Office of Special Counsel Holds HHS Accountable for its Illegal Gag Orders

Washington – An investigation by the Office of Special Counsel found that the Department of Health and Human Services (HHS) broke federal law when it gagged its scientist during the early outbreak of the coronavirus pandemic. The Special Counsel opened the investigation following a complaint submitted by Open The Government and Government Accountability Project in February of this year.

The groups filed the complaint when documents they obtained under the Freedom of Information Act revealed that Trump-era officials at HHS restricted speech at the agency without reminding employees of their whistleblower rights. While federal agencies may restrict some speech of their employees, they may not do so without disclosing that the restrictions do not supersede an employees’ whistleblower rights. The Office of Special Counsel confirmed that HHS officials broke federal law when they issued new media policies that excluded this critical disclaimer.

In its media policies, HHS officials wrote that all public statements made by its employees must be cleared by the Assistant Secretary for Public Affairs (ASPA). Michael Caputo, who was then the head of ASPA, wrote: “According to longstanding policy, no media interviews are permitted without HHS ASPA clearance. There are no exceptions.” Another Trump-era loyalist, Dr. Paul Alexander demanded an “immediate stop” to scientific reports to health professionals unless Dr. Alexander cleared the reports in advance. The Office of Special Counsel found both Mr. Caputo and Dr. Alexander in violation of federal law.

Freddy Martinez, Policy Analyst at Open The Government, said:

“The ruling by the Office of Special Counsel (OSC) confirms the allegation by Open the Government and Government Accountability Project that Trump-era officials unlawfully gagged scientists during the outbreak of the pandemic. Documents reviewed by OSC prove that officials HHS clamped down on damaging information about the severity of COVID-19 and limited the free speech of its scientists. When creating its press policies, HHS officials disregarded its employees’ important whistleblower rights in favor of secrecy. This ruling by OSC is an important step in holding government officials accountable for their secrecy during the pandemic.”

Tom Devine, Legal Director with the Government Accountability Project, said:

“Anti-gag laws are as important as retaliation protections because prior restraint keeps the truth a secret. While anti-gag rights have been the law since 1989, most agencies are unaware of or ignore them. That’s why it is so important that the Office of Special Counsel has obtained corrective action to stop gags in cases where violations were exposed. None were more important than keeping open the flow of truth about COVID-19.” 

Freddy Martinez
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