Comment from Claims and Issues, Inc.

06.26.26 Comment to Confidential Government Information Nondisclosure Agreement. regulations.gov Re:PROPOSED Confidential Government Information Nondisclosure Agreement. Docket ID:OPM-2026-0100-0004. AGENCY:Office of Personnel Management. ACTION:Notice with request for comment. This Notice and PROPOSED Confidential Government Information Nondisclosure Agreement suffer from a number of infirmities that prevent approval of the PROPOSED Nondisclosure Agreement. Some of the infirmities are self-inflicted.. This Comment addresses a couple of those issues. The definition of "Confidential Government Information" in the PROPOSED "Non-Disclosure [sic] Agreement is materially different from the definition in the Notice, and it is ambiguous. The PROPOSED draft nondisclosure agreement apparently linked at a separate location than the Notice of it, provides one definition of "collectively 'Confidential Government Information'": non-public, confidential, or proprietary information, whether or not marked as such, which may include, but not be limited to, information relating to internal agency operations, personnel matters, personally identifiable information (PII), personal health information (PHI), procurement processes, or any sensitive, pre-decisional or deliberative material that is not currently publicly available and should not be disclosed under applicable law, Federal regulation, or government-wide policy (collectively "Confidential Government Information"). (Emphasis added.) In a second definition, the term, "Confidential Government Information," is defined differently however in your Notice: OPM is defining ‘‘Confidential Government Information’’ for purposes of the NDA as all non- public, confidential, or proprietary information, to include, but not be limited to, information relating to internal agency operations, personnel matters, procurement processes, or any sensitive, pre-decisional or deliberative material that is not currently publicly available and should not be disclosed under applicable law. 91 F.R. at 31479. The PROPOSED "Non-Disclosure [sic] Agreement" and the Notice offer irreconcilable and conflicting Definitions of "Confidential Government Information" which a Federal employee is supposed to agree not to disclose. This is ambiguous on the face of the conflicting documents as to what every Federal employee would be required to agree to, if they sign your PROPOSED 'agreement' document. Standing on its own, the term "government-wide policy" (which I have italicized above) is not defined in the draft PROPOSED "Non-disclosure [sic] Agreement." The term on its face is so vague and ambiguous as to impermissibly chill both the Constitutionally protected freedom of expression of proposed Federal employees and the Constitutionally protected freedom of the press whose sources of truth would be rounded up and chilled by this 'agreement.' Other ambiguities likewise render your PROPOSED nondisclosure agreement fraudulent and deceptive; in violation of the American Procedure Act as arbitrary and capricious, and contrary to law; and these ambiguities further render the document unconstitutional. These ambiguities in a document you PROPOSE as an agreement to bind Federal Employees cannot be defined by a reasonable person who would consider entering into the agreement. The agreement itself provides no definition or context explaining the meaning of the terms to which you PROPOSE all Federal employees to agree, including: •any known or suspected "compromise of these materials." •as authorized by "applicable Agency policies and procedures." •"compromise or impede the Agency's mission." •"the employee obligations, rights, or liabilities created by existing statute or Executive Order." These provisions have echoes of the record in a recent Nondisclosure Agreement or NDA case in the Southern District of New York. The record in that case reflects that the political campaign that wrote the NDA in that case, also attempted to enforce it in an earlier proceeding by alleging that a former campaign employee violated the NDA “‘when she and her attorneys made statements about her lawsuit. …’” Denson v. Donald J. Trump For President, Inc., 530 F. Supp. 3d 412, 423 (S.D.N.Y. 2021) (emphasis added). In other words, the Campaign used this provision to attempt to restrict Denson's use of any and all information she had gained, i.e., the Campaign argued in an earlier proceeding that this provision stopped her from speaking, the Court pointed out. In the case at bar, the Court ruled that the threatened enforcement of this sort of contract restricts speech. Denson, 530 F. Supp. 3d at 427. The Court went on to hold in that case that such a provision is invalid and unenforceable. SEE ATTACHED FILE. THANK YOU.