On Friday, June 27, the National Whistleblower Center (NWC) submitted a formal comment to the Office of Personnel Management (OPM) regarding their proposed rulemaking that would allow federal agencies to require their employees to sign a Confidential Government Information Nondisclosure Agreements (NDA). These NDAs would forbid federal employees from disclosing any non-public information.
In the comment, NWC expressed firm opposition to the OPM’s NDA rulemaking, as it not only violates the Whistleblower Protection Act (WPA) protecting federal employees, as implemented by the Civil Service Reform Act (CSRA), but also violates the First Amendment rights of federal employees and the media.
Congressionally-enacted whistleblower protections make clear that government employees retain the right to make protected disclosures of fraud, waste, and abuse. NWC voiced that it is blatantly illegal for the executive branch to restrict those rights in violation of these laws. As the Supreme Court has time and time again affirmed, the First Amendment does not forbid, but rather empowers public disclosures of government misconduct.
“If the proposed NDA is adopted, it will send a chilling effect to every federal employee and prevent the public from learning about whistleblower disclosures that could have been made to the news media,” said David Colapinto, a whistleblower attorney and Co-Founder of NWC.
Colapinto emphasized the importance of preserving the media as an avenue for whistleblowing, as “numerous whistleblower complaints that have resulted in major reforms were initially ignored by federal agencies and the inspector generals.”
Just recently, the Drug Enforcement Agency (DEA) publicly admitted that their reason for referring a whistleblower complaint to the Department of Justice (DOJ) regarding the DEA’s fentanyl scandal in New Mexico was due to the significant media attention generated by an investigation published by the Associated Press. The AP’s investigation reports that the DEA not only left a 2023 whistleblower complaint unaddressed, but that it also ignored the whistleblower’s continual attempts to report it over three years. Public outcry generated by media attention is an effective way for whistleblowers to force government agencies to address corruption or wrongdoing.
NWC’s rejection of the proposed NDA emphasized the NDA’s chilling impact on whistleblowing, an integral component of ensuring democratic accountability across the government. As Colapinto emphasized, and as proven by the DEA’s case, “The government often ignores whistleblower disclosures, which requires federal employees to contact the news media to gain attention to complaints of wrongdoing… without the protection of whistleblower disclosures to the news media, countless scandals and violations of law will be swept under the rug.”
