TAKE ACTION: NO GOVERNMENT-WIDE FEDERAL EMPLOYEE NDAs

How else can I take action?

Should I submit comments anonymously, or in my own name?

What should I say?

Note for federal employees:

How do I submit a comment?

What would the proposed document do?

Why should I submit a comment?

Share this guide and ask your friends, family, and colleagues to submit their own comments. Targeted asks can be more effective than general calls, so in addition to sharing the information with large groups you may be in, consider directly asking people you know well to submit a comment and discuss your views and offer to provide technical help if needed. Share your own comments in federal worker chats to inspire other federal workers!

● There are already NDAs and statutory provisions to protect sensitive information, and what this specific NDA adds to those protections is unclear.

● The full scope of types of information covered by the NDA is unclear, making it hard for federal employees to know whether or not they are violating it.

● Because the proposed NDA is so poorly written, some employees (or their supervisors) may conclude that they are prohibited from disclosures necessary for the conduct of their duties.

● The NDA contains language that could allow for punitive action and prior restraint even if an employee has not disclosed information deemed to be confidential under the agreement.

● The form claims to be voluntary, but states that employees can be fired for not signing it.

● The American public has a right to know how their government operates and spends their money, and this transparency is vital to a functioning democracy. The form seems designed to intimidate federal employees and prevent them from doing their duty to blow the whistle on potential waste, fraud, and abuse.

● Effective comments will generally directly address the specific questions OPM seeks comment about. If you have a comment that is not directly on point to those 10 questions, still try to frame the comment as associated with one of those 10 questions as best you can (question 10 is a catch-all for those that do not fit at all within the other questions). You do not need to respond to all 10 questions; rather, you should respond to those that are important to you. See the sample comment below.

● Focus on specific details. While general statements (e.g. federal employees do not need NDAs because they take an Oath of Office) are useful for reaching out to colleagues and the general public, they are less helpful in the official comment process. OPM may use overly general statements like this as grounds to dismiss a comment (e.g. the government does use NDAs for things like classified information, so it is rebuttable that federal employees never need NDAs).

● Explain the specific harms that the proposed NDA would cause, applied to specific work circumstances as appropriate.

● Put it in your own words. A comment that is copy and pasted a thousand times will probably only be considered once.

The decision on whether to submit a comment under your name or anonymously is a personal choice. The commenting form established for this NDA expressly provides for the ability to comment anonymously. If your comment includes information that your agency may construe as non-public, there may be a risk in associating your name with the comment.

To avoid potential allegations of ethics violations, such as misuse of position, you may want to omit your position title or employer in your comment. For example, do not say "I am an attorney at the Department of Education and I object to this NDA because it would make my job more difficult by [xyz]." Instead, you could say "This NDA would harm employees at the Department of Education by [xyz]" without stating that you yourself are impacted. Additionally, refrain from submitting comments using government-furnished equipment or during work hours.

Submit your comment by June 26, 2026 at https://www.federalregister.gov/documents/2026/05/27/2026-10471/confidential-government-information-nondisclosure-agreement#open-comment

Agencies are required to consider public comments. If an agency has failed to adequately consider the comments it received, a judge may determine subsequent agency action to violate the Administrative Procedures Act. Public comments may lead to changes, including withdrawal of the proposal. Even when public comments don't result in a change to the proposed document, they pave the way for future litigation and establishes a record that the public opposes the proposed action.

SAMPLE COMMENT

It is too early to make a decision. It will depend on what the final NDA (if any) looks like after the public comment period, the potential legal consequences of signing and not signing, and individual factors. For now, it's most effective to focus on fighting a poorly conceived NDA before it is implemented. If the NDA does get rolled out, we will provide guidance for you.

The proposed government-wide nondisclosure agreement (“draft NDA”) is misguided, ineffective, and poorly written. Detailed responses to some of OPM’s 10 specific questions are below:

With respect to question 1: There should not be a government-wide NDA and therefore there should be no scope of information covered by such an NDA. Federal NDAs at their best, should inform federal employees as to the specific equities and requirements involved with respect to the specific types of protected information they are likely to handle. The multivaried and complex nature of various protected information-types (including but not limited to Privacy Act information, confidential business information, and national security information) makes any attempt at a brief and all-encompassing NDA fraught, if not useless. Federal efforts are better directed at informing employees of the statutory and regulatory requirements regarding the handling of the specific sorts of sensitive information those employees maintain or encounter.

