Outlaw use of NDAs in doing the public's business

Recent events in Louisiana should serve as a cautionary tale for Connecticut and other states. The confluence of money, power and secrecy can strip the people of the ability to influence policy decisions that can greatly affect their lives. A recent New York Times investigation outlines in detail how Meta worked secretly with state and utility officials to gain approval for construction of a massive, $50 billion data center expected to cover six-square miles in a rural Louisiana county. The story published July 27 summarizes how Meta used the willing secrecy of state officials to "cut deals behind the scenes (and) avoid local opposition." One of the tools that made the clandestine approach possible was the use of nondisclosure agreements, commonly referred to as NDAs. Republican Gov. Jeff Landry used NDAs to contractually prohibit all members of his administration involved with the project planning from disclosing it to the press, public or even state lawmakers. More than 50 government officials signed NDAs with Landry's economic development office, according to records obtained by Gulf States Newsroom and Type Investigations and shared with The N.Y. Times. In April 2024 a bill in the Louisiana legislature, intended to provide tax rebates for fiber-optic equipment, was stripped and rewritten to provide tax rebates for data centers, without lawmakers knowing the intended beneficiary was the secret Meta project. We emailed the administration of Gov. Ned Lamont asking if it had ever used NDAs or whether it could point to any Connecticut laws prohibiting their use. On July 29, Mellaney Castro, director of executive operations and strategic engagement, acknowledged receiving the questions, but they went unanswered as of the Friday deadline. We also asked Attorney General William Tong if any state laws prevented such a use of NDAs in Connecticut. He could point to no such law but expressed faith in the protections provided by the Freedom of Information Act. "The general rule in Connecticut is transparency," read the statement provided by Tong's office. "Parties cannot use nondisclosure agreements to avoid FOIA obligations." The thing is, Louisiana also has an open government act intended to assure transparency. Also like Connecticut, it has no law that makes NDAs between public officials and private companies illegal. When a new Connecticut legislature takes office in 2027, it should approve a law banning such NDAs. Our expectation is that such a proposal would have bipartisan support. Plans for a data center at Millstone Power Station in Waterford were scrubbed after substantial local opposition. Imagine the outcry if secret dealing allowed such a project to be sprung on the people only when it was a fait accompli? Here in Connecticut, it is hard to imagine any massive project being quietly pushed through the approval process as witnessed in Louisiana. Yet NDAs could be abused to pursue other public policy on the QT. Connecticut lawmakers should act proactively to ensure it cannot happen. Some need for privacy is understandable in the earliest stages of negotiating the public-private partnerships that are sometimes necessary to make development possible. This is why the FOI law allows some exemptions to public disclosure, such as preliminary draft documents and litigation strategies. But these exemptions exist by statute, not by way of coercive non-disclosure gag orders. The Louisiana governor has no apologies for his secretive approach. The Meta project will create jobs, boost economic growth and generate tax revenues, he said. "Transparency is a very interesting word," Landry is quoted in the Times. "Because what we've seen is people have used the word transparency to basically kill deals like this." The governor misses the point. In his opinion it is a great deal for the state. Others disagree but never got the chance to voice their opinions before shovels went into the ground. In a government of we the people, proposals should be subject to a debate about their strength and their weaknesses, their fairness or lack thereof. That debate can lead to changes, to approval — or to rejection. That is how it is supposed to work. And that is largely how it works in Connecticut. Closing a loophole to prohibit abusive NDAs can help ensure it will continue to do so. The Day editorial board meets with political, business and community leaders to formulate editorial viewpoints. It is composed of President and Publisher Timothy Dwyer; Executive Editor Izaskun E. Larrañeta; Owen Poole, copy editor; and Lisa McGinley, retired deputy managing editor. The board operates independently from The Day newsroom.