DOGE Employees Ordered to Stop Using Slack While Agency Transitions to a Records System Not Subject to FOIA
Source: 404 Media
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The messages indicate that, under Elon Musk’s leadership, DOGE is actively taking steps to make sure its communications and records are not subject to the Freedom of Information Act, a records transparency law commonly used by journalists and lawyers to hold government accountable. Instead, DOGE is asserting that rather than reporting up through the Office of Management and Budget as the United States Digital Service did for years, it is reporting through the Executive Office of the President and to White House Chief of Staff Susie Wiles. Under OMB, it was generally subject to FOIA. Under the White House Chief of Staff, records it creates are generally not subject to FOIA.
This would make DOGE a Presidential Records Act entity, meaning records it creates are not FOIAble until years after a president leaves office rather than a Federal Records Act entity, which would make its records FOIAble now. This is a very notable, but unsurprising move that federal records experts have been worried about since the issuance of Donald Trump’s executive order renaming the United States Digital Service—an agency of federal tech workers that was formed under the Obama administration—to the United States DOGE Service. That executive order specifically states that the renamed entity “shall be established in the Executive Office of the President,” and that the USDS administrator (Elon Musk) “shall report to the White House Chief of Staff.” The Dispatch, for example, wrote a very informative article about this could limit public scrutiny of DOGE and the “clever” executive order that did this.
Government experts 404 Media spoke to said the directive to not use Slack and the assertion that DOGE is now under the Executive Office of the President rather than OMB is not surprising but that it is very concerning, and that this assertion can be, will be, and is being legally challenged.
"Just changing the name alone under the Executive Order doesn't affect DOGE's recordkeeping status,” Jason R. Baron, professor at the University of Maryland and former director of litigation at the National Archives and Records Administration told 404 Media in a phone call. “The administration apparently has made a determination that DOGE will be a presidential component subject to the Presidential Records Act. However, that will surely be challenged in the courts in connection with FOIA lawsuits. Under FOIA, it will be for the courts to decide whether under existing DOGE is acting more like a federal oversight agency or as a presidential component that solely advises the President.”
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Read more: https://www.404media.co/doge-employees-ordered-to-stop-using-slack-while-agency-transitions-to-a-records-system-not-subject-to-foia/
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