Comment from Adam C

Thank you for the opportunity to comment on the proposed “Confidential Government Information Nondisclosure Agreement” (NDA). The following responses address the ten questions posed in the Federal Register notice. Based on the analysis below, the NDA should be withdrawn in its entirety and not adopted in any form. 1. The scope of “Confidential Government Information” is overbroad. Terms such as “non public,” “sensitive,” “pre decisional,” and “deliberative” are not legally recognized nondisclosure categories. FOIA establishes that much non public information is releasable (5 U.S.C. § 552(a)), and Exemption 5 is discretionary. The definition should not be adopted because it exceeds statutory authority. 2. The NDA does not clearly communicate what information is subject to nondisclosure. The definition is vague and risks sweeping in nearly all internal agency communications. This violates the Anti Gag Rule (Pub. L. 115 272) and creates confusion about employees’ rights under the Whistleblower Protection Act. The NDA should be withdrawn because it cannot be implemented without chilling lawful disclosures. 3. Appendix A is incomplete and inconsistent. Attempting to restate statutory obligations in an NDA creates confusion and legal risk. Employees should be directed to existing law rather than a new, unnecessary agreement. This structural flaw supports withdrawing the NDA entirely. 4. The layout obscures critical legal protections. The whistleblower and congressional disclosure provisions are buried mid text. This design choice undermines statutory rights and reinforces the need to withdraw the NDA rather than revise it. 5. The Privacy Act statement is incomplete. It does not clearly explain how refusal to sign will be used, whether refusal will be shared with other agencies, or whether refusal will be recorded as a suitability issue. This does not satisfy 5 U.S.C. § 552a(e)(3). The NDA should be withdrawn because it cannot be implemented without violating the Privacy Act. 6. The OPM/GOVT 1 SORN does not clearly contemplate records documenting refusal to sign an NDA. Suitability records are typically maintained under OPM/CENTRAL 9. This mismatch raises compliance concerns that cannot be resolved through minor edits. The NDA should be withdrawn. 7. Agencies should not take adverse action against existing employees who decline to sign. Threatening removal or debarment conflicts with the Whistleblower Protection Act, the Lloyd–La Follette Act, and the Anti Gag Rule. Because the NDA is coercive by design, it should be withdrawn. 8. Agencies should not condition employment on signing this NDA. Conditioning employment on waiving statutory rights raises constitutional concerns and is inconsistent with Perry v. Sindermann, 408 U.S. 593 (1972). This defect cannot be corrected without abandoning the NDA. 9. The NDA does not clearly communicate the consequences of refusal to sign. It states that signing is voluntary, yet also states that refusal may result in removal. A contract signed under threat of removal is not voluntary. This contradiction is inherent to the NDA’s structure and supports withdrawing it entirely. 10. OPM should withdraw the NDA. It is unnecessary, overbroad, and inconsistent with federal law. Existing statutes already govern all categories of sensitive information referenced in the NDA. The NDA adds confusion, expands agency authority beyond statutory limits, and risks chilling lawful disclosures.