Breaking a nondisclosure agreement from Todd Rokita's office could cost employees $25,000

Indiana Attorney General Todd Rokita’s employees are signing nondisclosure agreements that could cost them $25,000 if they share personal information about the AG — an unusual policy for state office and one that sets him apart from almost all other attorneys general in the country.

The contract, which IndyStar obtained through a public records request, gives Rokita and his staff the power to decide what information counts as confidential. It covers “personal or private information” about the attorney general, his employees and their families.

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State offices here and dozens of other states' attorney general offices told IndyStar they don't have their employees sign contracts like this. Rokita's office stands by it, however, and says its employees "understand this requirement" before they agree to work there.

The contract doesn't prevent employees from reporting unlawful behavior to state or federal authorities. But multiple experts who reviewed a copy said it raises concerns about constraints on free speech as well as the public’s right to know what goes on in the offices of elected officials.

"The (NDA's) definition of 'confidential information' seems designed to shield public officials from scrutiny," contract law expert Michael Mattioli told IndyStar. "And that's an essential part of living in a well-functioning democracy."

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What does Rokita's office say about the NDA?

IndyStar requested an interview with Rokita in February to ask why he was using NDAs. It was never granted.

After IndyStar sent multiple follow-up emails detailing the findings of its investigation, an office spokesperson responded with a statement July 7.

In it, they described the Indiana Attorney General's Office as a "professional law firm."

"For any professional or executive, signing an NDA is a conventional office practice that has worked well to protect clients and employees alike," the spokesperson said. "This practice has done nothing to prevent our team from working together to protect the rights and liberty of the people we serve."

If others in public office aren't using NDAs, "they should be," the spokesperson said.

Read the statement below:

What does the agreement say?

The contract essentially gives Rokita and the AG's office control over what an employee can say, both during and after employment. The stated rationale is that the employee will be "privy" to information that could be protected by laws and state professional conduct rules.

Read a copy of the NDA below:

But it doesn't stop there. It says Rokita and his office ultimately have the power to decide what information fits the definition of "confidential."

That includes “all material, non-public, information, written, oral, or electronic … that is disclosed or made available to the receiving party, directly or indirectly, through any means of communication or observation ...” The category also shields "personal or private information" about Rokita and his staff.

"Information does not need to be marked ‘confidential’ to be deemed confidential information,” the contract states.

Anyone who breaches it may face legal action that could end with them paying $25,000 or more.

How many of Rokita's employees have signed these?

It's unknown how many of Rokita’s employees, past and present, have signed these agreements.

In its June response to an IndyStar records request, the office indicated there were 24 signed NDAs. They declined to provide those 24 records, however, citing state law that protects the personnel files of public employees.

Rokita has stated in the past that his office has 400 employees.

Do other Indiana offices use nondisclosure agreements?

State and federal laws already protect confidential information received by public employees in Indiana. That includes such information as trade secrets, patient medical records and crime records for juveniles.

Those who reveal confidential information face a Class A infraction — a civil penalty that carries a judgment of up to $10,000.

That’s why Indiana Public Access Counselor Luke Britt, the state’s public records custodian, usually tells state offices that NDAs aren’t necessary.

“I’ve always considered the language of the law strong enough," Britt said over email, "to protect disclosure of sensitive information.”

But, he added, “so long as it doesn’t shield (the) release of otherwise disclosable documents, it’s not inherently problematic from a public access standpoint.” He declined to comment on Rokita's NDA.

Britt’s office doesn’t have its employees sign NDAs. Nor do the seven other state offices that responded to IndyStar's questions — including the Indiana Supreme Court, which, like Rokita’s office, deals with sensitive and confidential legal matters.

What did other Indiana state offices say?

• Governor's Office: No NDAs. “We do not ask employees of the Governor’s Office to sign non-disclosure agreements, primarily because state law already prohibits employees from sharing confidential information,” a spokesperson for the Indiana State Personnel Department told IndyStar.

• Supreme Court: No NDAs. "Our employees are subject to confidentiality requirements in our employee handbook and the Judicial Canons. ... We’ve never had any issues under our policies and appreciate how seriously our employees take their responsibilities."

• State Auditor: No NDAs. "Employees are subject to the State Ethics Code, which addresses the handling of confidential information."

• Treasurer: No NDA policy.

• Finance Authority: No NDAs, because “state and federal laws already prohibit IFA employees from sharing confidential information."

• Department of Labor: No NDAs, according to a state personnel department spokesperson.

• Secretary of State: No NDAs.

What about other states' attorneys general?

IndyStar also reached out to the attorney general's office in all other states and the District of Columbia to ask if they use NDAs.

The majority — 33 out of 50 — indicated that they didn't.

"Are you aware of an AG office that does?" replied a spokesperson from the Connecticut Office of the Attorney General.

Five didn't respond by this article's publication date.

Two declined to provide records.

Ten offices said they use confidentiality agreements focused on work-related information. Most didn't protect personal information about their attorney general.

