Can the Public See DOGE’s Records? The Supreme Court Takes Up a Key Fight
A view of the U.S. Supreme Court in Washington, D.C., on Oct. 14, 2026. —Saul Loeb—AFP/Getty Images The U.S. Supreme Court said Tuesday that it will take up a case to decide whether a watchdog organization can obtain information to help establish whether the now-defunct Department of Government Efficiency (DOGE) is subject to a federal public records law. It’s the latest update on a lawsuit filed by a nonprofit called Citizens for Responsibility and Ethics in Washington (CREW) that argues DOGE, the initiative that was spearheaded by Tesla CEO Elon Musk, is subject to the Freedom of Information Act (FOIA). The Trump Administration has argued that FOIA does not apply to DOGE because it was not a federal agency—it was a presidential advisory body. Signed into law in 1966 by President Lyndon B. Johnson, FOIA grants “the public the right to request access to records from any federal agency,” according to the federal government’s website. Johnson said at the time that he hoped the government would, in upholding the law, weigh national security, individual privacy, confidential government deliberations, and the benefit of a well-informed constituency. “The founding principle of FOIA is that it’s crucial in a democracy to have an informed citizenry,” says Sara Creighton, an associate professor at Georgetown Law and the former Deputy Chief Counsel at American Oversight, a government transparency nonprofit. “The whole idea is that we need an informed voting public.” Justices have agreed to hear arguments over whether, and to what extent, discovery can proceed for CREW v. DOGE Service. This phase of the legal process allows opposing parties to collect information, including records and depositions, with which to make their cases. Experts say this decision will not only affect the pending lawsuit, but may also have ramifications for the future of government transparency. How did the DOGE records case reach the Supreme Court? CREW filed an FOIA request seeking expedited processing for information about DOGE on Jan. 24, 2025, seeking insights about its structure and communications with other agencies. When it didn’t receive the documents it requested, the organization sued. “The law is clear about how government records should be preserved so that, when the public requests them, they are easily and readily accessible. If the administration valued transparency, following records laws would be a priority,” CREW President Noah Bookbinder said in a statement announcing the lawsuit on Feb. 20, 2025. “Instead, US DOGE Service and OMB are acting as though the law does not apply to them. It does.” “The fight ultimately in the DOGE case, and what CREW was hoping to test with its litigation, was whether DOGE [is] subject to FOIA,” says Ryan Mulvey, a senior policy counsel at the Americans for Prosperity Foundation. On April 15, 2025, Judge Christopher Cooper ruled on behalf of the U.S. District Court for the District of Columbia that the case could proceed to discovery. The Department of Justice, however, filed an emergency appeal in May 2025 asking the Supreme Court to intervene. The Supreme Court paused the discovery orders on May 23, 2025. On June 6, 2025, it directed the appeals court to narrow the requests, finding that those concerning DOGE’s recommendations and whether agencies followed them were “not appropriately tailored.” CREW then pared back its requests for discovery, and the U.S. Court of Appeals for the D.C. Circuit upheld them. The Trump Administration again filed a request to the Supreme Court, arguing that the lower court was not adhering to the previous ruling by granting “wide-ranging and intrusive discovery.” In response, the Supreme Court agreed this week to take up the question of whether the case can proceed to discovery. It’s unclear at this point when oral arguments would begin, but a ruling is expected by the end of term in late June or early July 2027. What could the Supreme Court’s DOGE ruling mean for public access? The Supreme Court’s ruling will determine if CREW can access the information that could help it make its case that DOGE acted as a federal authority that is subject to FOIA, according to Creighton. If not, the nonprofit may have difficulty pursuing its argument. “Because so much about how DOGE operated … was not publicly explained, discovery is the only way to unearth key facts about DOGE’s operations and exercises of authority,” says Margaret Kwoka, the Frank R. Strong Chair in Law at Ohio State University’s Moritz College of Law, who joined a brief supporting CREW as an outside legal expert. “Those details will illuminate whether it is in fact exercising independent authority or whether it is acting as an advisor to the President.” The outcome of the case could have implications beyond the current Administration, Creighton says. “Whether an entity is subject to FOIA really determines how much information the public gets to know about it, and whether [entities] have any obligation to disclose their documents to the public,” Creighton says. The current issue before the Supreme Court pertains to discovery, but Creighton warns that if the Supreme Court ultimately rules that DOGE is not subject to FOIA, that could potentially “open the door for future presidents to create entities inside the Executive Office of the President that do significant work—even potentially work relating to the work of agencies who are usually subject to FOIA—but allow that work to be outside the scope of FOIA.” CREW did not respond to TIME’s request for comment, but it has previously said that government transparency is at stake. “The lower courts have uniformly ruled that CREW is entitled to discovery in this case to help the court determine whether DOGE wields the type of authority that would make it subject to FOIA,” CREW’s chief counsel, Nikhel Sus, told POLITICO in a statement on Tuesday. “We will continue to pursue transparency for the American people, who deserve to know the details of the Trump Administration’s efforts to unilaterally remake the federal government.” Solicitor General D. John Sauer, meanwhile, argued in his filing to the Supreme Court that the appeals court ruling “intrudes into the autonomy and confidentiality of presidential advisors and augurs time-consuming and burdensome discovery litigation.” He further claimed that the lower court decision “threatens to burden future presidential administrations” with similar legal cases. The White House referred TIME to the Department of Justice, which did not immediately respond to a request for comment. What other records lawsuits has the Trump Administration faced? The DOGE dispute is among several legal battles over access to, and preservation of, government records under the Trump Administration. In 2025, American Oversight filed a lawsuit asking the court to order multiple national security officials to preserve official communications that were exchanged on the encrypted messaging app Signal. The request was filed after it came to light that the officials were exchanging messages regarding planned military strikes in Yemen. The case is still ongoing. In April, the same group, along with the American Historical Association, sued the Trump Administration over a legal opinion released by the Department of Justice that claimed the Presidential Records Act—which stipulates that presidential records be preserved and transferred to the National Archives when the President leaves office—is unconstitutional. That case is also ongoing. While those cases remain ongoing, American Oversight has secured a win in another records dispute. In August, a federal judge struck down an Energy Department policy that would have permitted it to close pending FOIA requests filed earlier than Oct. 1, 2024, unless requesters reaffirmed their interest within 30 days. The court sided with the watchdog group.