TITLE: B-306349, Department of Education--No Child Left Behind Newspaper Article, September 30, 2005
BNUMBER: B-306349
DATE: September 30, 2005
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B-306349, Department of Education--No Child Left Behind Newspaper Article, September 30, 2005

   B-306349

   September 30, 2005

   Mr. Kent Talbert

   Deputy General Counsel

   Department of Education

   Subject: Department of Education--No Child Left Behind Newspaper Article

   Dear Mr. Talbert:

   In the last year, we received two congressional requests regarding the
   Department of Education's (Department) contract with Ketchum, Inc.
   (Ketchum) to promote education programs under the No Child Left Behind Act
   of 2001. These requests asked for our legal opinion as to whether the
   Department violated the publicity or propaganda prohibition by (1)
   producing and distributing a prepackaged news story regarding supplemental
   educational programs, (2) conducting a media analysis measuring the
   media's perceptions of the No Child Left Behind Act and its programs, and
   (3) directing Ketchum to subcontract with Armstrong Williams to promote
   the No Child Left Behind Act and its programs. We have enclosed copies of
   two opinions regarding these three specific activities.

   In the course of our review of the contract and its deliverables, we
   learned that the Department, through Ketchum, had contracted with the
   North American Precis Syndicate (NAPS) to write a newspaper article
   entitled "Parents want Science Classes that Make the Grade." The article
   reports on a study that the Department conducted regarding parents' views
   on the declining science literacy of students. According to the documents
   provided to us, this article, which appeared in numerous small newspapers
   and circulars throughout the country, failed to disclose the Department's
   involvement in its writing. Our case law, including the two recent
   opinions enclosed, has consistently held that materials produced by or at
   the direction of the government that fail to identify the government as
   the source of the materials constitute covert propaganda. See, e.g.,
   B-302710, May 19, 2004. Accordingly, we commend this matter to you to
   determine whether there has been a violation of the publicity or
   propaganda prohibition.

   The Inspector General issued a report, "Review of Department Identified
   Contracts and Grants for Public Relations Services," ED-OIG/I13F-0012,
   September 2005 (IG Report), reviewing similar articles prepared under
   another NAPS contract, finding that the articles did not violate the
   publicity or propaganda restriction. The IG Report explained that, because
   the information conveyed in the articles consisted of information and not
   advocacy of a particular point of view, disclosure of the Department's
   involvement in the writing of the articles was not necessary. IG Report at
   15. The IG Report's conclusions were based upon an analysis similar to the
   analysis contained in a July 24, 2004, opinion of the Office of Legal
   Counsel (OLC), in which OLC concluded that the government source of
   prepackaged news stories need not be disclosed to the audience when the
   content of the news report was purely informational.

   In May of 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). 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." Id. In the conference report submitted to both Houses, the
   conferees specifically noted the controversy between OLC's analysis and
   our analysis of covert propaganda and stated that the section "confirms
   the opinion of the Government Accountability Office dated February 17,
   2005 (B-304272)." H.R. Conf. Rep. No. 109-72, at 158-59 (2005). The
   opinion to which the report was referring was the Comptroller General's
   circular letter addressed to the Heads of Departments, Agencies and others
   concerned, which clearly states that the critical element in determining
   whether prepackaged news stories constitute covert propaganda is whether
   the intended audience is informed of the source of the materials.
   B-304272, Feb. 17, 2005. Hence, in the context of prepackaged news
   stories, Congress has clearly rejected the OLC view and analysis adopted
   in the IG Report.

   In reaching its conclusions, the IG Report did not consider the effect of
   section 6076. We recently contacted the Office of Inspector General
   regarding this matter and confirmed that the IG Report did not consider
   section 6076. We also note that, after the enactment of section 6076, the
   Office of Management and Budget alerted federal agencies to its existence,
   directing that agencies "must fully comply with applicable laws and should
   conduct such review as is necessary to ensure that their practices are
   fully compliant." Memorandum on Statutory Provisions on Video News
   Releases, M-05-20, July 21, 2005. Thus, we urge that you consider the
   recent expression of Congress when reviewing the NAPS articles for
   possible publicity or propaganda and Antideficiency Act violations.

   We appreciate the cooperation of your Department, your office and the
   Office of the Inspector General in dealing with these and other matters.
   Should your review of the NAPS articles raise any questions that we have
   not previously addressed in determining whether materials constitute
   impermissible publicity or propaganda, we would of course welcome them. If
   you have any questions, please feel free to contact Susan A. Poling,
   Managing Associate General Counsel, at (202) 512-2667, or Thomas H.
   Armstrong, Assistant General Counsel for Appropriations Law, at (202)
   512-8257.

   Sincerely yours,

   /signed/

   Gary L. Kepplinger

   Deputy General Counsel

   Enclosures