Supreme Court Rules DOGE Can Access Social Security Data and Avoid FOIA—for Now

Quick Hits

• The Privacy Act of 1974 and FOIA govern how, when, and why public records may be collected, stored, and disclosed.
• Over objections from the Supreme Court’s three liberal justices, the Court granted DOGE unlimited access to Social Security Administration data. In a separate case, the Court also cautioned against overly broad discovery of internal executive branch communications.
• This combination of decisions illustrates the careful balance federal agencies and their private-sector partners must strike when handling public records that potentially contain personally identifiable information.

On January 20, 2025, President Donald Trump signed an executive order requiring agency heads to establish DOGE teams and share “full and prompt access to all unclassified agency records, software systems, and IT systems” with those teams to “maximize governmental efficiency and productivity.” A flurry of lawsuits regarding DOGE teams’ access to agency records ensued. In both orders handed down last week, the government sought stays of lower court orders that either prohibited or compelled the disclosure of certain records.

Social Security Administration v. American Federation of State, County, and Municipal Employees

In February 2025, two labor unions and a nonprofit organization sued SSA, alleging that opening SSA’s data systems to DOGE would violate the Privacy Act and the Administrative Procedure Act. To protect against privacy risks that the government’s handling of Americans’ information creates, the Privacy Act of 1974 prohibits agencies from disclosing any record which is contained in a system of records to any person, or to another agency, unless certain criteria are met. Agencies often require contractors to comply with the Privacy Act.

On April 17, 2025, the U.S. District Court for the District of Maryland preliminarily enjoined SSA from granting DOGE access to its records, in part because members of the unions and the nonprofit would suffer irreparable injury from the disclosure of their personal information—including Social Security numbers, dates of birth, addresses, bank account numbers, medical records, and more—to DOGE staffers. The en banc Fourth Circuit rejected DOGE’s request to stay the preliminary injunction. The government’s principal argument was that they were likely to succeed on the merits under the Privacy Act’s exception, which permits disclosure “to those officers and employees of the agency … who have a need for the record in the performance of their duties.”

In an unsigned, two-page order on its emergency docket, the Supreme Court stayed the injunction, granting DOGE access to the SSA data during the pendency of the case. When considering whether to grant a stay, the Court looks to four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” The Court wrote only: “We conclude that, under the present circumstances, SSA may proceed to afford members of the SSA DOGE Team access to the agency records in question in order for those members to do their work.”

Justice Ketanji Brown Jackson dissented from the grant of the application for stay, which Justice Sonia Sotomayor joined. The dissent criticized the Court for “allow[ing] the [SSA] to hand DOGE staffers the highly sensitive data of millions of Americans,” specifically, because the data contained “personal, non-anonymized information” that DOGE would handle “before the courts have time to assess whether DOGE’s access is lawful.” According to Justice Jackson, the mere inability of the government to wait for litigation to unfold before accessing the data is insufficient to show irreparable injury. She emphasized that record evidence showed “DOGE received far broader data access than the SSA customarily affords for fraud, waste, and abuse reviews,” and stressed that the district court’s injunction, which allowed DOGE staffers to have access to redacted or anonymized records, so long as DOGE staffers met training, background check, and other requirements, was “minimally burdensome” for the government.

U.S. DOGE Service v. Citizens for Responsibility and Ethics in Washington

Meanwhile, shortly after DOGE was created, the nonprofit watchdog organization Citizens for Responsibility and Ethics in Washington (CREW) submitted a FOIA request seeking information about DOGE’s structure and operations. Among other things, CREW sought the details of intra-executive branch DOGE recommendations to the president. FOIA is a federal law that gives the public the right to request access to records from any federal agency, including records from contractors or grant recipients that are maintained by an agency.

When DOGE refused to fulfill the request, CREW filed suit in the U.S. District Court for the District of Columbia seeking to compel the disclosures and to expedite discovery to determine whether DOGE was a federal “agency” that must comply with FOIA. The district court ordered DOGE to provide most of the requested information. The D.C. Circuit Court denied the government’s request for a stay of the disclosures, characterizing the discovery requests as “modest.” In response, the government filed an emergency application with the Supreme Court seeking to stay the discovery orders pending review.

The Supreme Court granted the government’s request to stay the portions of the discovery order that would have required the government to disclose internal recommendations and whether those recommendations were followed, stating that the order was overly broad and instructing the D.C. Circuit to narrow the order accordingly. Importantly, with regard to whether DOGE was an “agency” for FOIA purposes, the Court wrote:

Any inquiry into whether an entity is an agency for the purposes of the Freedom of Information Act cannot turn on the entity’s ability to persuade. Furthermore, separation of powers concerns counsel judicial deference and restraint in the context of discovery regarding internal Executive Branch communications.

DOGE is not a cabinet-level department but has been central to President Trump’s efforts to overhaul the federal government. The Court’s three liberal justices would have denied the government’s request.

Conclusion

For entities potentially subject to the Privacy Act and FOIA—including federal agencies and companies that may need to comply with public records mandates by virtue of their doing business with federal agencies—or that have submitted information to the government—these decisions provide a glimpse not only into how the Court approaches injunctions, but also how it views privacy harms associated with public records. First, it is notable that the Court apparently found the government’s argument regarding employees who “need” to access the data under the Privacy Act persuasive. This understanding of the Privacy Act’s exemption may give agencies greater leeway to make operational decisions. At the same time, these entities may want to note the risks of exposing pre-decisional, deliberative, and privileged information, including recommendations about personnel and agency operations. Overbroad or expedited discovery can force recordkeepers to choose between transparency and information security, risking inadvertent disclosure of protected data or system vulnerabilities. And changes in agency policy or increased scrutiny of internal communications could affect contract terms, compliance obligations, and risk management strategies.

Ogletree Deakins’ Cybersecurity and Privacy Practice Group will continue to monitor developments and will provide updates on the Cybersecurity and Privacy blog as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ New Administration Resource Hub.

Evan J. Yahng is an associate in the Washington, D.C., office of Ogletree Deakins.

Lana E. Dranow is a law student currently participating in the summer associate program in the Nashville office of Ogletree Deakins.

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