Our Lawsuit Prompted a New Policy from DOGE — But Major Concerns Remain About the Administration’s Preservation of Government Records

Last week, the so-called Department of Government Efficiency (DOGE) unveiled a newly created records retention policy, just days after American Oversight asked a court to order DOGE to preserve certain records and while the administration was under intense scrutiny, including by American Oversight, for its use of the encrypted messaging platform Signal. 

The policy, dated March 25, was released to American Oversight in our Freedom of Information Act (FOIA) lawsuit against DOGE, which seeks to force transparency about DOGE’s work and that of Elon Musk, President Trump’s chosen leader of the agency. Under the newly created policy, DOGE employees must “capture and transmit” onto their work devices records of any work-related messages received on personal devices — including through Signal. The policy also states that “disabling auto-delete features on any such messaging services will help with retention and compliance,” though it stops short of requiring employees to do so.

DOGE’s Efforts to Dodge Federal Records Act Requirements

Our lawsuit argues that DOGE is an agency subject to FOIA and the Federal Records Act (FRA). The March 25 guidance claims DOGE is “subject to certain records retention obligations under the Presidential Records Act (PRA),” echoing claims DOGE made to us last month, just two days after a federal judge had ruled DOGE is likely subject to FOIA. This posture means DOGE’s records are in danger of being deleted or destroyed, leading American Oversight to file a motion seeking a court order to preserve DOGE records potentially responsive to the FOIA requests at issue in our lawsuit.

The PRA protects a narrower set of documents than the FRA does and gives the president wide discretion over the disposal of presidential records — discretion that is not subject to judicial review. Moreover, whereas FOIA requires agencies to release records promptly following a request, under the PRA, the earliest the public might see DOGE’s records is 2034, five years after Trump leaves office and eight years after at least part of DOGE is set to disband. And we might never see the records at all. Government agencies, however, are subject to FOIA and the FRA, which each come with records preservation requirements, and American Oversight’s lawsuit and motion for a preservation order demonstrate that the immense scope of DOGE’s activities easily satisfies the test of whether it is an agency. 

The Trump Administration’s Use of Non-Governmental Communications

The lawsuit also alleges that DOGE members have used ephemeral and non-governmental messaging platforms such as Signal to communicate about official matters since at least December, likely resulting in the destruction of federal records, including those potentially included in American Oversight’s requests. The scandal that broke last week — in which top national security officials were using Signal for classified discussions about military strikes in Yemen, with at least some of the messages having been set to auto-delete — was a startling indication of how potentially widespread the problem of proper records retention is within an administration that has exhibited a profound disdain for transparency and accountability. On Tuesday, American Oversight launched an investigation into the administration’s use of the app.

Also on Tuesday, the Washington Post reported that members of Trump’s National Security Council (NSC) had conducted official government business over personal Gmail accounts. This includes National Security Adviser Michael Waltz, who had initiated the Yemen group chat, set messages to auto-delete, and apparently mistakenly included Atlantic editor Jeffrey Goldberg on it. According to an NSC spokesperson quoted in the Post story, Waltz “makes sure to ‘cc’ his government email to ensure compliance with federal records laws.” But major concerns about security remain, in addition to those about whether top Trump officials are conducting work in accordance with laws designed to protect the public’s ability to hold them accountable.

Shining a Light on DOGE’s Work

The outsized influence DOGE has wielded during the last two months has made the need for more information about its work especially urgent. DOGE has forcefully targeted the federal government, dismantling federal agencies, threatening core services, and dismissing swaths of federal employees — some of whom were reinstated following public backlash, court orders, or even late realizations that some dismissed employees filled critical health or national security positions. Still, much of DOGE’s work remains obscured, from its true leadership to its potential involvement in Trump’s firings of inspectors general. 

Our lawsuit against DOGE cites eight FOIA requests for records from DOGE and Musk that have so far gone unanswered, including for Musk’s calendars and communication records since Trump’s inauguration. We are also seeking records detailing Musk’s employment, official job title, and salary at DOGE, and information about the structure and staffing of the U.S. Digital Service before Trump reorganized it to house DOGE — a move made in an apparent attempt to evade FOIA.

Last week, American Oversight filed a separate lawsuit against several top Trump administration officials involved in the now-infamous Signal group chat for violations of the FRA and the Administrative Procedure Act. Following our successful motion for a temporary restraining order, the U.S. District Court for the District of Columbia ordered the agencies to preserve all Signal communications of the defendants from March 11–15.

American Oversight’s litigation has shed light on efforts by the Trump administration and DOGE to evade accountability, and has put pressure on the Trump administration in an effort to ensure it doesn’t escape consequences for shielding its actions from the public or destroying records that belong to the American people.

Questions remain about how DOGE was preserving government records before the March 25 policy, which it claims reflects current practices. But as American Oversight’s interim executive director Chioma Chukwu recently told the New York Times, you can’t always believe what the administration says — “you have to watch what it does.”