Trump likes nondisclosure agreements, but should federal agencies use secrecy pacts?
Posted By fedpractice || 24-Aug-2018
As we know from President Trump’s relationships with adult film and reality television stars, he likes nondisclosure agreements. If you had his character and did his deeds, you probably wouldn’t want them disclosed either.
But should NDAs, as the agreements are known, be used by government agencies? Using them to keep illicit sexual affairs secret is one thing. Pushing public employees into such agreements, outside of classified and sensitive information situations, is quite another.
A new report by the Department of Homeland Security’s Office of Inspector General covers the failure of officials to notify employees confronted with secrecy pacts of their rights under whistleblower protection law.
But the inspector general didn’t explore a more fundamental point: Do secrecy agreements, in personnel settlements for example, have an appropriate role in government if confidential information is not involved?
If there’s a good reason for the pacts, DHS won’t say what it is.
The report says the Whistleblower Protection Enhancement Act of 2012 (WPEA) requires “that Federal agencies’ non-disclosure policies, forms, and agreements include a specific statement on individuals’ obligations and rights concerning disclosure of evidence of fraud, waste, or abuse to permissible recipients.” Those recipients include the inspector general and Congress.
Yet many DHS forms and agreements contain provisions that could discourage whistleblowers from reporting abuse, because the required statement was not included. The inspector general found just 25 of 88 settlement agreements included the required statement about employee rights.
Omitting it “could lead to confusion about what information may be disclosed, which could deter reporting of fraud, waste, or abuse and impede the work of the DHS OIG,” the report said. “In addition, omitting the WPEA statement runs counter to fostering an open and transparent environment that welcomes disclosures and protects whistleblowers.” Homeland Security told the inspector general that forms without the required statement will be “updated in the near future.”
The Homeland Security report is one in a series of actions involving government nondisclosure agreements. In March, the General Services Administration’s inspector generalconcluded that agency did not include the required whistleblower protection language in nondisclosure policies. In February, Reps. Mark Meadows (R-N.C.) and Gerald E. Connolly (Va.), the chairman and ranking Democrat, respectively, of the House Oversight subcommittee on government operations, asked Homeland Security, according to a news release, for “documents relating to the Trump Administration’s widespread use of nondisclosure agreements, but DHS failed to produce documents or provide responsive information.”
In April, Connolly and Rep. Elijah E. Cummings (Md.), the top Democrat on the House Oversight and Government Reform Committee, urged the panel to subpoena the documents. Republicans refused.
Elizabeth Hempowicz, public policy director for the Project on Government Oversight, complained that “NDAs are a catchall that chill more speech than necessary and, as highlighted by the DHS IG report, often don’t meet the bare minimum standards to attempt to counteract that chilling. I find that to be particularly exacerbating since it is incredibly easy to include the few lines required by the law to mitigate the threat these types of agreements pose to the right of federal employees or former federal employees to blow the whistle on fraud, waste, or abuse within the government.”
Preventing employees from disclosing confidential and sensitive information is a no-brainer. But a more essential question is why should information that is critical of or embarrassing to an agency have the cover of a nondisclosure agreement? Cummings pointed to this basic issue when he spoke of “the Trump administration’s abuse of nondisclosure agreements.”
Page 5 of the DHS inspector general’s report suggests the department uses nondisclosure agreements to avoid criticism. It cites a personnel settlement agreement template that says the employee “shall not make any comments or take any actions with the effect of disparaging or undermining [DHS], including undermining the operations or leadership of [the component].”
The department’s public affairs office would not answer Federal Insider questions about that language or the appropriate use of secrecy agreements.
Heather White did respond, forcefully and with legal precision. A partner with the Federal Practice Group, a law firm that specializes in federal employment law, she said it is not right for government agencies to use nondisclosure agreements outside of classified and sensitive information situations.
“It goes against public policy in favor of transparency and public accountability as the foundations of good government,” White argued.
White cited Justice Department regulations that say it “will not enter into final settlement agreements or consent decrees that are subject to confidentiality provisions, nor will it seek or concur in the sealing of such documents.” Justice represents all agencies in lawsuits, so its regulations would apply across government.
“I don’t regard protecting an agency from embarrassment as valid,” White said. “And I don’t see any other valid reason” to use nondisclosure agreements in nonconfidential cases.
Protecting officials from uncomfortable information doesn’t count.