt by DOGE to dodge its obligations to the American people, it also ignores reality. 

When looking at whether an EOP entity is an “agency” subject to FOIA and the FRA, courts consider the documents and orders used to create the entity as well as the facts on the ground. Our lawsuit details the various executive orders that created DOGE and outlined its functions as well as the history of DOGE’s upheaval of the federal government, demonstrating that DOGE wields substantial power independent from the president — making it an agency subject to FOIA and the FRA.

Trump’s Executive Orders

Trump’s executive order establishing DOGE stated that its purpose is to “implement the President’s DOGE Agenda.” The use of the word “implement” strongly suggests that DOGE’s work goes beyond simply “advising and assisting” the president. That order also required that DOGE teams be installed within every federal agency — a stark difference from entities within the Executive Office of the President that are subject to the PRA.

A second executive order issued on Feb. 11 expanded DOGE’s power, including by prohibiting agencies from filling vacancies “that the DOGE Team Lead assesses should not be filled.” This was followed by a third order on Feb. 26 that directed DOGE to restructure federal payment processes and advise agency heads on which federal contracts should be terminated or modified. 

Entities subject to the PRA do not wield authority independent of the president, but granting DOGE such explicit and sweeping powers — authority to make hiring determinations, to decide how to implement the president’s agenda, and to change contracts and federal payment processes — makes clear that its functions are much larger in scope.

DOGE’s Actions

One need only read the continuous stream of news stories about DOGE’s actions to see just how heavily it has wielded this authority. Within the first few months of the administration, DOGE has moved to effectively shutter the U.S. Agency for International Development (USAID) and the Consumer Financial Protection Bureau and halted payments on federal contracts. Elon Musk, the leader of DOGE, went so far as to email millions of federal employees asking them to explain their accomplishments for the week, with threats of termination if they did not respond. DOGE members also gained access to multiple agencies’ most sensitive computer systems containing private health and taxpayer financial information as well as classified information, which were previously only available to agency employees. 

Lending further proof to the fact that DOGE’s responsibilities extend far beyond advising the president is the sheer range of its actions. DOGE teams have been deployed across the executive branch, and there have been times when the president and senior White House officials were unaware of DOGE actions until they became public, such as with Musk’s infamous “5 things” email. Musk has even boasted on X about DOGE’s power to decimate USAID, and DOGE has directed mass layoffs at several agencies while agency leaders, such as the head of the Social Security Administration, receive and follow DOGE’s instructions. Moreover, the deployment of the same DOGE staffers to different agencies demonstrates that its work is coordinated and centralized.

What This Means for Accountability

Through all these actions, DOGE has been trying to operate in secret. Despite Musk’s laughable claim that DOGE was “the most transparent organization in government ever,” the agency has denied FOIA requests and refused to provide important information about its work or leadership structure. Meanwhile, members of DOGE have been using non-governmental ephemeral messaging platforms like Signal and Mattermost to communicate, thus failing to preserve official records as required thanks to auto-delete settings. Recent news about DOGE’s use of Google Docs for sharing drafts of official documents represents another way of circumventing record-preservation requirements, and a violation of the Federal Records Act, as our recent lawsuit alleges.

In March, following the uproar over top officials’ use of Signal and American Oversight’s related litigation, DOGE released a new records retention policy in our February FOIA lawsuit against the agency. The policy stated that disabling auto-delete would “help with retention and compliance,” but fell short of requiring employees to do so. It also once again claimed that DOGE is subject to records retention obligations under the PRA, not FOIA or the FRA — despite a judge having ruled earlier that month in a lawsuit brought by Citizens for Responsibility and Ethics in Washington that DOGE is likely subject to FOIA. 

DOGE’s status as an agency under FOIA and the FRA isn’t a mere technicality. DOGE’s pervasive power throughout the federal government — and the havoc it is wreaking on Americans’ ability to access vital programs — demands transparency. Its efforts to avoid accountability and oversight of its work by claiming it is limited to “advising and assisting” the president must be challenged. That’s why American Oversight has taken such aggressive legal action: The public is entitled to know more about DOGE’s work, leadership structure, and access to sensitive information, and the people deserve a government that works for them — not one shrouded in secrecy.