TITLE: B-304228, Department of Education--No Child Left Behind Act Video News Release and Media Analysis, September 30, 2005
BNUMBER: B-304228
DATE: September 30, 2005
*********************************************************************************************************************
B-304228, Department of Education--No Child Left Behind Act Video News Release and Media Analysis, September 30, 2005

   B-304228

   September 30, 2005

   The Honorable Frank R. Lautenberg

   United States Senate

   The Honorable Edward M. Kennedy

   United States Senate

   Subject: Department of Education--No Child Left Behind Act Video News
   Release and Media Analysis

   In a letter dated October 14, 2004, you requested our opinion on the
   Department of Education's (Department) use of appropriated funds to hire
   Ketchum, Inc. (Ketchum), to conduct a media analysis and to produce and
   distribute a video news release (VNR) regarding programs available under
   the No Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425
   (Jan. 8, 2002)(NCLB Act). You asked whether these activities violated the
   governmentwide prohibition against using appropriated funds for publicity
   or propaganda not authorized by Congress. See Consolidated Appropriations
   Act of 2004, Pub. L. No. 108-199, div. F, title VI, sect. 624, 118 Stat.
   3, 356 (Jan. 23, 2004); Consolidated Appropriations Resolution, 2003, Pub.
   L. No. 108-7, div. J, title VI, sect. 626, 117 Stat. 470 (Feb. 20, 2003).

   We have applied the publicity or propaganda prohibition to forbid the use
   of appropriations for (1) covert propaganda, (2) purely partisan
   activities, or (3) self-aggrandizing activities. B-302504, Mar. 10, 2004.
   The VNR on supplemental education services under the NCLB Act at issue
   here contains a prepackaged news story that fails to identify the
   Department as the source of the news story. See id. Because the
   Department's role in the production and distribution of the prepackaged
   news story is not revealed to the target audience, the prepackaged news
   story constitutes covert propaganda. We disagree with the Department's
   contention that the prepackaged news stories are not covert propaganda
   because they contain only factual information. To constitute a legitimate
   information dissemination activity that does not violate the publicity or
   propaganda prohibition, the Department must inform the viewing public that
   the government is the source of the information disseminated.[1]

   With respect to the media analysis, the Department directed Ketchum to
   assess whether its messages were reaching target audiences and were being
   mentioned in a positive way. While we question the usefulness of the
   Department's methodology in achieving its stated objective, we recognize
   that a media analysis similar to the one conducted by the Department is
   within its authority. As part of this media analysis, however, Ketchum
   evaluated the media perception that the "Bush Administration/the GOP is
   committed to education." Appropriated funds are not available to evaluate
   the Republican Party's (or any other political party's) commitment to
   education, and the Department should take appropriate steps to ensure that
   no such use of its appropriations occurs in the future.

   BACKGROUND

   On January 8, 2002, President Bush signed into law the NCLB Act, with the
   stated purpose "to close the achievement gap with accountability,
   flexibility, and choice, so that no child is left behind." Pub. L. No.
   107-110, 115 Stat. 1425 (Jan. 8, 2002). In addition to reauthorizing
   funding for education programs, the Act establishes new testing and
   accountability requirements for public schools designed to ensure that
   public school students achieve a level of proficiency in reading and
   mathematics. See Pub. L. No. 107-110, title I, sect. 1001, 115 Stat. at
   1439-40. The Act authorizes, among other things, federal funding for
   supplemental educational services directed at assisting economically
   disadvantaged schools and their students. See Pub. L. No. 107-110, title
   I, pt. A, sect. 1116, 115 Stat. 1478 (codified in 20 U.S.C. sect. 6316).
   These supplemental services are available to eligible students of schools
   identified by local agencies as failing to make adequate yearly progress
   as identified by each state's plan for three consecutive years. 20 U.S.C.
   sect. 6316(e)(1). In addition to establishing requirements for
   identification by local education agencies, 20 U.S.C. sect. 6316(b)(1),
   the Act requires that school districts provide parents with appropriate
   notice of the availability of supplemental educational services, among
   other information, 20 U.S.C. sect. 6316(b)(6).

