BNUMBER:  B-303495.2
DATE:  February 15, 2005
TITLE:  Reconsideration of B-303495--Office of National Drug Control Policy Prepackaged News Stories
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   B-303495.2

   February 15, 2005

    MACROBUTTON The Honorable Tom Davis
Chairman, Committee on Government Reform
House of Representatives

   The Honorable Mark Souder
Chairman, Subcommittee on Criminal Justice, Drug Policy,
       and Human Resources
Committee on Government Reform
House of Representatives

   Subject:  Reconsideration of B-303495*Office of National Drug Control
Policy
       Prepackaged News Stories

   This responds to your January 19, 2005, letter in which you expressed your
concerns and disagreement with our recent opinion, B-303495, Jan. 4,
2005.  In B-303495, we concluded that the Office of National Drug Control
Policy*s (ONDCP) use of appropriated funds to produce and distribute
prepackaged news stories that were part of video news releases (VNRs)
violated the prohibition on the use of appropriated funds for publicity or
propaganda purposes.[1] You asked that we withdraw our opinion and
reconsider its analysis because it (1) is inconsistent with ONDCP*s
express authorization to conduct a media campaign, (2) ignores the
independent intervening decisions of news organizations to disseminate
that information as their own, and (3) does not distinguish between
deliberate concealment of source by the government from the news media and
the subsequent concealment of the source from the public by the news
media.  We carefully considered the points you raise in your letter but,
for the reasons stated below, we do not believe it is appropriate to
withdraw B-303495 and stand by that legal opinion.

   At the same time, it is important to clarify the focus of the analysis in
B-303495.  First, since the publicity or propaganda prohibition applies to
ONDCP, our opinion addresses ONDCP*s use of appropriations, not activities
of the news organizations.  In determining the propriety of any use of
appropriated funds, we focus on the entity that is obligating and
expending the funds subject to the prohibition, not on any

   subsequent actions of private entities.  Any ethical or regulatory
obligations that television broadcasters may have committed by airing the
prepackaged news stories without attribution, therefore, are not relevant
to our determination of ONDCP*s responsibilities in obligating
appropriations within the parameters that Congress enacted.  Furthermore,
based on our work, it was evident that ONDCP did not encourage nor did it
intend for the broadcasters to note the source of the news stories. 

   Importantly, only the prepackaged news story segments of the VNRs violated
the publicity or propaganda prohibition.  Other segments of the VNRs,
including B-roll film, public service announcements, and television
advertisements, did not violate the prohibition.  ONDCP targeted the
B-roll to the news organization and identified itself as the source.  The
ONDCP television advertisement segments and public service announcements,
which were targeted to the television viewing audience, were clearly
labeled as messages from ONDCP to that target audience.  If ONDCP had
included a similar source disclosure within the prepackaged news story
segments, either through the *reporter*s* own statements or on the face of
the segments, they would not have violated the prohibition.

   In your January 19 letter, you contend that our opinion fails to consider
the express authority Congress granted to ONDCP to conduct news media
outreach under 21A U.S.C. SS 1801*1804.  See January 19 letter at 2*3.
     In this regard, you point out that section 1802(a)(1) authorizes ONDCP
to use appropriated funds for a media campaign for, among other things:

   *entertainment industry collaborations to fashion anti-drug messages in
motion pictures, television programming, popular music, interactive
(Internet and new) media projects and activities, public information, news
media outreach, and corporate sponsorship and participation.*

   21 U.S.C. S 1802(a)(1)(H) (emphasis added). 

   ONDCP raised this argument to us, and we addressed it in our opinion. 
ONDCP asserted that the authority to conduct news media outreach included
the authority to create news stories without revealing the government as
the source of the story.  Applying commonly accepted canons of statutory
construction, we concluded that while this authority permits more than the
traditional authority granted to agencies to conduct information
dissemination, the language of the statute did not grant the authority to
create news stories without attribution.  There was no indication that
Congress intended this authority to allow the distribution of information
that would otherwise violate the publicity or propaganda prohibition.  See
B-303495, Jan. 4, 2005, at 12.  In light of the publicity or propaganda
prohibition and in keeping with statutory construction principles, we
understand the term *news media outreach* to

   *allow ONDCP to work closely with news media organizations to help them
understand the issues of drug abuse and assist them in the production of
appropriate anti-drug news coverage.*  Id. 

   Second, you contend that our opinion ignores the independent intervening
decisions of news organizations to disseminate the prepackaged news
stories as their own.  As we explained above, it is ONDCP*s action, not
the news organization*s action, that is subject to the prohibition.  ONDCP
targeted its news stories to the television viewing audience but did not
identify itself to its target audience as the source of the news story. 
As noted in our opinion, ONDCP designed the prepackaged news stories to
broadcast as is, without revealing the source of the news story.  B-303495
at 8*9.   ONDCP provided the anchor lead-in scripts and voiceover
specialists who identify themselves as *reporting* from Washington.  At
ONDCP*s own admission, these materials were designed by ONDCP*s contractor
to reach the television viewing audience without identifying the true
source.  Importantly, had ONDCP properly disclosed in the prepackaged news
stories itself as the source but a television station removed the
disclosure, there would have been no violation of the prohibition.

   Finally, your letter asserts that our opinion failed to distinguish
between deliberate concealment of the source by the government from the
news media and the subsequent concealment of the source from the public by
the news media.  As stated above, the target audience of the prepackaged
news stories was the television viewing audience.  ONDCP is responsible
for its own actions in concealing its role as the source from that target
audience.  Again, the materials in question were designed so that
broadcasters would not make changes to the prepackaged news story before
broadcast.  ONDCP*s actions and intent resulted in the deliberate
distribution of news stories to the public without disclosing government
authorship to that audience. The fact that ONDCP used the television
broadcasters as a medium to reach this target audience does not relieve it
of its responsibility.

   The publicity or propaganda prohibition helps mark the boundary between an
agency making information available to the public and agencies creating
unattributed news reports.  For the reasons stated above, we decline to
withdraw B-303495, Jan. 4, 2005, and stand by that opinion.  While ONDCP
is authorized by 21 U.S.C. S 1802(a)(1)(H) to engage in *news media
outreach,* ONDCP also is required to comply with applicable appropriations
act publicity or propaganda prohibitions.  Those prohibitions require
ONDCP to disclose in some manner to the television viewing audience
ONDCP*s role in the production and distribution of its news stories. 

   Importantly, prepackaged news stories can be utilized without violating
the law, so long as there is clear disclosure to the television viewing
audience that the material

   was prepared by or in cooperation with the applicable government
department or agency.  We intend to notify all agencies of the constraints
imposed by the publicity

   or propaganda prohibition on the use of prepackaged news stories and to
advise vigilance to assure that agencies* activities comply with the
prohibition.  We also plan to provide them with guidance as to what they
can do without violating the law.

   Please contact me if you would like to discuss this matter further.

   Sincerely yours,

   /signed/

   David M. Walker
Comptroller General
of the United States

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   [1]   Consolidated Appropriations Act, 2004, Pub. L. No. 108-199, div. F,
title VI, S 624, 118 Stat. 3, 356 (Jan. 23, 2004).