B-306349, Department of Education--No Child Left Behind Newspaper Article, September 30, 2005
Mr. Kent Talbert
Deputy General Counsel
Department of Education
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,
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 (
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,
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.
Gary L. Kepplinger
Deputy General Counsel