   On May 14, 2003, the Department entered into a contract with Ketchum to
   "develop a comprehensive long-range communications strategy for the
   Department to communicate to the public information on the No Child Left
   Behind" Act. Contract at 5. The contract specified that the intended work
   products include "audio products, videos and some print materials that
   present clear, coherent, targeted messages regarding ED's programs and
   that relate to the Department's legislative initiatives . . ." Id. at 6.
   The contract specified that Ketchum was to produce audio and video
   programs focusing on the Department initiatives, including but not limited
   to the NCLB Act. Id. at 9.

   The contract also required "[a]ssessment of the [NCLB Act] knowledge level
   of diverse audiences and development of targeted communications strategies
   to reach those who most need the information." Under the contract, Ketchum
   was required to "[e]valuate effectiveness of the strategies and provide
   analyses" and "[c]onduct media analysis, focus groups, and other market
   research." Id. at 7.

   The Department issued 21 work requests as part of its contract with
   Ketchum. Pursuant to these work requests, Ketchum delivered various
   written, audio, and video products, including but not limited to focus
   group reports, radio public service announcements, brochures, posters, and
   public polling results. Work Requests 2-21. In September 2003, the
   Department issued a work order for a VNR regarding supplemental
   educational services. Work Request 6 at 2. The statement of work specified
   that Ketchum was to "create a localized video news feed that features a
   spokesperson with a localized `message' for each of the 30-target
   markets." Statement of Work 6 at 2.[2] The Department paid $38,421.06 for
   the production and distribution of the Supplemental Educational Services
   VNR. Talbert Letter, at 2.

   The Department also issued two work requests for media analyses of a
   random selection of news stories published from April 2003 through January
   2004. The Department requested that this "benchmark" analysis contain
   quantitative and qualitative components to determine the current
   effectiveness of the "messages" reaching the public about the Act. Work
   Requests 2, 8; Statements of Work 2, 8. The purpose of these analyses was
   to provide the Department with information to determine "if the public is
   gaining an understanding of the law . . ." and to understand "the most
   appropriate media strategy and help in shaping and designing media
   activities." Statement of Work 2, Benchmarking. The Department paid
   $96,850.99 for the benchmark media analyses. Talbert Letter, at 2.

   THE SUPPLEMENTAL EDUCATIONAL SERVICES VNR

   The VNR at issue here begins with a slate[3] announcing the topic of the
   VNR: "Tutoring and Remedial Classes Available to Thousands of Students."
   This title slate is followed by a series of slates with statements and
   "key facts" regarding the NCLB Act, contact information directing viewers
   to a Web site and toll-free number operated by the Department, and
   contents of the remaining VNR segments. B-roll film follows the slates and
   contains statements from Roderick R. Paige, Secretary, U.S. Department of
   Education; Valerie Garland, a parent of a student receiving supplemental
   educational services; and Alberta Paul, Program Coordinator for
   Supplemental Services.

   A prepackaged news story, referred to as a story package, appears after
   the b-roll. It begins with a suggested anchor lead-in script, indicating
   that Karen Ryan has a report on how some students may be eligible for
   after-school free tutoring services. As the prepackaged news story begins,
   a female narrator reports on a predicament facing Valerie Garland and her
   son, who will be repeating the 11^th grade due to poor grades. The
   narrator tells us that Ms. Garland knows that her son could do better if
   he had some extra help. At this point, the story package includes a
   statement from Ms. Garland describing her struggle to find help for her
   son through the school system. The narrator explains that under the NCLB
   Act, children who attend schools that do not meet federal standards can
   enroll in the tutoring programs. The story continues with statements from
   Secretary Paige and Alberta Paul, indicating that the tutoring is
   available at no cost and these services are having a positive impact on
   its participants. The narrator completes the prepackaged story as follows:
   "For Valerie and many other parents of children with poor grades, this is
   a program that gets an A Plus. In Washington, I'm Karen Ryan reporting."
   The prepackaged news story does not inform the audience that the
   Department produced and distributed the news story.[4]

   The VNR continues with additional b-roll film, including video with
   Valerie and her children at home, children at school, Secretary Paige
   visiting a school, Alberta Paul in her office, and the exterior of the
   Department's building in Washington, D.C. The VNR concludes with b-roll
   film of statements from Secretary Paige and Nina Rees, Deputy Under
   Secretary of Education, Innovation and Improvement, regarding specific
   geographic areas and the deadlines for enrolling for supplemental
   educational services.

