The federal government — no matter the administration in charge — has always had issues fulfilling public records requests in a timely manner. But the recent firings of staff responsible for handling such requests have left some experts worried about access to government records under President Donald Trump.
“I think that reporters, as is the American citizen, are in for a boatload of trouble in the next four years in this regard,” said Terry Mutchler, an attorney and former journalist who serves as the vice president of the National Freedom of Information Coalition’s board.
CNN reported Tuesday that it had used the Freedom of Information Act to ask the Office of Personnel Management for records related to the security clearances for billionaire Elon Musk and the staff of the Department of Government Efficiency. An OPM email responded, “Good luck with that” — the staff responsible for responding to FOIA requests at OPM had been fired.
“Anytime that whole FOIA offices are getting fired, it portends terrible things,” said Washington Post FOIA director Nate Jones.
CNN’s story about the firings noted that the decision to terminate OPM’s public records officers and communications staff mirrored the firing of Twitter’s media relations team when Musk took over the social media company in 2022. For months, press inquiries to Twitter, now known as X, received an automated reply of a poop emoji.
Musk has taken his strategy of mass job cuts at X to the federal government, where tens of thousands of employees have taken deferred resignations, been laid off or been fired. More FOIA officers may be caught up in those cuts, which show no signs of stopping, said Lauren Harper, the Freedom of the Press Foundation’s Daniel Ellsberg Chair on Government Secrecy.
“Typically speaking, FOIA offices and FOIA officers are not considered essential employees,” Harper said, citing the furloughing of many FOIA employees in past government shutdowns.
Not having staff available to process records requests does not relieve a federal agency of its legal obligation to respond, experts said. The law requires agencies to respond to requests within 20 business days and allows requesters to sue for records if that deadline is missed.
“It’s going to come down to the courts, and it’s going to come down to whether or not this administration has any honor in honoring court opinions,” Mutchler said.
Going to court does require resources, though experts said there are ways to reduce or recoup litigation costs. A well-written FOIA request that falls within the parameters of the law can avoid escalating litigation costs, Mutchler said. And Jones noted that if a court rules in a requester’s favor, it may also require the agency to cover the requester’s attorney fees.
If a requester wins their lawsuit, the court will order that the agency adhere to a production schedule for records. Without FOIA staff on hand, agencies may struggle to keep up with those court-ordered deadlines, New York Times senior counsel Al-Amyn Sumar said.
“As time goes on, and if more people are laid off from agencies, I think we can expect that the agencies will be looking for more lenient production schedules. Or they will come back and say, ‘We just haven’t been able to get to this,’” Sumar said. “I don’t know how the courts are going to respond to that.”
In the face of a FOIA request denial or nonresponse, journalists have a few options outside of litigation, experts said. One is to file a request with another entity that has access to the same information. Sumar said that he advises reporters to file requests with smaller agencies if they can since those agencies tend to receive fewer requests and are thus quicker to respond. State agencies, which adhere to state public records laws, are another option.
Journalists can also make it clear to their audience that the government is withholding information, just as CNN did in its reporting on OPM, Jones said. At the Post, Jones writes a column reporting on the paper’s quests for public records.
“Let the public know about their losses: ‘We requested this information under FOIA. Public, don’t you think that you have the right to it?’” Jones said. “Be transparent with the readership about the federal government’s failings in following the law or withholding information.”
Finally, “nothing’s going to take the place of a source” when it comes to obtaining information, Mutchler said. A source, she pointed out, can give a reporter records much faster than a 20-day FOIA response.
Musk, a senior adviser to the president, has repeatedly made statements in favor of government transparency. At one point, he posted on X that “there should be no need for FOIA requests” since government data should be public by default.
But DOGE, which Musk works closely with, is facing major questions about transparency. The White House has stated that DOGE falls under the Executive Office of the President and is subject to the Presidential Records Act, which means that its records are not eligible for FOIA access until five years after Trump leaves office. Nonprofit watchdog American Oversight has sued DOGE, arguing that the department should be subject to FOIA now.
“Elon Musk and other members of the administration have talked about the importance of transparency, that they think the American public should understand the full scope of what DOGE is doing,” Sumar said. “And we agree, and we hope that they will accept that position in legal terms too.”
Beyond FOIA, Harper said she worries about the general management and preservation of government records. Musk and Trump are trying to eliminate the United States Agency for International Development, and nearly all of the agency’s employees have been put on leave. If USAID disappears, Harper asked, what happens to its records?
The firing of the National Archives and Records Administration head and forced resignations of senior leadership is also concerning, Harper said. One of the National Archives’ duties is helping federal agencies preserve their records.
“The gutting of the institutional knowledge at the National Archives is going to impact every agency across the federal government,” Harper said. “That will be exacerbated as DOGE goes from agency to agency, possibly duplicating what it did at OPM.”
