White House Proposes Governmentwide NDA for Federal Workers

The Trump administration is moving to tighten controls on the disclosure of internal government information by proposing a standardized nondisclosure agreement (NDA) for federal employees across agencies, according to a notice published May 27 by the U.S. Office of Personnel Management (OPM).

According to a draft copy of the proposed NDA, federal workers at participating agencies would be asked to acknowledge restrictions on sharing a broad range of nonpublic information, including sensitive internal deliberations, personnel matters, procurement details, and other confidential government material, and vow to inform their agency if they learn of others making such a disclosure.

The proposal is aimed at curbing leaks to the media and promoting consistency in how agencies handle confidentiality obligations. The requirements would apply to both current employees and new hires at agencies that opt in. The NDAs would remain in place even after federal employees change jobs or employers, and violations of the NDA could result in disciplinary action, including terminations or civil and criminal penalties.

If finalized, the NDA would become an official government form that agencies could use as a standard part of the employee onboarding process. The draft NDA says that signing it is voluntary, but failure to sign may result in removal from federal service and potential debarment.

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Whistleblower Rights at Issue

While OPM says the agreement would reinforce existing rules and preserve legally protected whistleblower disclosures, legal experts warn the policy could chill employee speech and potentially conflict with First Amendment protections and federal whistleblower laws.

OPM said that federal employees are subject to longstanding legal requirements to safeguard nonpublic information obtained through their official duties and do not have discretion to disclose confidential government information outside of narrow circumstances.

“The NDA comes amid a series of recent unauthorized disclosures involving sensitive government information, including leaks related to planned immigration enforcement operations, disclosures of confidential operational details prior to a U.S. action overseas, and the release of personal information belonging to approximately 4,500 ICE employees, including frontline enforcement personnel,” the agency said.

“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. Unauthorized disclosures of confidential information disrupt agency operations and erode public trust, he said.

OPM said the NDA would not create new substantive restrictions on employee speech or disclosure rights but instead would formalize acknowledgment of obligations that already exist under federal law. The draft NDA includes language stating that it does not conflict with the Whistleblower Protection Act, and that whistleblowers may continue to disclose information either to Congress or their agency’s inspector general’s office.

Stephanie Rapp-Tully, an attorney in the Washington, D.C., office of Tully Rinckey, agreed that restrictions already exist around what federal employees can say about what they learn at their job, such as with classified information, for example.

“But the language in the proposed NDA is still overbroad,” she said. “I do think there is a way to create an NDA that isn’t overbroad and wouldn’t be problematic. It needs to be more narrowly tailored and be clear that it does not impede any employee rights and is not meant to create an obstacle to whistleblower rights.”

Rapp-Tully said she is concerned about the NDA’s potential to impact whistleblower rights. “It will come down to how it is enforced,” she said. “There is already a fear of retaliation for any whistleblower. Will this be an additional layer of fear? It could have a chilling effect on whistleblowing.”

There are also potential First Amendment violations, she said. “Federal employees do not relinquish their First Amendment rights just because they are federal employees. First Amendment rights will be a careful consideration, particularly if an employee faces proposed discipline as a result of the NDA.”

Rapp-Tully said that there have been instances in the past when federal employee clients were afraid to speak to their own lawyers because of different types of agency restrictions about sharing information.

“I’m worried that this might confuse or frustrate the ability for clients to openly communicate and share information with their lawyers, which is protected,” she said.

Before signing an NDA, employees should consider the scope of information covered in the agreement, the duration, and the types of prohibited activities involved, attorneys recommended.

OPM is requesting feedback by June 26 on what the scope of the proposed NDA should cover; if the NDA clearly indicates what information is subject to the requirements; if there is sufficient notice for impacted employees; and how agencies should address instances of employees refusing to sign the agreement.