Two of those ten, however, seemed broad, according to Mattioli, the contract law expert.

One came from the office of New Mexico Attorney General Raúl Torrez, a Democrat. At least two employees signed agreements that define confidential information as "any information of any kind, nature, or description concerning any matters affecting or relating to" Torrez or his employees.

The Louisiana Attorney General's Office, led by Republican Jeff Landry, has a contract in place that protects "all information of any nature whatsoever acquired or known" by signing employees, including criminal and civil investigations related to "personal" matters.

Neither office answered IndyStar's questions.

After reading both of them, Mattioli said Rokita's NDA still seems to stand apart because it specifically uses the phrase "personal or private information."

An employee who reads that "might be more reluctant, more worried about disclosing that information, even if it's of public concern and interest," he explained.

What other attorney general's offices told IndyStar

Does Rokita still have his eye on higher office?

NDAs may be uncommon among attorneys general, but they're not unheard of in politics. In 2018, the news outlet Vox reported that Democrats and Republicans in Congress were asking unpaid interns to sign NDAs that shielded the disclosure of personal information of elected officials and their staff.

Rokita may have been the target of a leak in the past. During his time as a member of the U.S. House, the news outlet Politico got its hands on an eight-page memo of instructions Rokita gave his drivers. Among its many commands: Never allow Rokita's photo to be taken while a drink was in his hand, make sure he had his phone and wallet on him when he entered the car, and don't "interrupt (Rokita's) prep time with unnecessary conversation," according to Politico.

"There is nothing embarrassing about always being prepared," a spokesperson for Rokita's campaign told Politico at the time.

Greg Shufeldt, a political science professor at the University of Indianapolis, said Rokita could be using NDAs because he still has his eye on higher office.

In February, Rokita announced he'll be running for reelection as attorney general in 2024. But Shufeldt says that doesn’t mean he has ruled out another political gig further down the line.

Shufeldt said some of Rokita’s acts while state attorney general — like his appearances on Fox News or his trip to the U.S.-Mexico border last year — amount to “headline shopping” that hints at bigger ambitions.

“Whether it's to another elected office, finding a lucrative next step in conservative circles post-office, or getting a position of prominence should a Republican win the White House,” Shufeldt said over email.

To that end, “avoiding media reports or scandal by having his staff sign NDAs has political considerations,” he said.

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What do government ethics experts say about the NDA?

John Pelissero, a government ethics scholar with the Markkula Center for Applied Ethics at Santa Clara University, said Rokita's NDA reads like a wide-ranging "withholding of information agreement ... rather than just asking employees of the AG’s office to recognize that they have confidentiality obligations.”

"You just wonder what the interest of the public is that they're attempting to serve with such a broad, blanket secrecy agreement," he said.

Kathleen Clark, a law professor at the Washington University in St. Louis School of Law who worked as counsel for Washington, D.C.'s attorney general and the U.S. Senate Judiciary Committee, said the contract was "reprehensible" because of its "attempt to intimidate."

"What could be less consistent with the obligations of the chief law enforcement officer of the State of Indiana?" she said.

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What would a judge say about Rokita's NDA?

Rokita's office says the NDA is "absolutely enforceable." But because of its sweeping nature, Joseph Tomain, a contract law professor at Indiana University, said a judge could take issue with it.

It may be seen by a court as having “a chilling effect” on free speech, he said.

"If somebody were to challenge this in court, I think that the attorney general's office would face a serious legal challenge to its enforceability," Tomain said.

A judge might consider the agreement's duration, how much information it covers, what legitimate interest Rokita has in protecting that information and whether it could be harmful to the public interest, according to Tomain.

He pointed to similar issues that came up in the legal battle over NDAs in Donald Trump’s presidential campaign. In 2021, a federal judge in the U.S. District Court for the Southern District of New York found that Trump’s NDA for campaign staff was “unenforceable under basic principles of contract law.”

The NDA clauses in the employment contract were so broad, the judge wrote, that it was impossible for the plaintiff — a former campaign staffer — to know what exactly she wasn’t allowed to say. The judge ruled in favor of the plaintiff and declared those clauses "invalid and unenforceable."

Rokita’s NDA might be found to cover more than the attorney general’s legitimate interest as an employer, Tomain said, and the hefty damages provision of $25,000 might also be seen as a penalty “and therefore not enforceable."

But Mattioli said it’s difficult to predict just how a judge would react.

“It’s just very case-specific,” he said.

The mere fact that the NDA exists may be all that's needed to keep employees quiet, he added.

“The uncertainty of whether or not a court would enforce this could just lead a rational employee to say, ‘I'm not going to disclose this, I can’t risk it.'"

IndyStar news editor Jen Guadarrama and former Pulliam fellow Cate Charron contributed.

Call IndyStar courts reporter Johnny Magdaleno at 317-273-3188 or email him at jmagdaleno@indystar.com. Follow him on Twitter @IndyStarJohnny

This article originally appeared on Indianapolis Star: AG Todd Rokita's office requires an NDA. It might threaten free speech