WASHINGTON, D.C. (FEDweek) — In crafting a proposed nondisclosure agreement for government-wide use (see related story), OPM cited as justification recent leaks, but an employee union and a law firm specializing in federal employment law say that the government already has rules against such disclosures and that the form will have a chilling effect on employees’ free speech rights.
“In much of the private sector, employees handling sensitive business or customer information are routinely required to sign confidentiality agreements, and the federal government should not be held to a lower standard,” OPM director Scott Kupor said in an announcement. “Americans should be able to trust that their personal data and sensitive government information are being handled responsibly. This proposal reinforces accountability across the federal workforce while helping agencies better protect against unauthorized disclosures.”
“This move is rooted in concerns that unauthorized disclosures of sensitive government information are disrupting agency operations and eroding trust across government,” an OPM spokeswoman said in an email to FEDweek.
Of particular concern are “recent leaks involving planned immigration enforcement operations, disclosures to the media about a confidential U.S. operation [in Venezuela] before it occurred, and the release of personal information belonging to roughly 4,500 ICE employees — including frontline officers. These leaks endangered agents, troops, and operational security,” she said.
She also stressed this provision of the proposed form: “Nothing in this Agreement shall be construed to prohibit or restrict the Employee from exercising any rights protected under the Whistleblower Protection Act, 5 U.S.C. § 2302(b), or any other applicable federal law that permits disclosure.”
However, the AFGE union said that agencies “already have extensive policies and procedures in place for preventing the unauthorized release of classified or privileged information. This proposed rule sweeps in an extraordinarily broad category of information, extending restrictions to the very material the public relies on to learn when an administration is causing harm.”
“Federal employees do not surrender their First Amendment rights when they accept federal employment, and the public has a right to know about this administration’s abuses,” it said. Although the notice states that the form will be optional for agencies to use, “We know that will not be true. OPM will pressure agencies to make the NDA mandatory and then fire employees who refuse to sign it,” it said.
The statement in the notice that the form would not impose new obligations on employees “suggests that the proposed NDA will be used more broadly as a tool to chill speech amongst the federal workforce. In other words, if the NDA merely reiterates existing laws, then why do we need it?” said Michael Macomber, partner and chief executive officer at the Tully Rinckey PLLC firm.
He said proposed scope of “confidential government information” that employees would have to agree not to disclose “casts a wider net than what is already proscribed under applicable law and creates confusion as to what types of information may, or may not, be disclosed” and could contradict Civil Rights law and the Whistleblower Protection Act.
“The clearest example of how this will be used to punish unauthorized disclosure is that the government will rely on this document, signed by the employee, as the basis for proposed disciplinary action. The government will use this to rebut any argument that the employee ‘didn’t know that the information could not be disclosed’ or ‘that the information was in fact confidential,’” he said.
