By Adam Pagnucco.
On Tuesday, I wrote about MCPS’s practice of requiring some stakeholders who participate in its activities to sign non-disclosure agreements (NDAs). While there are differences in the language of these NDAs, the ones I have seen entitle MCPS to injunctions, damages, legal costs and attorney’s fees from those who violate them. I also discussed how I had asked MCPS to respond to questions two weeks before I posted the column – but had heard nothing.
Now MCPS has responded.
These are the six questions I asked MCPS.
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?
This is the entire response from MCPS.
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Confidentiality agreements are a natural action for any organization involved in complex and impactful decision-making. Some circumstances when we use a confidentiality agreement to safeguard proprietary information, such as during a procurement process, and to encourage open dialogue and feedback while ensuring the confidentiality of information shared during the deliberative process.
Any confidentiality agreement is governed by Maryland law and does not prohibit the release of information that would be disclosable under the MPIA.
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MCPS answered one question, partially answered another and did not respond to the other four. I have two comments.
First, the NDAs I have seen contain no language explicitly referring to the Maryland Public Information Act (MPIA). Instead, the NDAs prohibit the disclosure of “confidential information” related to activities they cover and make non-specific references to applicable law(s). How is a signer supposed to know that this prohibition does not include materials releasable under the MPIA?
Second, such vague assurances and outright secrecy concerning these NDAs are inadequate for an organization that collects billions of taxpayer dollars every year. Generally speaking, information in their custody is not theirs – it’s ours. We paid for it; it’s OURS.
Now that said, the MPIA is not absolute. It contains exceptions to disclosure, including but not limited to:
Personnel records
Retirement records
Student records
Medical records
Home addresses and phone numbers of employees
Trade secrets, confidential business and financial information
Individual person financial records
Distribution lists
Plus more…
MCPS has every right to protect records of this kind. In fact, it is explicitly authorized to do so under state law. In such circumstances, NDAs may be appropriate. But how can truly confidential information be protected while not allowing NDAs to be used to thwart the release of legitimate public information?
MCPS must establish a policy on the appropriate use of NDAs. (Lord knows they have policies on all kinds of other things!) The formulation of that policy should include public input. The policy must tie the use of NDAs to exceptions to the MPIA and prohibit use of NDAs to prevent the release of information not covered by those exceptions. The policy must be approved by the Board of Education and published on MCPS’s website. And when NDAs are used in the future, MCPS must say that they are being used and cite the provisions of its policy justifying their use.
Failure by MCPS to proceed in this way risks abuse, secrecy, deterrence of participation by stakeholders, distrust and ultimately shame in the eyes of the public.