In October, Elon Musk preached the message of government transparency during a presidential campaign rally he held in Pennsylvania in support of Donald J. Trump, suggesting that nearly all government records should be made public.
“There should be no need for FOIA requests,” Mr. Musk reiterated on X, referring to the law that gives the public the right to obtain copies of federal agency records: the Freedom of Information Act. “All government data should be default public for maximum transparency.”
But Mr. Musk’s cost-cutting initiative, better known as the Department of Government Efficiency or DOGE, appears to be heading in the opposite direction.
The White House has designated Mr. Musk’s office, United States DOGE Service, as an entity insulated from public records requests or most judicial intervention until at least 2034, by declaring the documents it produces and receives presidential records.
Katie Miller, an employee for the efficiency initiative, said on X that Mr. Musk’s office “was reorganized under the Executive Office of the President” and is now “subject to Presidential Records.”
That designation has a special legal meaning under a law called the Presidential Records Act. The law shields from the public all documents, communication trails and records from the president, his advisers and staff until five years after that president leaves office.
That law still requires presidents to keep a broad set of written materials created or received by them while executing their duties. Nonetheless, presidents can also dispose of their records after getting a written approval from the archivist at the National Archives, whom a president can remove from office.
On Friday, Mr. Trump fired the nation’s archivist, Colleen Shogan. No cause or reason was cited, Ms. Shogan said in her LinkedIn page post announcing her dismissal.
Presidents have “complete discretion” over presidential records, said Anne Weismann, a law professor at George Washington University who oversaw public records litigations at the Justice Department at the end of her two decades at the department.
The White House did not answer any questions on its efforts to put Mr. Musk’s group under the Presidential Records Act. Ms. Miller, the DOGE employee, declined to answer questions from The New York Times for this article.
Watchdog groups are likely to challenge the secrecy surrounding Mr. Musk’s operation in lawsuits.
During Mr. Trump’s first term, federal courts recognized the president’s exclusive authority over presidential records by ruling against nonprofits that sought to stop his advisers from using private messengers that automatically delete messages after a certain period.
Critics are concerned that few oversight structures exist if Mr. Trump fails to preserve the records from Mr. Musk’s cost-cutting initiative.
“They are trying to insulate this entity and the enormous power it appears to be wielding from any kind of judicial interference and public scrutiny,” Ms. Weismann said.
If Mr. Trump chooses to get rid of all those records, there is not much recourse, she said, unless Congress decides to overhaul the Presidential Records Act.
Neither Mr. Trump nor Mr. Musk has previously shown much respect for the preservation of government records and the public’s right to see them.
Mr. Trump was known to tear up White House documents and leave them on the floor during his first term, according to several former staff members. Politico reported in 2018 that some administration officials even had to tape back together shredded documents to ensure compliance with federal laws.
Mr. Musk’s commercial aerospace company, SpaceX, faced allegations that it has actively tried to avoid public records requests. Emails written by SpaceX employees to the U.S. Fish and Wildlife Service included a line that declared that they were exempt from public records requests, as they contained “confidential business information and trade secrets.”
Lauren Harper, who leads efforts for a more transparent federal government at the Freedom of the Press Foundation, said that trade secrets are one of the legitimate grounds on which the federal government can deny a public records request or redact portions of documents upon release. But such blanket declarations from private companies do not suffice for redaction or denial and could be interpreted as an implicit effort to intimidate federal officials in charge of releasing documents, Ms. Harper said.
SpaceX did not respond to multiple requests for comment.
The public records law that the White House says Mr. Musk’s team is insulated from might ironically provide a legal remedy to accountability nonprofits seeking paper trails of the DOGE members.
The federal courts have ruled that White House entities that merely advise and assist the president are not subject to Freedom of Information Act, a powerful law that presumes that government documents are public and must be produced upon written request unless they are subject to an exemption such as risking national security.
But watchdogs could bring a public records lawsuit and argue that Mr. Musk’s cost cutters are functioning as members of a separate federal agency that must answer to the FOIA, Ms. Weismann said.
Jason R. Baron, a former director of litigation at the National Archives, said if courts determined that Mr. Musk’s team was “acting like a federal agency,” not simply assisting and advising the president, then records from his office would be eligible for immediate public access.
That could ultimately cause memos, spreadsheets, even some emails of Mr. Musk and his colleagues to be publicly released, though the federal government has long been slow in fulfilling such requests.
“Despite the words of the White House, substantively to me, it seems to be an agency,” Ms. Weismann said. “It walks like a duck, quacks like a duck. Then it’s a duck.”
Some records related to Mr. Musk’s efforts might be released under FOIA by filing public records requests to individual agencies that receive DOGE emails or memos, but that would surely be a cumbersome and incomplete approach.
At least two nonprofit watchdogs, Citizens for Responsibility and Ethics in Washington and the Center for Biological Diversity, have filed public records requests on Mr. Musk’s team. Both groups said that they would file lawsuits against the Trump administration if it does not answer their records requests.
“I agree with Elon Musk because everything should be transparent,” said Jordan Libowitz, a spokesman for Citizens for Responsibility and Ethics in Washington. “But that’s the opposite of what we’re getting.”
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