Donald Gainsborough stands at the intersection of high-stakes policy and the granular realities of federal administration as the leader of Government Curated. With a career spent navigating the labyrinthine halls of Washington, he has become a leading voice on the legislative shifts that dictate how our government operates behind closed doors. Today, he provides a deep dive into the Office of Personnel Management’s move to extend nondisclosure agreements to a broader segment of the federal workforce. His perspective is essential for understanding how these proposed guardrails might either protect sensitive operations or inadvertently silence the very people charged with serving the public good.
Our discussion explores the transition from specialized security clearances like the SF-312 to a broader regime governing what the administration calls confidential government information. We delve into the friction between private-sector business practices and the unique public service mandate, while also examining the risks of vague terminology that might inadvertently silence whistleblowers. Finally, we look at the lessons that can be learned from the existing cleared workforce to ensure that any new policy reinforces accountability rather than eroding public trust.
While classified information is already strictly protected under the SF-312, how does this new proposal fundamentally change the landscape for the average federal employee?
For hundreds of thousands of federal employees, signing a nondisclosure agreement isn’t a new concept, but the SF-312 is a very specific legal tool tied exclusively to national security. This new proposal pushes beyond those clear, high-stakes boundaries into the much murkier territory of what the administration calls confidential government information. We are looking at a scenario where everyday internal deliberations—the kind of talk that happens in every agency hallway—could suddenly carry the weight of a legally binding gag order. It creates a palpable tension for civil servants because the definition of what is sensitive is suddenly expanding to include things that were previously considered routine. This isn’t just about protecting spies and high-level secrets anymore; it is about shielding the day-to-day gears of bureaucracy from unauthorized public view.
OPM Director Scott Kupor has justified these requirements by pointing to private-sector standards; do you believe that a business-centric model is appropriate for the federal workforce?
There is a logical management argument to what Kupor is proposing, as federal agencies simply cannot function effectively if every internal investigation or draft regulation is leaked before it is finalized. In the private sector, proprietary data is the lifeblood of competition, and few people question the need for confidentiality to protect the interests of shareholders. However, federal employees serve the public interest rather than a corporate board, and that distinction changes the moral and legal calculus of the job. When you treat a government agency like a private firm, you risk losing the very accountability that the American taxpayer demands from their government. It is a delicate balance between needing a private space for candid planning and honoring the fundamental right of the public to know how decisions are being made in their name.
What are the specific risks of using broad terms like “confidential government information” in these new legal agreements?
The real danger lies in the fog of uncertainty that settles over an employee when the rules governing their speech are not crystal clear. If a staffer is handling a document regarding cybersecurity vulnerabilities or sensitive law enforcement operations, they usually know to keep it quiet, but the term “confidential government information” is a massive catch-all. We have already seen how the existing system of Controlled Unclassified Information, or CUI, causes widespread confusion across different agencies, and expanding that could lead to a chilling effect where people are simply too afraid to speak at all. There is a very real fear among critics that these agreements could be weaponized to penalize dissent or to hide information that has no legitimate reason to stay secret. Without strict definitions, an NDA can easily transform from a protective shield for the agency into a muzzle for the individual employee.
How can the administration ensure that these broad nondisclosure agreements do not inadvertently dismantle the legal protections currently enjoyed by whistleblowers?
The current draft language explicitly states that the rights of employees to make protected disclosures to inspectors general or Congress would be preserved, but implementation is where these promises often fall apart. Employees need more than just a line in a contract; they need to feel a rock-solid confidence that following their conscience won’t result in a career-ending breach of contract. For this expansion to work, the policy must reinforce the existing framework of whistleblower laws rather than overlaying a new layer of fear that complicates those protections. If a worker is forced to choose between a signed document that says “do not disclose” and their duty to report misconduct, many will choose the safer path of silence. To prevent this, the government must provide mandatory, clear-cut training that shows exactly how a legal disclosure can still be made within this new restrictive environment.
Looking at the experience of those who already handle classified data, what lessons should federal leaders apply to this broader expansion of NDAs?
The cleared workforce generally accepts strict disclosure restrictions because those rules are accompanied by clearly defined categories of information and established processes for adjudication. When an employee signs for an SF-312, they understand where the red lines are drawn, which reduces the daily anxiety of handling sensitive material. If the administration wants this broader framework to be successful and trusted, they must adopt those same principles of clarity, consistency, and transparency. You cannot simply hand a staffer a piece of paper and tell them to keep internal deliberations secret without giving them the tools to distinguish between what is protected and what is public. A poorly defined regime will only lead to unnecessary legal challenges and a breakdown in the candid internal communication that agencies rely on to solve complex problems.
What is your forecast for the future of federal transparency if these nondisclosure agreements become a standard requirement for all government employees?
If this proposal moves forward without the strict guardrails of clarity and robust oversight, we are likely to see a significant drop in the frequency of internal “truth-telling” within our agencies, leading to a more brittle and less adaptive federal workforce. However, if the administration successfully mirrors the disciplined approach used for security clearances, we could see a more secure environment where sensitive procurement strategies and internal policy drafts are protected from premature leaks that erode public confidence. The ultimate outcome hinges on whether the government chooses to prioritize genuine accountability or if it merely seeks to streamline its control over the flow of information. In the long run, I expect this will trigger a series of high-profile legal battles that will eventually force the courts to define the exact boundaries of what “confidential” truly means in a modern democracy. We are entering an era where the culture of the federal office may start to feel more like a private executive suite, and the success of that shift depends entirely on maintaining the public’s trust.
