OPM gave Defendants Musk and DOGE—including several DOGE agents identified by name in the Complaint—“unrestricted, wholesale access to OPM systems and records.” Compl. ¶¶ 8, 10 29, 36. Defendants themselves claim that E.O. 14,158 required OPM to give DOGE, a separate agency, “access to all” of OPM’s sensitive data systems. MTD 2, 22; see also Compl. ¶ 5; E.O. § 4(b).
Contrary to Defendants’ arguments, Plaintiffs alleged that the recipients of their data included non-OPM DOGE agents, some of whom have been installed at OPM under irregular and exceptionally opaque circumstances. See Compl. ¶¶ 5-6, 8-10, 24-27. The news reports cited in the Complaint are not to the contrary. They use a series of informal terms to describe DOGE, rather than referring to definitions of the EO. Supra at 3 n.4.
Regardless of their employment status, DOGE agents do not “need” the sensitive records of millions of people in OPM’s databases to perform their duties. Cf. MTD, 22-23. The term “need” means “to have an urgent or essential use” for something, Need, Black’s Law Dictionary (5th ed. 1979), or a “clear and approved reason for requiring access.” Need-to-Know Basis, Black’s Law Dictionary (12th ed. 2024). DOGE’s stated duties are to modernize government IT, and OPM is tasked to help create a plan to address hiring practices. See E.O. 14,158 or E.O. 14,170. Records that are being disclosed but that are unnecessary—or not needed—to accomplish DOGE’s purposes include employees’ race, disability, medical condition, or union activity, as well as all data on former employees or rejected job applicants. Compl. ¶ 2.
Remarkably, Defendants assert that DOGE agents need “all unclassified agency records, software systems, and IT systems” because the President said so. MTD 22 (quoting E.O.) (emphasis added). This proves too much. The E.O. on which Defendants rely does not go as far as they suggest (MTD 22-23): it requires agency heads to make information available to DOGE only as “consistent with law.” E.O. § 4(b). The Privacy Act is a “law” that imposes a “need” requirement on intra-agency disclosure, so the E.O. does not purport to limit this rule. § 552a(b)(1). In the words of Privacy Act co-sponsor Sen. Percy, the Act is meant to prevent “the day when a bureaucrat in Washington … can use his organization’s computer facilities to assemble a complete dossier of all known information about an individual.” 120 Cong. Rec. 36,917 (Nov. 21, 1974). As other courts have ruled, DOGE agents do not need “unprecedented, unfettered access” to entire agency records systems to “accomplish the goals of modernizing technology, maximizing efficiency and productivity, and detecting fraud, waste, and abuse,” and thus the “need” exception to the Privacy Act does not apply. AFSCME, 2025 WL 868953, *63-64 (describing DOGE’s similar access to SSA systems).
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