Link: GAO Opinion
Agency: Department of Defense
General Counsel P.C. Highlight:
The issue before is whether the Department of Defense’s (DOD) use of appropriations for its retired military officers (RMO) outreach program violated prohibitions on the use of appropriated funds for publicity or propaganda activities. GAO states that DOD Appropriations Acts for fiscal years 2002 through 2008 provide, “No part of any appropriation contained in this Act shall be used for publicity or propaganda purposes not authorized by the Congress.” The prohibition applies to appropriations for Operation and Maintenance, Defense-Wide, which funds OASD-PA and its outreach programs. Although the prohibition on the use of appropriated funds for publicity or propaganda has been in effect, in one form or another, for decades, GAO has rarely found violations of the prohibition. This reflects the wide discretion that GAO has historically recognized agencies have in their informational activities and defense of their policies. Federal agencies have a responsibility to inform the public about their activities and programs, explain their policies, and disseminate information in defense of those policies or an administration’s point of view. Moreover, federal agencies may wish to explain the basis for, or even the philosophical underpinnings of, policies advanced by elected officials and their staff in order for the public to evaluate and form opinions on those policies. Thus, activities such as meetings, conference calls, luncheons with agency leadership, and travel do not implicate the publicity or propaganda prohibition where those activities are reasonably related to the agency’s duty to inform the public of agency actions, programs, and policies, or justify and rebut attacks upon its policies.
GAO has identified three categories of agency communications or agency-disseminated materials that are restricted by the prohibition: (1) covert; (2) purely partisan; and (3) those constituting self-aggrandizement. GAO has found violations when agency communications or agency-disseminated materials are (1) covert as to their source or (2) purely partisan in nature. Agency communications are considered covert and violate the prohibition if they are misleading as to their origin, or if the agency conceals its role in sponsoring the materials. Concealing the agency’s role in a communication goes beyond the range of acceptable agency public information activities. To avoid violating the prohibition, an agency must identify itself as the source of the information it distributes. GAO views the failure to do so, that is, the covert nature of the agency’s communication, as indicating a “publicity or propaganda purpose” as that phrase is used in the prohibition. Otherwise, to the public it may appear that an independent party endorses the agency’s position. Hence, materials prepared by an agency or agency contractors and circulated by them as the ostensible position of parties outside the agency constitute covert propaganda and violate the prohibition. The prohibition applies not just to agency-prepared materials but to agency communication efforts generally, including communications prepared by contractors at the behest of the agency. GAO case law establishes that an agency is engaging in covert communications and thus violating the publicity or propaganda prohibition when it uses its appropriations to fund communications that do not disclose that the agency paid for those communications. Here, unlike the State Department’s contracts for articles and commentary and the contract between the Education Department and the syndicated columnist, GAO found no evidence, nor was it alleged, that DOD contracted with, or otherwise paid, RMOs for positive commentary. While DOD did provide talking points and other information to RMOs, and some DOD staff referred to the RMOs as “surrogates,” RMOs clearly were not paid by DOD to be news readers or otherwise to deliver text provided to them by DOD. Moreover, GAO found no evidence that DOD concealed from the public its outreach to RMOs or its role in providing them with information and materials. Indeed, it appears that the public was aware of the program. Materials that OASD-PA made available to RMOs were clearly identified as DOD products. GAO also found no evidence that DOD asked RMOs to conceal the outreach program or the source of their information. The only restriction GAO found that DOD imposed on RMOs was that they not identify by name any particular individual as a source.
Further, DOD’s contract with Omnitec, Inc., to track RMO commentary and report on the media appearances does not violate the publicity or propaganda prohibition. As a general matter, an agency may use appropriations to engage in information gathering and related activities such as analyzing media reports of agency programs, policies, and positions to further its legitimate interest in providing information to the public. There is no doubt that DOD attempted to favorably influence public opinion with respect to the Administration’s war policies in Iraq and Afghanistan through the RMOs with conference calls, meetings, travel, and access to senior DOD officials. For the reasons set out above, however, GAO concludes that these activities did not violate the publicity or propaganda prohibition. Nevertheless, GAO believes that legitimate questions were raised by Members of Congress and the press regarding the intersection of DOD’s public affairs activities and the possibility of compromised procurements resulting from potential competitive advantages for defense contractors with commercial ties to RMOs. DOD apparently had no policies specific to RMO outreach, even though it has guidance with regard to outreach to other groups and guidance regarding credentialed media representatives. Moreover, there is no indication that DOD recognized the multiple roles of RMOs, or the potential implications of those multiple roles, as media representatives, members of an outreach group, and affiliates of defense contractors. While DOD understandably values its ties with retired military officers, GAO believes that, before undertaking anything along the lines of the now-terminated program at issue in this decision, DOD should consider whether it needs to have additional policies and procedures in place to protect the integrity of, and public confidence in, its public affairs efforts and to ensure the transparency of its public relations activities. To that end, we are sending copies of this opinion to the Assistant Secretary of Defense for Public Affairs and DOD’s General Counsel.