On April 2, 2025, Judge Beryl Howell, who sits on the U.S. District Court for the District of Columbia, granted American Oversight’s motion for a preservation order in American Oversight v. U.S. Department of Government Efficiency, one of several lawsuits challenging the status of DOGE as an “agency” for purposes of the FOIA. As FOIA Advisor previously reported, DOGE released a copy of its records retention policy under the Presidential Records Act as part of its opposition to American Oversight’s motion.
Among other things, Judge Howell explained in her minute order that, “[n]otwithstanding the fact that DOGE has issued a litigation hold,” its personnel “‘may not fully appreciate their obligations to preserve federal records,’ under either the FOIA or the Presidential Records Act, as ‘many of [the] staffers are reported to have joined the federal government only recently and . . . may not be steeped in its document retention policies,’ . . . which, under FOIA, reaches even those government records stored on private devices[.]” She also noted that “[a]dditional concerns arise due to the fact that DOGE ‘operat[es] with unusual secrecy,’ which includes the use of ‘Signal, an encrypted messaging app with an auto-delete function,’ . . . and has refused to stipulate to its preservation obligations of documents that are at the heart of this litigation.” Finally, Judge Howell reasoned that, “to the extent that DOGE insists that this entity's compliance with the Presidential Records Act . . . is sufficient compliance with preservation obligations in this case” that “only confirms plaintiff's concern about the need for a preservation order since . . . what qualifies as a record and the respective retention obligations differ between the PRA and the FOIA[.]” Moreover, “DOGE's actual compliance with PRA record retention obligations mitigates any burden of DOGE also complying with obligations to preserve records at issue in this case and prevent spoliation of records and information during the pendency of this litigation.”