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.
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.
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