   In B-302710, May 19, 2004, we examined VNRs produced and distributed by
   the Department of Health and Human Services (HHS) containing similar
   prepackaged news stories that failed to identify HHS as the source of the
   news story. At no point in the news story did HHS identify itself as the
   source of the story. We concluded that these prepackaged news stories
   violated the publicity or propaganda prohibition because they constituted
   covert propaganda. Id. The obvious, "critical element" of covert
   propaganda is concealment of the agency's role in preparing the material
   from the target audience. [5] B-229257, June 10, 1988. See also B-303495,
   Jan. 4, 2005; B-302710, May 19, 2004. In January 2005, we examined VNRs
   containing unattributed prepackaged news stories, similar to the HHS VNRs,
   that the Office of National Drug Control Policy (ONDCP) produced and
   distributed. B-303495, Jan. 4, 2005. Applying the same standard set forth
   in B-302710, we concluded that the prepackaged news stories of the ONDCP
   VNRs also violated the publicity or propaganda prohibition.

   The VNR at issue here is not materially different from the HHS and ONDCP
   VNRs. It contains a prepackaged news story that fails to identify the
   Department to the targeted audience as the source of the prepackaged news
   story. Consistent with our HHS and ONDCP opinions, the Department's
   prepackaged news story constitutes covert propaganda and violates the
   publicity or propaganda prohibition. The Department contends that its
   prepackaged news story is not covert propaganda because it contains only
   "factual information," Talbert Letter, at 8, and it is not required to
   disclose the source of only factual information. In support of this view,
   the Department cites a July 30, 2004, opinion of the Office of Legal
   Counsel (OLC) of the Department of Justice. The OLC opinion disagreed with
   our May 2004 conclusion that HHS's prepackaged news stories violated the
   publicity or propaganda prohibition. OLC believes that if the content of
   the news stories is factual, the government need not disclose itself as
   the source of the news story; disclosure is only necessary if the news
   story or other communication advocates a point of view. See July 30, 2004,
   OLC Opinion at 7, 13.

   We disagree. The failure of an agency to identify itself as the source of
   a prepackaged news story misleads the viewing public by encouraging the
   viewing audience to believe that the broadcasting news organization
   developed the information. The prepackaged news stories are purposefully
   designed to be indistinguishable from news segments broadcast to the
   public. When the television viewing public does not know that the stories
   they watched on television news programs about the government were in fact
   prepared by the government, the stories are, in this sense, no longer
   purely factual--the essential fact of attribution is missing.

   Source identification is essential in assessing the credibility and
   utility of any communication. See Garth S. Jowett and Victoria O'Donnell,
   Propaganda and Persuasion, 215, 221-28 (1992) (noting the importance of
   source identification in analyzing information). OLC failed to recognize
   that withholding the source of information by the agency removes the
   prepackaged news story from the realm of "purely factual," since it
   severely inhibits the capability of the reader or listener to assess the
   credibility of the information proffered and its utility to the reader or
   listener.[6]

   For nearly 20 years, the Comptroller General has found source
   identification to be an essential element of government communications and
   has found agencies in violation of the prohibition when they failed to
   identify the government as the source. See, e.g., B-223098, B-223098.2,
   Oct. 10, 1986 (Small Business Administration violated the prohibition when
   it prepared suggested editorials for placement in newspapers around the
   country, and did not disclose to the readers that the government was the
   source of the editorials); see also 66 Comp. Gen. 707, 708-9 (1987) (State
   Department violated prohibition by paying others to write op-ed pieces for
   publication in newspapers without revealing that the writer was paid by
   the State Department).[7] Over this same time period, Congress continued
   to re-enact the prohibition with little change and without criticism.

   This year, Congress enacted section 6076 of the Emergency Supplemental
   Appropriations Act for Defense, the Global War on Terror, and Tsunami
   Relief, 2005, Pub. L. No. 109-13, 110 Stat. 231, 301 (May 11, 2005), which
   affirmatively rejected OLC's opinion. Section 6076 provides that no
   appropriations "may be used by an executive branch agency to produce any
   prepackaged news story intended for broadcast or distribution unless the
   story includes a clear notification within the text or audio of the
   prepackaged news story that the prepackaged news story was prepared or
   funded by that executive branch agency." Pub. L. No. 109-13, title VI,
   sect. 6076, 119 Stat. 231, 301 (May 11, 2005). The conference report
   accompanying Public Law 109-13 states that section 6076 "confirms the
   opinion of the Government Accountability Office dated February 17,
   2005."[8] H.R. Conf. Rep. No. 109-72, at 158-59 (2005).

