By Jeffrey A. Roberts
CFOIC Executive Director
A state lawmaker is trying again to bar the use of nondisclosure agreements to silence public employees in Colorado, this time applying the prohibition to local governments as well as the state.
“Nondisclosure agreements imposed on government employees or prospective employees that effectively prohibit government employees from disclosing details about their government service obstruct … fundamental principles of government transparency and public accountability,” says Senate Bill 23-053, introduced by Republican Sen. Barbara Kirkmeyer of Brighton.
“The details of public business should not be hidden from public view by means of nondisclosure agreements imposed on government employees as a condition of their employment or in connection with their leaving government service.”
The bill comes two months after The Denver Gazette’s David Migoya reported that Colorado is increasingly requiring employees to sign nondisclosure clauses in financial settlements they make with the state. Migoya found more than 80 settlement agreements with state employees totaling more than $4 million, “each with a non-disclosure clause preventing them from discussing it with anyone.”
“Confidentiality agreements have the potential to bury evidence and prevent investigations of crimes, discrimination, sexual harassment and wage inequality, leading to a growing chorus of lawmakers and advocacy groups calling for them to be abolished,” he wrote.
The Gazette story pointed out that, under the Colorado Open Records Act, governments cannot hide the amount of a settlement or the name of the employee, but the underlying issues behind a settlement might be shrouded in secrecy unless they are revealed in a lawsuit or an official complaint. (In a 1999 opinion, the Colorado Court of Appeals wrote: “An agreement by a government entity that information in public records will remain confidential is insufficient to transform a public record into a private one.”)
Kirkmeyer unsuccessfully tried to address nondisclosure agreements for state employees in a 2021 bill that died in the Senate Judiciary Committee on a party-line vote.
The new proposal prohibits any state agency or institution, or any school district or local government entity, from requiring employees or prospective employees to sign agreements that keep them from disclosing “factual circumstances” concerning their employment.
Exceptions allow for nondisclosure agreements when the circumstances of employment “reasonably implicate privacy interests” of the employee or it concerns a matter required to be kept confidential by state or federal law.
The bill also prohibits government entities from retaliating against an employee or a prospective employee for not signing an agreement barred by the statute.
SB 23-053 so far doesn’t have a Democratic co-sponsor, which weakens its chances in the Democratic-controlled legislature.
Follow the Colorado Freedom of Information Coalition on Twitter @CoFOIC. Like CFOIC’s Facebook page. Visit CFOIC’s legislature page to track bills in the General Assembly that could affect the flow or availability of information in Colorado.