OPM’s Proposed NDA Attempts to Intimidate Public Servants into Silence
On May 27, the Office of Personnel Management proposed a governmentwide nondisclosure agreement (NDA) that federal agencies would require new and existing employees to sign.
The notice claims that the NDA will “promote consistency across Government, better protect confidential information, and better inform Federal employees of their rights and obligations regarding confidential information.” In reality, the NDA would create a new blanket prohibition on disclosure that indiscriminately sweeps in speech protected by the First Amendment – an attempt to intimidate public servants into silence as they witness unprecedented levels of abuse and corruption.
As we told Bloomberg, “the purpose of this isn’t to protect individuals or serve the public interest. It’s to help the president avoid bad press and cover up abuses of power that only people on the inside can see and reveal.”
A government of, by, and for the people relies on transparency. Self-government rests on the principle that what the government does is presumptively the public’s right to know, except in some specific and justified exceptions. This NDA turns that presumption on its head, asserting that government employees must be contractually bound to keep routine government information secret.
That is why Justice Connection – with assistance from the Washington Litigation Group – submitted formal comments opposing the draft NDA. You can read the full submission below. We urge our fellow DOJ alums to weigh in during the notice-and-comment period as well by this Friday, June 26, urging OPM to reject this proposed NDA.
One of the basic obligations of public service required by the federal government is that employees “shall disclose waste, fraud, abuse, and corruption to appropriate authorities.”
As Aaron Zelinsky highlighted in a Justice Connection Substack post, the Inspector General’s own whistleblower protection page states that when the corruption is coming from within (or from the top of) the Justice Department, “DOJ employees may disclose information to anyone, including non-governmental audiences, unless the information is classified or specifically prohibited by law from release.” (FBI employees have more limited disclosure protections based on the individual to whom they disclose.)
Fulfilling this obligation is not easy. Contrary to its claims to being the “most transparent administration in American history,” this administration has choked off whistleblowing avenues and slandered many who’ve come forward. That’s why Justice Connection’s Pro Bono Legal Network connects DOJ employees to lawyers who can help. It’s also why we partnered with Protect Democracy to develop a practical guide to help employees speak to reporters – while protecting themselves and respecting the law.
But if this NDA rule is finalized, blowing the whistle will become even harder. Please take a few minutes to join us in lodging your objection.