   The Antideficiency Act prohibits authorizing an expenditure that exceeds
   available budget authority. See B-300325, Dec. 13, 2002. We have
   interpreted agency violations of explicit prohibitions on the use of
   appropriated funds as a violation of the Antideficiency Act. See B-302710,
   May 19, 2004; see also B-303495, Jan. 4, 2005. Accordingly, the Department
   violated the Antideficiency Act because no appropriations are available
   for the production of materials that violate the publicity or propaganda
   prohibition. The Antideficiency Act requires the Department to report
   immediately an Antideficiency Act violation to the President and Congress.
   See 31 U.S.C. sections 1351, 1517(b). On the same day that the Department
   transmits reports of its violations to the President and Congress, the
   Department must also send copies of those reports to the Comptroller
   General.[9] See id.

   THE MEDIA ANALYSIS

   Your letter also raised concerns about the use of appropriated funds to
   conduct the media analysis. In particular, you expressed concern that the
   Department may have violated the law by asking Ketchum to assess media
   reports to determine whether the media reports, among other things,
   included the message that "The Bush Administration/the GOP is committed to
   education."

   In a work request, the Department directed Ketchum to "conduct baseline
   research to benchmark the media coverage for the messages associated with
   the No Child Left Behind Act . . . in trade and consumer media outlets."
   Work Request 2, Statement of Work; Work Request 8, Statement of Work. The
   Department also directed Ketchum to "use a combination of quantitative and
   qualitative media analyses . . . [to] help determine if the desired
   messages are reaching the target audiences; if the issue is being
   mentioned in a positive way as part of the editorial content; and if
   spokespeople are effectively referencing the issue in news articles." Id.
   The stated purpose for the work request was to assist the Department "in
   determining if the public is gaining an understanding of the law . . .
   [and] in shaping and designing media activities." Id.

   Ketchum delivered several reports to the Department, covering the time
   period of April 2003 through January 2004.[10] Talbert Letter, at 4. To
   compile these reports, Ketchum analyzed a random sample of news articles
   from trade publications, newspapers, magazines, and television and radio
   programs that referenced the NCLB Act in the text or headline and were
   published in the relevant time period. See, e.g., No Child Left Behind
   Benchmark Analysis, April-June 2003 at 3. Ketchum then assigned a value or
   algorithm to each article based on four criteria, including (1) the type
   of publication or media outlet publishing the article, assigning higher
   points to publications that are more widely read; (2) inclusion of
   positive and negative messages, noting that key messages were determined
   jointly by the Department and Ketchum; (3) inclusion of expert quotes in
   support of NCLB; and (4) tonality of the article. Id.  at 4.

   In order to determine whether an article had a positive or negative
   message, Ketchum looked for the presence of 23 different themes within an
   article. The positive messages that Ketchum looked for in news articles
   were:

   .        NCLB supports learning in the early years, helping to prevent
   learning difficulties that arise later;

   .        NCLB provides more information for parents about their child's
   progress;

   .        NCLB alerts parents to important information on the performance
   of their child's school;

   .        NCLB is working to close the achievement gap between "haves" and
   "have nots";

   .        NCLB improves teaching and learning by providing better
   information to teachers and principals/fairer standards for testing;

   .        NCLB ensures teacher quality is a high priority;

   .        NCLB gives more resources to schools, such as tutoring services;

   .        NCLB allows parents more choice (transfer option);

   .        NCLB makes schools accountable for students' success;

   .        The Bush Administration/the GOP is committed to education;[11]
   and

   .        NCLB is based on scientific methods/proven research to achieve
   results.

