And I must say: the preposterous argument that DOGE is not any part of our government. . . is particularly galling.
These malign idiots renamed an existing branch of the government -- and now want to say it is above and beyond any federal transparency law or rule. Ahem, Mr. Musk -- that is not how FOIA works, son. Here's the excellent -- well reasoned, 37 pager of an overnight opinion, out of the CREW lawsuit in DC -- and a bit:
. . .“The Supreme Court has observed that a public informed about its government’s actions is ‘a structural necessity in a real democracy.’” Brennan Ctr., 498 F. Supp. 3d at 101 (quoting Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157, 172 (2004)). Timely awareness is equally necessary because “stale information is of little value.” Payne Enters. v. United States, 837 F.2d 486, 494 (D.C. Cir. 1988). Thus, “in a few rare FOIA cases” involving “ongoing proceedings of national importance,” courts in this district “have concluded that a delay in processing of a FOIA request would cause irreparable harm.” Brennan Ctr., 498 F. Supp. 3d at 101 (D.D.C. 2020) (citing Ctr. for Public Integrity, 411 F. Supp. 3d at 11–13 (collecting cases)).
If the Court does not grant preliminary relief to CREW, records responsive to the USDS request will not be released anytime soon, if ever. As the government stated at oral argument, USDS is not currently processing CREW’s request because it does not believe itself to be an agency. [Ed. Note: WTAH?!?] Rough Tr. 4:1–4. The time it would take to litigate that question on the merits and thereafter begin processing would likely result in a substantial delay of years, for all practical purposes imposing an indefinite delay. By that time, the Court suspects that the information may indeed be “stale,” or at least, significantly less useful than it once was. Accordingly, “the potential for irreparable harm under these circumstances exists because ongoing public and congressional debates about issues of vital national importance cannot be restarted or wound back.” Protect Democracy Proj., 263 F. Supp. 3d at 301. . . .
“Moreover, absent an expedited response to Plaintiff's FOIA request, it is not clear to the Court that the public” or Congress “would otherwise have access to this relevant information.” Ctr. for Pub. Integrity, 411 F. Supp. 3d at 13. Congressional subpoenas for Musk to testify about USDS’s work have already been blocked, and the Court sees no reason to think they will ever succeed. Ivan Pereira & Jay O’Brien, Republicans Block Musk from Congressional Subpoena as DOGE Continues to Access Government Data, ABC News (Feb. 5, 2025). . . . To be sure, this indicates that not all Members of Congress, nor even a majority, desire access to the requested documents. But that does not change CREW’s and the public’s important interest in obtaining these records and discussing them with the Members that do. . . .
As set forth in the accompanying Order, the Court will direct USDS to process CREW’s request on an expedited basis but will stop short of ordering production of either the USDS or OMB Requests by March 10, 2025. In accordance with its supervisory role, however, the Court will direct the government to file a status report by March 20, 2025, including the estimated number of documents responsive to CREW’s three requests. The Court will further order the parties to meet and confer regarding a proposed processing and production timeline and to file by March 27 a joint status report proposing a schedule for expedited processing and rolling production of responsive records. . . .
So -- bit by bit -- sanity is making a comeback, in the face of a lawless onslaught from Musk and Tangerine 2.0. Thank you, USDC Judge Cooper! Onward.
नमस्ते
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