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Dick Durbin Sounds Alarm About DOGE's Possible Failure To Be Subject To FOIA
Forbes Breaking News
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4/22/2025
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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00:00
Generally, using AI in the federal government for transparency would be a good thing.
00:04
Senator Durbin.
00:06
Thank you, Chairman Grassley.
00:07
One can argue that the most ambitious and energetic and active agency of government
00:15
is not an agency of government, DOGE, Department of Government Efficiency,
00:20
which I don't recall as part of our cabinet.
00:22
But I believe that the courts have concluded that despite their protestations
00:29
to the contrary, that DOGE is probably required to comply with FOIA,
00:36
at least that's the status as we currently look at it.
00:40
I worry about where this is headed if an agency with the power
00:45
to eliminate federal agencies is not subject to FOIA.
00:50
What is motivating these people?
00:53
What activities are they engaged in?
00:56
What disclosures should they make to the American public?
00:58
Apparently, they don't believe there's anything they should disclose to the American public.
01:04
Professor Korko, what's your opinion?
01:08
Thank you, Senator Durbin.
01:10
There are, as you noted, the question about whether DOGE is subject to FOIA is currently in the courts.
01:18
It's a long-standing doctrine under FOIA that agencies that exercise their own independent authorities
01:24
under the government are subject to FOIA, whereas the president's closest advisors are not,
01:29
and the president, of course, himself is not subject to FOIA and instead subject to the Presidential Records Act.
01:35
I have no reason to believe that the courts are not perfectly capable of applying that test faithfully
01:40
in this instance as they have in the past.
01:42
The preliminary ruling that you're referring to was preliminary,
01:46
but does indicate that the district court that currently has the case that's furthest along
01:50
does view DOGE as likely to be subject to FOIA's requirements.
01:56
It looks like that case may be moving into a discovery phase,
01:59
which will give us more information about what DOGE is doing and its role
02:03
in order for the courts to make that determination.
02:06
And at this point, I see no reason to believe that the courts are not capable of making that determination.
02:12
As to why an agency or a government entity would prefer to exempt itself from transparency,
02:20
I think over the history of governments, it has been shown that transparency is uncomfortable
02:26
and that there are lots of reasons why government entities try to avoid it.
02:32
But I think it's important to remember that transparency requirements serve two functions.
02:37
One is to let the public know what the government is doing
02:40
and to uncover any sort of misconduct or abuse of power.
02:44
And the other is to deter that abuse of power and misconduct.
02:47
When government officials know that what they're doing will come to light,
02:51
they are less likely to act improperly.
02:53
And so I think the faithful application of FOIA in this case,
02:57
like in every other case, is extremely important.
02:59
And, of course, there's another way to foil FOIA,
03:04
and that would be what's happening at the Department of Health and Human Services
03:08
where the newly minted Secretary Robert Kennedy just fired personnel charged with handling FOIA requests
03:15
at the CDC and the Food and Drug Administration.
03:18
He did this after stating, and I quote,
03:21
public health agencies should be transparent,
03:24
and if we want Americans to restore trust in public health agencies,
03:27
we need transparency.
03:29
Reportedly, FOIA staff at numerous other agencies have also been fired.
03:34
So what is the practical impact when the FOIA agency within the agency is virtually empty
03:41
when they open the door to the office?
03:45
Dr. Epstein?
03:45
Thank you, Senator.
03:49
Well, I think one thing is, and I don't know the specifics of those firings,
03:54
but I think certainly those circumstances should increase the obligation to make proactive disclosures.
04:01
I would say in my own experience, one of the things that was most surprising to me,
04:07
both as a transparency advocate and in the executive branch,
04:11
is the number of agencies that use outside consultants or contractors
04:16
for the purpose of managing their cloud and doing searches for the purpose of disclosure.
04:23
So it would seem to me that if you're removing staff and still bound by compliance requirements,
04:30
you're going to have to find some ability to conduct searches and productions of documents,
04:36
and that just may mean relying on contractors versus employees.
04:41
Unless the administration happens to believe that concealing this information
04:45
is important enough to defy the law, correct?
04:49
You know, I don't know the specifics of that, but often, you know,
04:54
I can say in my own experience,
04:57
the amount of FOIA litigation and the processing requirements
05:01
are a heavy burden for the agencies,
05:05
and, you know, I worked in the executive branch for close to four years.
05:10
I think every administration has a good-faith goal of complying with FOIA.
05:18
Often, it's not the top priority for the White House,
05:22
and it's generally managed by career civil servants,
05:26
but there certainly are challenges with fully responding to these requests.
05:31
They're massive, and they take time.
05:34
Senator Grassley, thank you.
05:35
Hey, I'm going to offer for what you follow up on with HHS,
05:43
this explanation that we got from them about that.
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