   The negative messages that Ketchum looked for were:

   .        NCLB is not sufficiently funded;

   .        NCLB law is too vague and confusing and too difficult for states
   to implement;

   .        Federal testing requirements contradict existing state
   requirements; states will have to spend a lot to develop new tests;

   .        There are wide discrepancies between state criteria for
   evaluating under performing schools;

   .        Teacher training programs do not have enough money to train
   teachers to meet new requirements;

   .        Better schools will become too crowded/burdened as the school
   transfer option progresses;

   .        In some districts, there are no better schools to which students
   may transfer, or the better schools are already crowded;

   .        Spending money on transporting students to better schools means
   taking money away from schools; parents have to spend extra time/money for
   transportation;

   .        States do not have enough flexibility; federal government/Bush
   administration is interfering;

   .        Increased testing is not a substitute for education reform;
   "teaching to the test";

   .        The new law may cause a teacher shortage, as qualification
   requirements are too rigid; teachers are set up to fail; and

   .        States are lowering their standards to avoid negative
   labels/unfairly stigmatizing schools.

   After scoring each article, Ketchum provided the Department with a list of
   the highest and lowest scoring articles, an analysis of the most prevalent
   positive and negative messages--both nationally and on an individual state
   basis--and a summary of articles written by the most prevalent reporters.

   As a general matter, an agency may use appropriations to engage in
   information dissemination and related activity, such as the media
   analysis, to further its legitimate interest of informing the public about
   its policies and programs. See B-302504, Mar. 10, 2004 (quoting B-130961,
   Oct. 26, 1972). Indeed, our decisions reflect societal values in favor of
   a robust exchange of information between the government and the public it
   serves. See, e.g., B-184648, Dec. 3, 1975 (discussing an agency's
   "legitimate interest in communicating with the public").

   After examining all the benchmark analysis reports, including two
   quarterly reports, we found the assessment of one message that appeared in
   the second quarter analysis to be inappropriate. Ketchum looked for the
   positive message--"The Bush Administration/the GOP is committed to
   education"--in a random sample of articles. The five other reports did not
   analyze this factor or any other objectionable factor. Under the Purpose
   Statute, 31 U.S.C. sect. 1301(a), appropriated funds may be used only for
   purposes for which they were appropriated and for any expenses that are
   reasonably necessary for the accomplishment of that purpose. B-303170,
   Apr. 22, 2005. Stated differently, Congress appropriates funds for
   official government functions, not for political activities of the
   administration, B-302504, Mar. 10, 2004, or personal obligations of
   federal employees, B-261720, Apr. 1, 1996. Appropriated funds are not
   available to gather information concerning the media's perception of a
   political party.

   The Department used the "Departmental Management--Program Administration"
   appropriation under the Consolidated Appropriations Resolution, 2003, to
   contract for the media analysis. Talbert Letter, at 1. This appropriation
   is available for carrying out the Department of Education Organization Act
   of 1979, Pub. L. No. 96-88, 93 Stat. 668 (Oct. 17, 1979). See Pub. L. No.
   108-7, div. G, tit. III, 117 Stat. 11, 331-2 (Feb. 20, 2003). This Act
   requires that the Department "inform the public regarding federally
   supported education programs. . . and . . . collect data and information
   on applicable programs for the purpose of obtaining objective measurements
   of the effectiveness of such programs in achieving the intended purposes
   of such programs. " 20 U.S.C. sections 1231a(2), (3).

   While the Department may use its funds for a media analysis consistent
   with the Department's public information functions under section 1231a(2),
   the gathering of information regarding the media and public's favorable
   view of the Republican (or any other political) Party does not fall within
   the information functions Congress authorized the Department to perform.
   We see no use for such information except for partisan, political party
   purposes. Engaging in a purely political activity such as this is not a
   proper use of appropriated funds. See B-147578, Nov. 8, 1962 (noting that
   appropriated funds are not available for purely partisan purposes or in an
   effort to aid a political party). Cf. B-248991, Mar. 3, 1993 (examining
   the apportionment of "mixed trips" involving official and political
   business when determining what expenses were consistent with the
   requirements of 31 U.S.C. sect. 1301).

