Senate Votes to Ban Video News Releases
By LAURIE KELLMAN, The Associated Press
Friday, April 15, 2005

WASHINGTON - The Senate passed a measure Thursday that would stop government agencies from using taxpayer funds to disguise video press releases as real news, putting the brakes on a product Democrats call propaganda. President Bush cautioned that some responsibility for full disclosure rests with news outlets.

"It's deceptive to the American people if it's not disclosed," Bush told the American Society of Newspaper Editors on Thursday. "But it's incumbent upon people who use them to say, 'This news clip was produced by the federal government.'"

Senators voted 98-0 to attach the measure, sponsored by Sen. Robert Byrd, D-W.Va., to the $80.6 billion emergency spending bill to fund the wars in Iraq and Afghanistan.

Under it, taxpayer funds would be prohibited from being used for prepackaged news stories unless those stories contain "clear notification within the text or audio of the prepackaged news" that discloses it was prepared or funded by a federal agency.

That way, said Appropriations Committee Chairman Thad Cochran, R-Miss., the authors of the packages cannot be held liable for news outlets that do not disclose the funding source on their own.

The amendment writes into law a Government Accountability Office opinion that said the Bush administration has violated rules against "publicity and propaganda" with releases from several agencies.

The Office of National Drug Control Policy, for example, released a series of videos in which a narrator, sometimes identified as "Karen Ryan," said she was "reporting" on the office's activities. Separately, the Health and Human Services Department's Centers for Medicare and Medicaid Services produced video news releases, also narrated by "Karen Ryan," touting changes to Medicare.

The tapes were offered to local television stations for news programs. Some stations aired the videos without identifying their government origins.

The White House Office of Management and Budget on March 11 countered that the GAO report "fails to recognize the distinction between covert propaganda and purely informational video news reports."

White House Is Impeding Armstrong Williams Probe, Dem. Lawmaker Says
Editor & Publisher, April 15, 2005

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WASHINGTON (AP) The Bush administration is impeding an investigation into the Education Department's hiring of commentator Armstrong Williams by refusing to allow key White House officials to be interviewed, a Democratic lawmaker briefed on the review said Thursday.

In addition, Rep. George Miller (D-Calif.) said Education Secretary Margaret Spellings is considering invoking a privilege that he said would require information to be deleted when the final version is publicly released, which is expected within days.

Miller called for Jack Higgins, the inspector general at the Education Department, to delay the report until Spellings agrees not to invoke "deliberative process privilege" and the White House grants interviews with current or former officials familiar with the deal.

"The public's right to know is absolutely more important than any claim of privilege that the White House or the Department of Education might make," Miller said. "The public has a right to all the facts about possible misconduct."

White House spokeswoman Dana Perino said that under federal law, an inspector general's jurisdiction is limited to his or her own agency -- in this case, the Education Department.

"The IG is authorized to request information from other federal agencies but not from the White House office," Perino said, adding that courts have upheld such protections.

The Education Department initially declined comment on Miller's charges. But early Thursday evening, press secretary Susan Aspey said Spellings has spent the past few days reviewing the report, and that "the inspector general will be releasing it as originally drafted with the secretary's full and complete support and cooperation."

A spokeswoman for the inspector general's office said the agency does not comment on its ongoing work.

The hiring of Williams, a prominent media personality, has opened the Bush administration to criticism about whether its public relations efforts have crossed ethical or legal lines.

Bush himself has said the department erred in not disclosing that Williams was a paid consultant. While speaking to newspaper editors Thursday, the president said in response to a question about media consultants, "It was wrong, what happened there in the Education Department."

Miller, the top Democrat on the House education committee, received a briefing on the draft findings of the investigation on Tuesday because he had requested the report. The report also had been requested by then-Education Secretary Rod Paige.

The department has shut down its contract with Ketchum, the public relations firm hired primarily to promote Bush's No Child Left Behind education law. Of the $1.3 million contract, about $240,000 went to Williams, a conservative commentator.

The money went toward the production of ads, the department says, although Williams was also hired to provide air time to Paige and to influence other black commentators to talk about the law, records show.

Williams wrote a newspaper column syndicated by Tribune Media Services, which cancelled his contract after his arrangement with the Education Department was revealed in January.

Before leaving his post in January, Paige said the hiring of Williams' company had been reviewed and was legal, but he apologized for "perceptions and allegations of ethical lapses." Some lawmakers called the deal government-supported propaganda, which is illegal.

After the hiring of Williams was revealed in a news account, Bush ordered his Cabinet secretaries not to hire columnists to promote administration agendas, saying there "needs to be a nice independent relationship between the White House and the press." He also said that the White House had been unaware that the Education Department hired Williams.

