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Evaluation of the Defense Nuclear Facilities Safety Board's Use of Anti-gag Clauses in Nondisclosure Agreements

Report Information

Date Issued
Report Number
OIG-DNFSB-25-E-01
Report Type
Inspection / Evaluation
Description
The Office of the Inspector General (OIG) found that the Defense Nuclear Facilities Safety Board’s (DNFSB’s) nondisclosure agreements (NDAs) complied with 5 United States Code Section 2302(b)(13) by including anti-gag clauses in the NDAs that were issued between April 2019 and April 2024.However, the OIG also reviewed the DNFSB’s internal control environment over the broader period of 2012 through 2024 and identified three internal control findings. The OIG found that between 2012 and 2019, the DNFSB issued incomplete, ineffective, and inconsistent NDAs; the issuance of NDAs was not systematic and lacked transparency; and, the DNFSB did not communicate whistleblower protections in a timely manner.The OIG makes four recommendations related to the DNFSB’s use and management of NDAs.
Joint Report
Yes
Participating OIG
Nuclear Regulatory Commission OIG
Agency Wide
Yes (agency-wide)
Questioned Costs
$0
Funds for Better Use
$0
View report on Oversight.gov

Recommendations

Develop and implement a policy or procedure for NDAs that:• Establishes a standard format for NDAs; and,• Requires the Office of the General Counsel to review all NDAs and confirm they contain required language regarding whistleblower protections.

Agency Response Dated May 5, 2025: Agree; The Defense Nuclear Facilities Safety Board (DNFSB) has developed Directive 630, which generally prohibits the use of NDAs that restrict or discourage whistleblower disclosures. The Directive specifically requires that all NDAs include explicit whistleblower protection language to ensure alignment with federal statutes and the Agency’s commitment to transparency and accountability.<br />
OIG Analysis: The OIG reviewed Directive 630 and verified it contains a format for NDAs and requires the OGC’s review for all NDAs to confirm they contain the required language. Therefore, this recommendation is now closed.

Develop and document criteria outlining the circumstances under which the agency would ask employees to sign an NDA.

Agency Response Dated May 5, 2025: Agree; Directive 630, will address the use of NDAs at the DNFSB. Importantly, it ensures that any such agreements will include language that protects employees&#039; rights to report wrongdoing, consistent with whistleblower protection laws and federal policy. <br />
OIG Analysis: The OIG reviewed Directive 630 and verified it outlines the circumstances under which the agency would ask employees to sign an NDA. Therefore, this recommendation is now closed.

Individually inform current staff members who previously signed NDAs that did not contain the anti-gag provision, in writing, of their whistleblower rights.

Agency Response Dated May 5, 2025: Agree; To confirm that the two individuals previously identified as having signed NDAs lacking the appropriate anti-gag provisions have been addressed as follows: <br />
- One individual was notified in writing via email. The communication included the required whistleblower protection language, and the employee acknowledged receipt.<br />
- The second individual has since departed the Agency. DNFSB made multiple attempts to contact the former<br />
employee but was ultimately unsuccessful.<br />
OIG Analysis: The OIG reviewed the notification made to the existing DNFSB employee and confirmed the individual was made aware of their whistleblower rights. The OIG also acknowledges the multiple attempts to inform the second <br />
individual of their whistleblower rights and determined no further action was required considering the agency’s stance<br />
on not enforcing that particular NDA. Therefore, this recommendation is now closed.

Implement a tracking system for storage of the DNFSB’s existing and future NDAs that is consistent with the Privacy Act.

Agency Response Dated May 5, 2025: Agree; To ensure proper oversight and compliance, the DNFSB’s OGC will be responsible for tracking all NDAs issued by the Agency. All NDAs will be stored along with their official supporting documentation in accordance with Agency records management policies. This process is intended to promote accountability and ensure that all NDAs include the appropriate whistleblower protection language as required by law.<br />
OIG Analysis: The OIG reviewed Directive 630 and verified the OGC is responsible for tracking and storing NDAs. Therefore, this recommendation is now closed.