The Department of Health and Human Services broke the law last year when it told staff members not to speak with the media during the coronavirus pandemic, a federal watchdog found.
In January, BuzzFeed News published internal agency emails obtained through the Freedom of Information Act showing that Michael Caputo, who had been tapped by President Donald Trump to control messaging around the pandemic, had harshly criticized a CDC spokesperson for speaking to CNN about COVID-19 response plans.
Caputo, who was HHS’s assistant secretary of public affairs for several months in 2020, warned employees that they would run afoul of written policies in the playbook for dealing with the press if they agreed to media interviews without his approval. "There are no exceptions," Caputo said in one July 2020 email. He then demanded to know how an HHS official's interview with NPR was approved and the identity of the press officer who had sanctioned it.
Shortly after BuzzFeed News released Caputo's emails, two government watchdog organizations — Open the Government and the Government Accountability Project — filed a formal complaint with the Office of Special Counsel, which oversees potential breaches of anti-gag laws. The groups, which had also obtained their own documents, argued that Caputo's directives and the public affairs playbook he cited had violated HHS and CDC employees' free speech rights as well as the anti-gag provision in the 2012 federal Whistleblower Protection Enhancement Act, which states that any restriction on employees' speech has to be accompanied by language informing them of their rights to blow the whistle.
On Nov. 15, Timothy Cheng, an attorney in the Office of Special Counsel's investigation and prosecution division, sent a letter to Open the Government and the Government Accountability Project confirming that the public affairs playbook did not give any notice of whistleblowers’ rights. “OSC notified HHS of the missing notification and requested that HHS revise the Playbook to incorporate and prominently display the statutory language." HHS agreed to do so, Cheng wrote.
"Besides correcting the Playbook, the revisions also provide a corrective action for Mr. Caputo’s actions, given that he cited the Playbook for his authority," Cheng added.
In an email to BuzzFeed News, Caputo said he did not write the policies in question and was "duty-bound to enforce them."
"I did not break the law, as you insinuate in your story. Not even close," Caputo wrote. "The Office of Special Counsel found the policies I inherited were missing a short phrase of standard bureaucratic notification. I will patiently await the earthquake tremors from your big scoop."
The Office of Special Counsel had previously substantiated allegations that HHS had violated the law during Trump's presidency with three gag orders between January 2017 and May 2018.
Freddy Martinez, a policy analyst at Open the Government, said the special counsel's ruling "confirms that Trump-era officials unlawfully gagged scientists during the outbreak of the pandemic” and "is an important step in holding government officials accountable for their secrecy during the pandemic.”
“Documents reviewed by OSC prove that officials at Health and Human Services clamped down on damaging information about the severity of COVID-19 and limited the free speech of its scientists," Martinez said. "When creating its press policies, HHS officials disregarded its employees’ important whistleblower rights in favor of secrecy."
Irvin McCullough, the Government Accountability Project's deputy director of legislation, also celebrated the ruling. "Agencies should learn a lesson from these anti-gag laws’ renewed enforcement: don’t silence whistleblowers, embrace them," he said. "Otherwise, the watchdogs will come running."
The Office of Special Counsel also probed actions taken by Paul Alexander, Caputo's controversial science adviser. He tried to pressure CDC officials into suppressing and editing the Morbidity and Mortality Weekly Report, a digest of public health information, calling it nothing more than a "hit piece" on the Trump administration and an attempt to lock down schools, according to his emails, which BuzzFeed News also obtained.
However, Cheng said Alexander’s efforts never came to fruition.
"We also do not believe HHS implemented any other nondisclosure policies by Mr. Caputo or Dr. Alexander," Cheng wrote. "Within 6 weeks of Dr. Alexander’s request to stop the reports, Mr. Caputo and Dr. Alexander left HHS."
Alexander did not respond to requests for comment.
An HHS spokesperson did not respond to a request for comment. But in February, a spokesperson told BuzzFeed News the media policy was changed this year and that "employees may, consistent with this policy, speak to members of the press about their work.”
Caputo’s tenure in the government was brief. He worked there from mid-April 2020 through Sept. 16, 2020. Caputo told BuzzFeed News he took a medical leave because of a cancer diagnosis and continued to hold his title until President Joe Biden's inauguration. A couple of days before he left, he posted a video on his Facebook page accusing CDC scientists of “sedition” and being part of a “resistance unit” that was plotting against Trump. Alexander left at the same time.
Updated to include a response from Michael Caputo.