With respect to question 2: The draft NDA does not clearly communicate the types of information that would be subject to the non-disclosure requirements. At its core, the draft NDA implies that the scope of information covered is “non-public, confidential, or proprietary information” covered by the NDA to include categories of information “including, but not limited to” several enumerated items, that “should” not be released under applicable law. This including to but not limited to language provides employees no reasonable basis under which to conclude what information is covered or not covered by the NDA. Similarly, evaluative “should not” as opposed to absolute “shall not” language provides no basis to understand restrictions.

Worse, the actual restrictions imposed by the NDA regard “the laws, rules, regulations, and agency policies and procedures with which Employee must comply” as listed (again nonexhaustively) in Appendix A. While those statutes relate to information, they are not all information protection statutes. Indeed, one listed statute, the Freedom of Information Act (5 USC 552, FOIA), is an information transparency statute. The FOIA provides that agencies “shall make available to the public information” covered by the statute, and while it exempts and excludes categories of information from those disclosure requirements, the FOIA creates no disclosure prohibitions.

The notice and draft NDA show a clear lack of understanding of existing information protections that exist under law or regulation and create confusion rather than clarity. The notice states that “The proposed NDA does not create new substantive restrictions on employee speech or disclosure rights.” Yet the NDA broadly appears to be focused on precluding federal employees from disclosing deliberative pre-decisional information (see examples of incidents in the notice indicating the need for such NDAs, the description of nonpublic information, and the inclusion of the FOIA as a Confidential Government Information statute). No existing statute creates a substantive restriction on employee rights with respect to such deliberative and pre-decisional information. Common law in the civil discovery process creates rebuttable presumptions of privilege as to such information when requested under discovery, but create no prohibition. Similarly, the FOIA exempts information so protected under the common law from disclosure, but does not prohibit disclosure (moreover, it only so exempts in isolated circumstances where the release of such information would foreseeably harm limited interests that underly the common law discovery privilege in the first place).

These issues cannot be remedied on a government-wide basis. Again, federal efforts are best directed at specific guidance for specific categories of protected information.

As to question 3: Should OPM press forth on its misguided effort to create a government-wide NDA, Appendix A should be exhaustive and list every single law, regulation, or government-wide policy that protects information, such as the Archaeological Resources Protection Act and Native American Graves Protection and Repatriation Act. In any event, the FOIA should not be included as it does not prohibit the disclosure of information in any circumstance – it is a transparency statute not a prohibition statute.

As to question 4: I suggest that the draft NDA format and layout be adjusted to not exist.

As to question 7: There are no appropriate adverse actions for agencies to take if existing employees choose to not sign the draft NDA. The draft NDA is poorly written, unclear, and of nebulous legal effect. An employee signing this document has no reasonable basis to conclude what they are committing to, and may well conclude that they are prohibited from disclosures necessary for the conduct of their duties.

As to question 8: There are no appropriate adverse actions for agencies to take if new employees choose to not sign the draft NDA. The draft NDA is poorly written, unclear, and of nebulous legal effect. An employee signing this document has no reasonable basis to conclude what they are committing to, and may well conclude that they are prohibited from disclosures necessary for the conduct of their duties.

As to question 9: The NDA does not clearly communicate the potential consequences of refusing to sign the form nor whether signing the form is voluntary. It defies understanding to state, particularly for existing employees, that signing the form is voluntary, but that a consequence of not signing includes termination and debarment from future employment.

As to question 10: OPM should consider that the draft NDA is legally meaningless and if implemented will generate confusion and hamper government operations. The NDA both states that it creates no new substantive prohibitions and then insinuates that it covers wide expanses of information for which employees are not generally prohibited from making disclosures and references statutes, such as the FOIA, that have nothing to do with information protection. Congress has established by statute what information in government hands requires protection and non-disclosure. The OPEN Government Act establishes the presumption that government information is open by default. This NDA turns federal information management on its head to a presumption that federal information is closed by default.

An example of how this NDA inhibits government operations is agency settlement discussions with outside parties. Such settlement discussions inherently involve consideration of nonpublic information (under what circumstances will the agency accept settlement) that only becomes public when a settlement offer is conveyed to the outside party. Under this NDA, it is unclear whether, when, and how the agency official conveying that offer may do so outside the government. Such circumstances are replete with other functions across governmental operations.

In conclusion, the draft NDA is poorly written, confusing, of unclear legal effect, and frankly offensive to the American public. It should be withdrawn in its entirety. Valid federal efforts to prevent disclosure of statutorily-protected information should focus on training specific to each such form of information.

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