At a Senate Judiciary Committee hearing prior to the Congressional recess, Sen. Dick Durbin (D-IL) took aim at DOGE and whether it is not subject to FOIA.
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00:00Generally, using AI in the federal government for transparency would be a good thing.
00:04Senator Durbin.
00:06Thank you, Chairman Grassley.
00:07One can argue that the most ambitious and energetic and active agency of government
00:15is not an agency of government, DOGE, Department of Government Efficiency,
00:20which I don't recall as part of our cabinet.
00:22But I believe that the courts have concluded that despite their protestations
00:29to the contrary, that DOGE is probably required to comply with FOIA,
00:36at least that's the status as we currently look at it.
00:40I worry about where this is headed if an agency with the power
00:45to eliminate federal agencies is not subject to FOIA.
00:50What is motivating these people?
00:53What activities are they engaged in?
00:56What disclosures should they make to the American public?
00:58Apparently, they don't believe there's anything they should disclose to the American public.
01:04Professor Korko, what's your opinion?
01:08Thank you, Senator Durbin.
01:10There are, as you noted, the question about whether DOGE is subject to FOIA is currently in the courts.
01:18It's a long-standing doctrine under FOIA that agencies that exercise their own independent authorities
01:24under the government are subject to FOIA, whereas the president's closest advisors are not,
01:29and the president, of course, himself is not subject to FOIA and instead subject to the Presidential Records Act.
01:35I have no reason to believe that the courts are not perfectly capable of applying that test faithfully
01:40in this instance as they have in the past.
01:42The preliminary ruling that you're referring to was preliminary,
01:46but does indicate that the district court that currently has the case that's furthest along
01:50does view DOGE as likely to be subject to FOIA's requirements.
01:56It looks like that case may be moving into a discovery phase,
01:59which will give us more information about what DOGE is doing and its role
02:03in order for the courts to make that determination.
02:06And at this point, I see no reason to believe that the courts are not capable of making that determination.
02:12As to why an agency or a government entity would prefer to exempt itself from transparency,
02:20I think over the history of governments, it has been shown that transparency is uncomfortable
02:26and that there are lots of reasons why government entities try to avoid it.
02:32But I think it's important to remember that transparency requirements serve two functions.
02:37One is to let the public know what the government is doing
02:40and to uncover any sort of misconduct or abuse of power.
02:44And the other is to deter that abuse of power and misconduct.
02:47When government officials know that what they're doing will come to light,
02:51they are less likely to act improperly.
02:53And so I think the faithful application of FOIA in this case,
02:57like in every other case, is extremely important.
02:59And, of course, there's another way to foil FOIA,
03:04and that would be what's happening at the Department of Health and Human Services
03:08where the newly minted Secretary Robert Kennedy just fired personnel charged with handling FOIA requests
03:15at the CDC and the Food and Drug Administration.
03:18He did this after stating, and I quote,
03:21public health agencies should be transparent,
03:24and if we want Americans to restore trust in public health agencies,
03:27we need transparency.
03:29Reportedly, FOIA staff at numerous other agencies have also been fired.
03:34So what is the practical impact when the FOIA agency within the agency is virtually empty
03:41when they open the door to the office?
03:45Dr. Epstein?
03:45Thank you, Senator.
03:49Well, I think one thing is, and I don't know the specifics of those firings,
03:54but I think certainly those circumstances should increase the obligation to make proactive disclosures.
04:01I would say in my own experience, one of the things that was most surprising to me,
04:07both as a transparency advocate and in the executive branch,
04:11is the number of agencies that use outside consultants or contractors
04:16for the purpose of managing their cloud and doing searches for the purpose of disclosure.
04:23So it would seem to me that if you're removing staff and still bound by compliance requirements,
04:30you're going to have to find some ability to conduct searches and productions of documents,
04:36and that just may mean relying on contractors versus employees.
04:41Unless the administration happens to believe that concealing this information
04:45is important enough to defy the law, correct?
04:49You know, I don't know the specifics of that, but often, you know,
04:54I can say in my own experience,
04:57the amount of FOIA litigation and the processing requirements
05:01are a heavy burden for the agencies,
05:05and, you know, I worked in the executive branch for close to four years.
05:10I think every administration has a good-faith goal of complying with FOIA.
05:18Often, it's not the top priority for the White House,
05:22and it's generally managed by career civil servants,
05:26but there certainly are challenges with fully responding to these requests.
05:31They're massive, and they take time.
05:34Senator Grassley, thank you.
05:35Hey, I'm going to offer for what you follow up on with HHS,
05:43this explanation that we got from them about that.