By Adam Pagnucco.
MCPS has been using non-disclosure agreements (NDAs) to protect information distributed in some of its activities. More than two weeks ago, I sent MCPS a list of questions about these NDAs. As of this writing, they have not responded.
I have seen multiple versions of these NDAs but I have not received any materials covered by them. To avoid risk to my sources, I will not disclose their exact language or the activities they cover. Let’s describe them in general terms.
There is some variation in the language of the NDAs. Those I have seen contain the following commonalities. The NDAs describe materials that MCPS and/or a vendor deem to be proprietary and/or confidential. Signers agree to keep them confidential and not share them with anyone who is not directly involved in the activities covered by the NDA. This obligation is continuing and does not expire with the completion of the activities in the NDA.
The NDAs contain an enforcement section. MCPS is entitled to seek an injunction stopping a breach or threat of breach. Furthermore, MCPS is entitled to recovery for damages, costs and attorney’s fees from signers who violate them. This places signers in clear legal jeopardy if they violate the NDAs.
On May 12, I sent MCPS the following questions about the NDAs.
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How long has MCPS been using NDAs?
Under what circumstances are NDAs used?
Has the use of NDAs expanded recently?
Do any NDAs prohibit release of information disclosable under the Maryland Public Information Act?
Are MCPS and county government employees required to sign NDAs?
Has MCPS ever pursued sanctions against a violator of an NDA?
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As of this writing, I have not received a response.
I have mixed feelings about this. I believe MCPS has been using NDAs for a long time and under some circumstances, they may be appropriate. For example, superintendent searches require confidentiality because many candidates won’t want their current employers to know they are looking for work. Certain legal issues and procurements require confidentiality too. And while MCPS is covered by the Maryland Public Information Act, that act contains many exceptions to disclosure.
That said, the use of NDAs should be an exception and not a rule. MCPS is financed by taxpayers and should follow a general practice of disclosure. And while I worked as a chief of staff at the county council for nearly four years, I was never asked to sign an NDA. I did sign attendance sheets for closed sessions but I don’t remember them containing legal sanctions. (I never violated closed session requirements in my time on the council.)
There is another issue. If representatives of outside organizations are signing NDAs, they prohibit these people from consulting with other folks in their organizations regarding any materials covered by the NDA. So these folks are forced to assume what the positions of their organizations will be. Some representatives will be comfortable with that. Others will not.
Finally, some prospective signers may be deterred from participating in MCPS activities if they are required to sign NDAs with legal sanctions in them. Is that what MCPS wants?
Depending on how these NDAs are used, these issues may be big or little. But MCPS has not answered my questions after two weeks. Most media outlets would not be so patient! If MCPS does send me answers, I’ll publish them. But in the meantime, Superintendent Thomas Taylor may wish to remind his subordinates of his oft-stated value of the importance of transparency in the school system.