Everything Old is New Again

OPM’s “New” Non-Disclosure Agreement.

Silence is not novel for federal employees.  Federal workers serve the public, they frequently work with confidential or classified information, and they are mindful of their duty to protect that information.  We are all familiar with the age-old reminder - “Loose Lips Sink Ships.”  This phrase was first used by the U.S. government during World War II, reminding us of the consequences of information leaks.

Despite long-standing prohibitions against the disclosure of non-public, government information, the Office of Personnel Management (OPM) recently announced a new non-disclosure agreement (NDA) they hope will be used across the federal government.  OPM justifies the measure by pointing to a series of media leaks concerning military and law enforcement operations; however, as we will discuss, most of these situations are covered by existing federal law and regulation.

Let’s take a closer look at why OPM’s proposed NDA might not be necessary, and if not, what is the real motivation behind OPM’s latest announcement? 

The Current State of Affairs.

Federal employees are already prohibited from disclosing non-public, government information by numerous laws and regulations.  Examples include the following:

• 5 U.S.C. 552 and 5 U.S.C. 552a restrict the disclosure of personally identifiable information, national security information, trade secrets, business information, law enforcement records, and more.

• 18 U.S.C. 798 and 50 U.S.C. 783 prohibit disclosure of classified information.  (Employees who hold a security clearance have likely also signed a non-disclosure agreement that prohibits disclosure of classified information.) 

• 18 U.S.C. 1905 prohibits disclosure of proprietary information and certain other information of a confidential nature.  Examples may include trade secrets, processes, operations, style of work, or confidential statistical data.  

Government ethics regulations also limit the personal use of non-public, government information.  For example, 5 C.F.R. 2635.703 states that executive branch employees may not use non-public, government information to further their own private interests.  (Read this blog post to learn more about how employees can get in trouble by using non-public, government information in prediction markets: All Bets are Off).

Because these rules already exist, employees can be disciplined for violating them.  Your agency probably already has “unauthorized disclosure of information” (or some form of it) in their table of penalties. (A table of penalties is your agency’s internal human resources guidance that offers standardized penalties based on the type of employee misconduct).   

So, if employees are already prohibited from disclosing non-public, government information, why did OPM even bother? 

OPM’s Proposal.

OPM announced the proposed NDA on May 27, 2026.  It has been published on the Federal Register, and it is open for public comment until June 26, 2026.  OPM intends for the NDA to be a new government form that would be signed by federal employees and placed in their official personnel file.  As proposed, federal agencies would have the option to adopt the form, but they are not required to do so.  

The proposal would prohibit employees from disclosing “non-public, confidential, or proprietary information.”  This includes, but is not limited to, “information relating to internal agency operations, personnel matters, personally identifiable information (PII), personal health information (PHI), procurement processes, or any sensitive, pre-decision or deliberative material that is not currently publicly available.”  (OPM’s Proposed NDA) You will notice plenty of overlap with the categories of information mentioned above.  The proposed NDA also requires employees to report any known or suspected improper disclosures, and it states that the duty to safeguard confidential information continues even after federal employment ends. 

OPM justifies their proposal by citing recent media disclosures.  OPM states that employees of the Federal Bureau of Investigation (FBI) and the Department of Homeland Security (DHS) improperly disclosed planned immigration enforcement actions in 2025.  They mention another group of federal employees disclosed secret information about operations in Venezuela to the New York Times and the Washington Post in 2026.  They also claim the personal information of 4,500 ICE employees was disclosed, including “names, addresses, email addresses, phone numbers and job titles,” in 2026.  While I do not have the full details of each incident, it seems that those actions are already prohibited by existing federal law.  (For example, 18 U.S.C. 798 and 50 U.S.C. 783 would prohibit disclosure of classified information about Venezuela operations and 5 U.S.C. 552a would prohibit disclosure of personal information of ICE employees).

The Rub.

OPM claims their goal is to bring uniformity and consistency across the government; however, even they acknowledge that the proposed NDA does not create any new "substantive restrictions" and that there are "longstanding legal requirements" for employees to safeguard non-public, government information.  (OPM’s May 2026 Federal Register Notice)

The real purpose of the NDA seems to lie in its "Remedies" section.  This section reminds employees that not only can they can be fired for disclosing non-public, government information - they can also be barred from future federal employment or contractor positions.  While this is accurate (and not new), this public reminder will create a chilling effect. 

First, it will discourage employees from whistleblowing.  The Whistleblower Protection Act (WPA) protects "most federal employees who disclose government illegality, waste, corruption, and other misconduct."  The WPA protects disclosures to any audience (including the media) as long as the disclosure is not prohibited by law.  It is clear from their own justification that OPM's proposed NDA directly targets media disclosures.  To be fair, the NDA does state that it is not intended to limit an employee's ability to engage in whistleblowing but given the current culture of fear that exists in today’s federal workforce, this language does little to reassure.  

Second, the proposed NDA must be considered in light of other recent action by OPM. Earlier this year, OPM issued final regulations to implement Schedule Policy/Career (P/C) which will remove job protections from those employees who occupy "confidential, policy-determining, policy-making, or policy-advocating” positions. One protection they will lose is the ability to go to the Office of Special Counsel (OSC) to engage in whistleblowing. The WPA created OSC, an independent federal agency charged with investigating prohibited personnel practices, including whistleblowing. Employees in Schedule P/C will now be required to report concerns to their own agency – where the wrongdoing most likely occurred. OPM has also proposed regulations that would grant themselves authority to review suitability appeals, which are currently in the jurisdiction of the Merit Systems Protection Board (MSPB). You will notice that the proposed NDA specifically states that violation of the NDA may result in a "suitability action." So, if OPM's proposed regulations on suitability appeals are finalized, an employee violates the NDA, and a suitability action is taken, review of that action will go to OPM.  The employee will no longer be able to go to the MSPB and request a hearing.  (Quick reminder - Suitability is a determination that an individual is suited for federal employment based on their character and conduct.  A suitability action, which could include cancellation of eligibility, removal, cancellation of reinstatement eligibility, or debarment, occurs when someone is found to not be suitable for government service based on their character or conduct.).

Finally, we must also consider the impact of the proposed NDA on the First Amendment's protection of free speech.  OPM states that non-disclosure agreements are common practice in the private sector; however, those agreements are between two private parties - not a private citizen and the government.  The First Amendment limits the government's ability to restrict speech.  This means any NDA between the government and its federal workforce can (and should) be subjected to a different type of scrutiny than the routine private sector NDAs that OPM is trying to emulate.  (OPM’s May 2026 Press Release) To enact a broad speech ban for all federal employees, the government would have to “show that the interests of both potential audiences and a vast group of present and future employees in a broad range of present and future expression are outweighed by that expression's ‘necessary impact on the actual operation’ of the Government.”  United States v. Treasury Employees, 513 U.S. 454 (1995) Using a broadly worded NDA when the existing statutory and regulatory framework already safeguards government information will certainly raise free speech concerns.

What’s Next?

For now, the NDA is merely a proposal.  We will have to wait and see what (if any) final version is issued by OPM and which (if any) federal agencies adopt the form.

 Again, speech restrictions for federal employees are not new.  It is wise to ensure you are not violating the statutes and regulations mentioned above before disclosing non-public, government information to an external entity.  However, this proposed NDA is pushing us into new territory, and it is one to watch.