Federal agencies are trying to discourage potential whistleblowers with their troubling practice of asking employees to sign away their right to communicate with Congress, the media and the general public about administrative matters not covered under official secrets law or other confidentiality requirements.
The practice, done with apparent White House encouragement, is wrong and must stop.
The policy of requiring employees to sign nondisclosure agreements did not begin with the Trump administration, and how far the alarming practice has spread is unclear. But two recent inspector general reports suggest it is becoming a problem, especially for would-be whistleblowers.
In March the inspector general for the General Services Administration, the government’s housekeeping agency, found the GSA had a series of written and unwritten rules about what employees could communicate to Congress. It also discovered that the agency was making those rules more restrictive, and that it failed to inform employees of their legal right to tell Congress and the inspector general when they have concerns about fraud, waste or abuse of government powers. That right provides a vital backstop in protecting citizens from an overreaching or wasteful government when the official brakes built into the system fail.
That right also is written into the 2012 Whistleblower Protection Enhancement Act, which specifically requires that all federal agencies must include in any “nondisclosure policies, forms, and agreements ... a specific statement on individuals’ obligations and rights concerning disclosure of evidence of fraud, waste, or abuse.”
The GSA inspector general found that none of the agency’s NDAs contained this required language.
Elsewhere, the inspector general for the Department of Homeland Security recently found that only 25 of 88 NDAs it examined had the required whistleblower-protection language. The omission, the IG’s report said, “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 (Office of Inspector General).”
Congress, too, could be left in the dark. In February a House subcommittee on government operations issued a bipartisan news release criticizing the Department of Homeland Security for failing to respond to a request for “documents relating to the Trump administration’s widespread use of nondisclosure agreements.”
Such secrecy naturally breeds suspicion while transparency could be reassuring. Given the troubling revelations about the use of NDAs in President Trump’s private and business life, some skepticism is reasonable.
Evidence that the NDAs, including those covering personnel actions, are intended to keep the ordinary business of the executive branch secret is found in the DHS inspector general’s report. The report found that DHS uses a standard personnel settlement agreement form that requires that the employee “shall not make any comments or take any actions with the effect of disparaging or undermining [the department], including undermining the operations or leadership of [his or her unit].”
This kind of nondisclosure agreement runs counter to the openness that is necessary to protect the public interest in a fair and efficient government. It also contradicts the policy of the Justice Department, in the interests of open government, against signing secret agreements or consent decrees except in rare cases.
There is no justification for any government agency to require employees to sign agreements that they will not say anything embarrassing about them. This practice must stop.