Durbin Questions Witnesses During Senate Judiciay Committee Hearing On Importance Of Transparency In Government
Durbin questioned witnesses about the impact of firing federal workers who were tasked with responding to FOIA requests
WASHINGTON – U.S. Senate Democratic Whip Dick Durbin (D-IL), Ranking Member of the Senate Judiciary Committee, today questioned witnesses during a Senate Judiciary Committee hearing entitled “The Freedom of Information Act: Perspectives from Public Requesters.” Durbin began his questioning by asking Professor Margaret Benvignati Kwoka, a law professor at the Ohio State University Moritz College of Law, about her thoughts on the so-called Department of Government Efficiency (DOGE) evading Freedom of Information Act (FOIA) requests.
“One could argue that the most ambitious and energetic and active agency of government is not an agency of government – DOGE… which I don’t recall is part of our cabinet. But I believe that the courts have concluded that despite their protestations to the contrary, that DOGE is probably required to comply with FOIA, at least under the status we currently look at,” Durbin began.
“I worry about where this is headed if an agency with the power to eliminate federal agencies is not subject to FOIA. What is motivating these people? What activities are they engaged in? What disclosures should they make to the American public? Apparently, they don’t believe there is anything they should disclose to the American public. Professor Kwoka, what’s your opinion?” Durbin asked.
Professor Kwoka replied that the courts are currently reviewing whether DOGE is required to comply with FOIA requests. She added that it’s long-standing doctrine that agencies that exercise their own independent authorities under the government are subject to FOIA while the President and his closest advisors are bound by the Presidential Records Act rather than FOIA. Professor Kwoka summarized the cases moving through the courts on whether DOGE is subject to FOIA, noting that a preliminary ruling by a district court has said that DOGE is likely bound by FOIA.
“Of course, there is another way to foil FOIA, and that would be what’s happening at the Department of Health and Human Services with the newly-minted Secretary Robert Kennedy, [who] just fired [the] personnel charged with handling FOIA requests at the CDC and the Food and Drug Administration. He did this after stating, ‘Public health agencies should be transparent, and if we want Americans to restore trust and public health agencies, we need transparency.’ Reportedly FOIA staff at numerous other agencies have also been fired,” Durbin continued.
“What is the practical impact when the FOIA agency within the agency is virtually empty?” Durbin asked Dr. Daniel Epstein, Associate Professor of Law at St. Thomas University School of Law and Vice President of America First Legal.
Dr. Epstein answered that these firings should motivate federal agencies to make proactive disclosures. Additionally, firing workers dedicated to completing FOIA requests will increase government reliance on contractors to conduct searches and produce documents for FOIA requests.
“Unless this Administration happens to believe that concealing this information is important enough to defy the law, correct?” Durbin followed up.
Dr. Epstein replied that while he can’t speak to how the White House views or prioritizes FOIA requests, usually federal agencies rely on career civil servants to manage responses to FOIA requests.
Durbin added, “This Committee has approached FOIA in a bipartisan fashion, and it should continue to—working to ensure agencies comply with the law and taking opportunities to strengthen the law.”
Video of Durbin’s questions in Committee is available here.
Audio of Durbin’s questions in Committee is available here.
Footage of Durbin’s questions in Committee is available here for TV Stations.
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