   The evaluation of the media's representation of the Republican Party
   comprises, however, a small part of the entire analysis that Ketchum
   conducted at the direction of the Department. It is virtually impossible
   to separate and cost out the amount of funds associated with this factor.
   The Department incurred little if any additional expense by including the
   improper factor in one of six analyses, and there is no evidence that the
   Department otherwise spent funds to benefit the Republican Party. See
   B-136762, Aug. 18, 1958 (finding that although no funds were available for
   the Deputy Assistant Secretary of Defense's speech, no additional funds
   were expended in delivering the speech). We caution that if the Department
   chooses to conduct media analyses in the future, it should be more
   diligent in its efforts to ensure that such analyses are free from
   explicit partisan content.[12]

   Although we question whether the media analysis as structured was an
   effective means of determining where the public needs more information to
   ensure that parents have "accurate information on which to base decisions
   about their children's education,"[13] or to determine "if the public is
   gaining an understanding of the law," we do not find that it violated the
   publicity or propaganda prohibition. Generally, we will not object to an
   agency's use of appropriated funds to engage in information functions if
   the agency justifies its activity as "made in connection with official
   duties" and there is a reasonable basis for that justification. B-302504,
   Mar. 10, 2004; B-144323, Nov. 4, 1960.

   As its justification for conducting a media analysis, the Department
   contends that the purpose of the media analysis was to identify "where the
   media, and therefore the public, needed more information or explanation of
   how the law would benefit the public" and to ensure that parents would
   have "accurate information upon which to base decisions about their
   children's education." [14] Talbert Letter, at 6. Although we question the
   efficacy of using a media analysis of positive and negative messages for
   assessing the public's knowledge, we decline to find that this analysis is
   improper. We have consistently held that an agency's information
   dissemination functions include informing the public about the
   administration's policies and the defense of those policies. See B-302992,
   Sept. 10, 2004; B-302504, Mar. 10, 2004; B-223098, B-223098.2, Oct. 10,
   1986. It is therefore not unreasonable for the Department to track the
   messages reaching the public. To find otherwise would unduly restrain the
   recognized and legitimate exercise of the Department's and the
   Administration's ability to inform the public of its policies, to justify
   those policies and to rebut attacks on those policies. Cf. B-302504, Mar.
   10, 2004 (noting that restricting materials with some political content
   would curtail the Administration's legitimate exercise of authority to
   defend and explain its policies).

   CONCLUSION

   The Department's use of appropriated funds to produce a prepackaged news
   story regarding Supplemental Educational Services that failed to inform
   the viewing audience of the government source violates the publicity or
   propaganda prohibition. As we have stated in previous opinions and as
   recently affirmed by Congress, to avoid a violation of the publicity or
   propaganda prohibition, an agency must inform the viewing public that the
   government is the source of the information disseminated. Moreover,
   because the Department had no appropriation available to produce and
   distribute materials in violation of the publicity or propaganda
   prohibition, the Department violated the Antideficiency Act, 31 U.S.C.
   sect. 1341. In accordance with 31 U.S.C. sections 1351, 1517(b), the
   Department must report immediately its Antideficiency Act violation to the
   President and Congress and also send a copy of all reports to the
   Comptroller General.

   With regard to the media analysis, there were no appropriations available
   for analyzing the media and public's opinion concerning the Republican
   Party's (or any other political party's) commitment to education. However,
   the media analysis as a whole was within the information functions
   authorized to be performed and the inclusion of a partisan factor in one
   of six media reports incurred little if any additional expense.
   Nevertheless, we caution that, if the Department chooses to conduct media
   analyses in the future, it be more diligent in its efforts to ensure that
   such analyses be free from such explicit partisan content.

   Anthony H. Gamboa

   General Counsel

   DIGEST

    1. Consistent with prior case law, we conclude that the Department of
       Education's (Department) use of appropriated funds to produce and
       distribute a prepackaged news story regarding programs under the No
       Child Left Behind Act of 2001, Pub. L. No. 107-110, 115 Stat. 1425
       (Jan. 8, 2002), violated the publicity or propaganda prohibition, see,
       e.g., Pub. L. No. 108-199, div. F, title, VI, sect. 624, 118 Stat. 3,
       356 (Jan. 23, 2004). We disagree with the Department's contention that
       the prepackaged new story is not covert propaganda because it
       contained only factual information. To constitute legitimate
       information dissemination activity, the Department must inform the
       viewing public that the government is the source of the information
       dissemination.

    2. There are no appropriated funds available for the Department to
       conduct a media analysis that gathers information regarding the media
       and public's perception of the Republican Party's (or any other
       political party's) commitment to education. Because the Department
       incurred little if any expense by including this purely partisan
       factor in an otherwise acceptable media analysis, we find that the
       Department did not violate the publicity or propaganda prohibition.
       However, we caution that if the Department conducts future media
       analyses, it should be more diligent in its efforts to ensure that
       such analyses are free from explicit partisan content.

