Update: SB 23-053 passed the legislature and was sent to the governor’s desk on Tuesday, May 2.
By Jeffrey A. Roberts
CFOIC Executive Director
A bill that restricts governments’ use of nondisclosure agreements to silence public employees in Colorado earned bipartisan support in a Senate committee Thursday.
“This is just a fundamental principle that government should be conducted in the light,” said Sen. Barbara Kirkmeyer, the Brighton Republican who introduced Senate Bill 23-053. “We shouldn’t be muzzling employees or government officials.”
Passed 4-1 by the Senate State, Veterans and Military Affairs Committee, the measure prohibits state agencies and local governments, including school districts, 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. Language added by the committee also permits NDAs to protect trade secrets and other confidential procurement information.
The legislation follows a November 2022 report in The Denver Gazette showing that Colorado has increasingly required employees to sign nondisclosure clauses in financial settlements they make with the state. The Gazette 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.”
The newspaper 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.”)
Testifying in support of SB 23-053, the executive director of the Colorado Freedom of Information Coalition said “the use of nondisclosure agreements to silence potential government whistleblowers is contrary to the spirit of Colorado’s open-government laws and the free speech clauses in the Colorado and U.S. constitutions.”
“Public employees must be free to talk about misconduct and malfeasance in government. Covering up problems with government-funded payouts doesn’t get those problems fixed. And the public is entitled to know what their government is doing.”
Anaya Robinson, senior policy strategist for the American Civil Liberties Union of Colorado, told the committee government employees “are entitled by their rights of free speech and association to protect their interests. Government censorship of unclassified information is an unconstitutional abridgement of free expression.”
Kirkmeyer tried unsuccessfully to address nondisclosure agreements for state employees in a 2021 bill that died in the Senate Judiciary Committee on a party-line vote.
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