In an interview with The Associated Press in January, Spellings said that she and her chief of staff, David Dunn, did not know about the contract with Williams until after it was signed. Both worked in the White House as domestic policy advisers in Bush's first term.

According to Miller, some of the unnamed White House officials who have been "put off-limits to interviewers" now work at the Education Department. In a letter to White House counsel Harriet Miers, Miller asked that she order full cooperation with the investigation.

"Investigation of the IG involves possible criminal conduct and abuse of federal contracting laws," he wrote. "Accordingly, it is imperative that no one in the administration take action that has the effect of obstructing or undermining this important inquiry."

But several Education Department employees were concerned about the contract:

April 16, 2005
Inquiry Finds Radio Host's Arrangement Raised Flags
By ANNE E. KORNBLUT, NY TIMES

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WASHINGTON, April 15 - Officials at the Education Department expressed concerns about a contract with the conservative commentator Armstrong Williams last year, even bringing it to the attention of a White House policy adviser when it came up for renewal, according to an internal department report released on Friday.

The report, by the department's inspector general, found no evidence of unlawful or unethical behavior in connection with Mr. Williams's contract but criticized top department officials for "poor management decisions" and lax oversight.

"As a result," it said, "the department paid for work that most likely did not reach its intended audience and paid for deliverables that were never received."

The report did not address questions about whether hiring Mr. Williams to promote President Bush's signature education initiative amounted to covert propaganda.

Several measures to tighten accountability over contracts were suggested, and Education Secretary Margaret Spellings promised to put them in place.

The report portrayed former Education Secretary Rod Paige and his top advisers as the driving force behind the $240,000 agreement with Mr. Williams, a commentator who promoted the No Child Left Behind Act.

Mr. Paige, who is black, told department officials that "his main concern was with reaching the minority community."

Mr. Williams is a prominent black conservative who had a syndicated newspaper column and television and radio programs.

Factions in the Education Department that questioned his contract were ignored.

Two department officials in particular, D. J. Nordquist, the former deputy director of public affairs who is now acting public affairs director, and Ann Radice, former chief of staff, had expressed doubts about the contract, the report found.

"Their concerns included the cost of the program, the inability to measure the effectiveness of the program, and the inherent conflict of Mr. Williams's role as both a public relations executive and commentator," it said.

The "concerns were so strong" that when it came time for the contract to be renewed a year ago, Ms. Nordquist and Ms. Radice each contacted David Dunn, an adviser to Ms. Spellings, who was Mr. Bush's domestic policy adviser. Mr. Dunn is now chief of staff at the department.

Mr. Dunn, who was briefly sent to the department early last year, "indicated he agreed with their concerns," the report found. He later followed up, asking Ms. Nordquist what had happened to the contract. By then, it had been renewed.

No one at the White House or the Education Department intervened to stop the contract or sever ties with the public relations firm, Ketchum, a part of Omnicom, that helped set it up, until after USA Today reported on it in January. The department's internal report portrayed Mr. Paige and his top aides as the chief supporters of the contract, and Ms. Spellings seconded that in her response to the report.

"When the secretary, his/her chief of staff and other senior officers urge, hint, suggest or recommend anything, it can start a chain reaction within the building to carry out that request, such as what occurred beginning in March 2003," Ms. Spellings wrote.

She took no responsibility for the contract, although education was then in her portfolio as Mr. Bush's domestic policy adviser.

"The people who were responsible for this contract and these events are no longer here," Ms. Spellings said in an interview with a group of reporters after the report was made public.

In an interview on Friday, Mr. Williams said: "We all have to bear responsibility. I accept mine. I accept the consequences. I'm just glad they've come out with a report, and hopefully we can just put it behind us. No hard feelings."

Mr. Paige, who stepped down as Mr. Bush began his second term, said in his final days in office that he found it deeply disturbing that the contract had marred the department's reputation.

Representative George Miller of California, the ranking Democrat on the House Committee on Education and the Workforce, said the report "paints a very troubling picture of irresponsible, and potentially criminal, mismanagement of expensive contracts by the Department of Education."

Mr. Miller, who had requested the inquiry by the inspector general, had complained earlier that the White House had invoked executive privilege and prevented its staff members from cooperating.

Senator Edward M. Kennedy of Massachusetts, the ranking Democrat on the Senate panel that oversees education, praised Ms. Spellings as "taking this issue seriously" but criticized the administration for hiring Mr. Williams.

Armstrong Williams: Education Propaganda, Payola, or Whatever You Call it, is Still False ADvertising and Political Misconduct

Taxpayer-Funded Political PR: Bush Administration Pays Media Commentator to Support No Child Left Behind

Media For Democracy Asks President George Bush to Stop Paying News Reporters

Court recognizes deliberative process privilege for government
News Media Update, 12/14/98

What is "deliberative process privilege"?