   ------------------------

   [1] See also Pub. L. No. 109-13, title VI, sect. 6076, 119 Stat. 231, 301
   (May 11, 2005).

   [2] In addition to the VNR at issue here, the Department issued four other
   work requests for VNRs. The Department issued two work requests after May
   2004, when we issued B-304710, May 19, 2004, finding that a prepackaged
   news story violated the publicity or propaganda prohibition. In the two
   work requests subsequent to that decision, the Department specified that
   Ketchum was to create a VNR with only a b-roll package and that would not
   contain a prepackaged news story. The topics of the VNRs were financial
   aid, Education Science Summit, back-to-school programs and school
   improvement issues. While this opinion addresses only the VNR on
   supplemental educational services, the standards that we apply in this
   opinion should also be used to evaluate whether any of the other four VNRs
   violate the prohibition.

   [3] A slate is a visual feed containing title cards and other information
   explaining key facts and other information contained on a VNR. See
   B-302710, May 19, 2004.

   [4] The Department's regulations require that contractors who are
   publicizing the work of the Department contain the following disclosure:

   "This project has been funded at least in part with Federal funds from the
   U.S. Department of Education under contract number ______. The content of
   this publication does not necessarily reflect the views or policies of the
   U.S. Department of Education nor does mention of trade names, commercial
   products, or organizations imply endorsement by the U.S. Government."

   48 C.F.R. sect. 3452.227-70. The contract with Ketchum did not include
   this disclosure language requirement.

   [5] In addition to covert propaganda, our decisions have recognized two
   other types of information activities that violate the publicity or
   propaganda prohibition, including self-aggrandizement and materials
   characterized as purely partisan materials. See B-302504, Mar. 10, 2004.

   [6] OLC provides several dictionary definitions of propaganda in its
   opinion. See, e.g., July 30, 2004, OLC Opinion at 9 (defining propaganda
   as "to advocate, disseminate, and encourage a particular view, doctrine,
   or cause"). Accepting, for the purposes of discussion, these definitional
   measures of propaganda, both the HHS and the Department prepackaged news
   stories "advocate, disseminate, and encourage a particular point of view."
   The Department's prepackaged news story at issue "encourage[s] a
   particular view" when Ms. Ryan, the putative news reporter, states at the
   end of the story, "[T]his is a program that gets an A-Plus." The HHS
   prepackaged news story also "advocate[ed] and encouraged a particular
   point of view" through the selection of fact and perspectives highlighted
   or omitted. Only the most innocent, or naive, would conclude that the
   selection of facts and perspectives was not done to encourage the audience
   to have a favorable view of new legislation. Thus, even under the OLC
   analysis, these prepackaged news stories would be propaganda.

   [7] We find no difference between explicit advocacy that may be contained
   in an editorial piece and implicit advocacy of a news story that
   purposefully reports certain facts and omits other facts to encourage
   public support for its position.

   [8] The conferees were referring to the Comptroller General's circular
   letter to Heads of Agencies alerting the agencies to our analysis
   concerning unattributed prepackaged news stories and referencing our HHS
   and ONDCP opinions.

   [9] An agency may send copies of its Antideficiency Act reports in
   electronic form to [email protected]. B-304335, Mar. 8,
   2005. In the alternative, an agency may send copies of reports to the
   following address: Comptroller General of the United States, U.S.
   Government Accountability Office, Antideficiency Act Reports, Room 7165,
   441 G Street, NW, Washington, DC 20548.

   [10] The Department provided us with copies of six benchmark analysis
   reports, including two quarterly reports, analyzing articles published
   from April through June 2003 and July through September 2003, and four
   monthly reports, analyzing articles published during October 2003 through
   January 2004.

   [11] This positive factor appeared only in the second quarter report, July
   2003-October 2003. In other reports the factor appeared as "The Bush
   Administration is committed to education" or "The Bush
   Administration/federal government is committed to education."

   [12] The Department's stated purpose in the contract is to determine "if
   the public is gaining an understanding of the law." Using an analysis of
   positive and negative messages--all of which might be true--does not
   further the Department's goal of understanding what the public knows about
   the NCLB Act.

   [13] Talbert Letter, at 6.

   [14] Work Request 2, Statement of Work; Work Request 8, Statement of Work.