I volunteered my time to help do research for a podcast that sought to help a family get answers about the death of a loved one. The original information was given to us by the family (police reports, etc). A few weeks after getting the majority of this information, the podcast company had a few of us who were privy to the more intimate information sign an NDA. I did my research and made phone calls etc and turned all of that info over to the podcast company who, in turn, shared it with the family of the victim. Fast forward a bit - I am no longer volunteering with the company, however the family and I remain close and I continue to help them find more information. The family has cut ties with the podcast company as well. The family, as well as I, have been approached by producers who want to showcase this story. I am wondering, since all of my research was shared with the family, who did not sign an NDA and are wanting me to speak with the media, am I allowed to participate and discuss the research I did and information I found? By the podcast company sharing that information back with the family who are not under any contract, and with whom I still assist, would that mean that it is not confidential anymore? Also, can an NDA cover information found through a FOIA request?
Confidential isn’t confidential once it’s public
That’s pretty straightforward- if you swear someone to secrecy and then tell the world your secret, it isn’t secret anymore.
If you tell someone a secret and then tell someone else a secret, that doesn’t necessarily mean that it’s public. Both confidants may still be bound by confidentiality- either by contract like an NDA or by some common law restriction. That is, if I tell you a secret and you know it’s a secret, you can’t tell it even if you never had a contract about that.
Notwithstanding, you need to read the terms of your NDA. It’s a contract and what it says is what it means. If it says you can’t talk about it even if it becomes public, then you can’t talk about it.
am I allowed to participate and discuss the research I did and information I found?
The exact terms of the NDA are crucial for assessing the issue. A document labeled or titled as NDA can contain clauses beyond nondisclosure (exclusivity being one typical example) to prevent you from contributing elsewhere. Another question would be whether such clauses are invalid as unreasonable or overly broad.
would that mean that it is not confidential anymore?
It depends on details which are not provided in your description. Arguably some relevant factors are:
- the company's reason(s) for disclosure to the family;
- the company's reasonable expectations on how the family would proceed with that disclosure;
- what the family actually has done with that information;
- whether the company was selective on what information to disclose.
can an NDA cover information found through a FOIA request?
No. FOIA [non-exempt] records are available to the public, and there is no statutory constraint on discussing or divulging the information lawfully released. Accordingly, it makes no sense for a private entity to restrict who is allowed to access and/or discuss information that is publicly available.