D.C. Circuit distinguishes between "presidential" and "deliberative process" privilege and extends the former beyond communications directly with the President.

In United States v. Nixon, 418 U.S. 683 (1974), the Supreme Court first recognized a privilege for presidential communications, while a privilege based on the "deliberative process" is well recognized under the Freedom of Information Act and has common law origins. In In re Sealed Case, 116 F.3d 550 (D.C. Cir. 1997), the court in a scholarly opinion authored by Judge Wald essayed the difference between the two in the context of a subpoena duces tecum issued by a grand jury at the instance of an Office of Independent Counsel to the White House Counsel's Office for documents related to a White House investigation of then Secretary of Agriculture Espy. All of the withheld documents qualified for the deliberative process privilege, but none of the documents had been seen by the President. The court, indicating that the term "executive privilege" had often been loosely used without distinction between different bases for the privilege, concluded that the natures of the deliberative process privilege and the presidential privilege differ, the former being more easily outweighed by governmental interests. In particular, the deliberative process privilege does not protect purely factual information, while the presidential privilege does, and the deliberative process privilege only protects pre-decisional documents, while the presidential privilege is not so limited. Also, the deliberative process privilege is generally unavailing when the information sought relates to alleged government misconduct. Under Nixon, of course, even the presidential privilege is not absolute by any means, but can be outweighed by the need for evidence in a criminal case. The court considered the various argument for and against extending the presidential privilege beyond communications directly with the President and decided that the balance favored a limited extension to reach "communications authored or solicited and received by those members of an immediate White House advisor's staff who have broad and significant responsibility for investigating and formulating advice to be given the President on the particular matter to which the communications relate." The court also said that "the privilege should not extend to staff outside the White House in executive branch agencies." It is not clear in the opinion whether communications, which are solicited and received by White House staff but from executive branch agency personnel, are within the presidential privilege or not. The court did make clear that its decision only related to demands for such information in a judicial proceeding and did not relate to executive/congressional disputes. The question then becomes: what is the effect of this presidential privilege in the face of a grand jury subpoena? The court decides that the standard articulated in Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973), also a grand jury subpoena case, should govern application of the privilege in this case: in order to overcome the privilege so as to require in camera court review of the particular documents the grand jury must demonstrate that it has an important need for the information and that it is practically unavailable from other sources. Once that standard is met, the district court must review the particular documents in camera merely to assure that they are reasonably relevant to the grand jury's investigation. Hence, the privilege really only has force to avoid in camera review at all.

Court recognizes deliberative process privilege for government
News Media Update, 12/14/98

COLORADO--The state Supreme Court in Denver expressly recognized the existence of a"deliberative process" privilege in a decision in late November.
The privilege exempts from disclosure materials that reveal the mental processes of governmental officials generated prior to reaching a decision. Materials containing post-decisional analyses or that do not reveal the "give and take" of decision-making are not privileged.

Writing for a unanimous court, Justice Alex Martinez noted that the privilege is intended to promote the open exchange of opinions between governmental officials and to protect the quality of governmental decision-making. The privilege typically covers "recommendations, advisory opinions, draft documents, proposals, suggestions and other subjective documents that reflect the personal opinions of the writer rather than the policy of the agency," Martinez wrote.

However, the court noted that the privilege is a qualified one. Taking its lead from the federal open records case law and state common law, the court held that the privilege protects material that is "predecisional" and "deliberative" in nature. Documents produced after a decision and designed to explain it are not privileged, it noted.

The court held that the government bears the initial burden of proof in asserting the privilege and must meet a series of technical requirements. Furthermore, the privilege may be overcome if the requester can show an interest in disclosure greater than the government's interest in confidentiality, it added.

The case arose when respondent David White requested copies of materials in the possession of the Community Services Department of the City of Colorado Springs. Among the materials he sought was a evaluative report created by an outside consultant at the behest of the department head. The records custodian denied White access to the report on the grounds that it was privileged under the governmental deliberative process privilege.

White then applied for an order to show cause why the report should not be released and challenged the existence of the deliberative process privilege in Colorado. After recognizing the privilege's existence, the trial court discharged the order and found that the state open records laws excepted the report from disclosure. The court of appeals reversed the decision.

The high court noted that although the report was a public record, it contained an evaluation of governmental policies and working conditions, along with suggestions for improvement. Because the report was designed to guide the government in developing strategies for improving a troubled division, the court determined that it was both predecisional and deliberative in nature and was therefore privileged. (City of Colorado Springs v. White; Media Counsel: John L. Maska, Colorado Springs)

State high court: 'Deliberative process' is a limited exemption

Illinois Court refuses to recognize "deliberative process privilege"