The Government-wide Non-disclosure Agreement for All Federal Employees

by Jenny Blanchard

This week the Office of Personnel Management in Washington issued a draft proposal that would implement a government-wide non-disclosure agreement for all federal employees. Under this proposal, all new and current civil servants would be required to protect any "non-public, confidential, or proprietary information". The stated purpose of this requirement was to cut down on unauthorized leaks of information to the press and media, especially those that might threaten national security. Violators could face potential firing, civil penalties, and even criminal charges.

There are many inherent dangers to this proposal. It could undermine whistleblower protections. Employees could be easily intimidated, making them hesitant to report fraud or corruption. The use of the terms “confidential” and “non-public” are purposely broad and expansive, creating confusion among federal employees and empowering government officials to silence their critics.

We feel compelled to ask: Who owns information? Most certainly some information is private and confidential – your medical history, as an example. Job interviewers cannot ask questions that reveal protected characteristics such as race, religion, age, or disability status. At the national level, disclosing the identity of an intelligence agent immediately endangers lives. There are instances where we are compelled to safeguard information.

When the Freedom of Information Act was passed in 1966, this law gave any person the right to request access to the records of any government agency. Consumer groups have used this act to retrieve undisclosed reports on infant deaths linked to dangerous products. Investigative journalists obtained records revealing that the Department of Homeland Security was monitoring social media accounts to track dissent.

Going public with information has changed the course of events in our country. Daniel Ellsberg leaked the classified documents the Pentagon Papers, revealing that successive U.S. presidential administrations had systematically and secretly misled the American public and Congress about the scope and the likelihood of success in the Vietnam War. An employee of the U.S. Public Health Service named Peter Buxtun leaked information to the press to expose the Tuskegee Syphilis Study, an unethical, decades-long experiment on Black men.

The distinction between private and public information is far too complex to be reduced to this sweeping and authoritarian NDA. Most egregious of all, the NDA requirement inhibits the public’s right, our right, to know. This right to know is at the foundation of our democratic principles. It allows us to hold public officials accountable, it forces government agencies to operate transparently, and gives each one of us the power to make an informed decision. What we don’t know can most certainly hurt us