Tobacco companies should be free to use freedom of information laws, even if we don't like it

News that British American Tobacco is trying to access survey data on teenagers and tobacco use from the Victorian Cancer Council through freedom of information (FOI) laws has attracted the ire of public health advocates.

The survey data is supposed to inform the Cancer Council’s anti-smoking strategies. There are concerns that the tobacco company wants access to it for the opposite purpose – to tailor its products and marketing to young people.

But is this a misuse of FOI legislation? And can public agencies resist these types of access requests? If tobacco companies do have the right to access this data, can we do anything to prevent potential harms to public health?

The purpose of FOI laws

The Commonwealth and all states and territories have FOI laws. Among other reasons, these laws enhance the transparency of public sector activities and recognise that:

information gathered by government at public expense is a national resource and should be available more widely to the public.

FOI laws say government information should be accessible unless public interest in disclosure is outweighed by another important interest. The laws protect certain categories of information from being released, such as information related to national security, law enforcement or commercial confidences, and information that could harm someone’s privacy.

If a public agency conducts a survey and the results identify people who answered the survey and their personal details, for instance, the agency generally cannot release that information without the consent of the people involved.

In the case of British American Tobacco requesting Cancer Council Victoria’s survey data, the results have presumably been de-identified. The concern is not that the names of teenagers who did the survey will be released but that the data will be used to harm public health more generally.

‘Nefarious’ uses?

Still, public bodies cannot refuse to disclose information solely on the basis of suspicion that the information will be used for mischievous purposes, or to embarrass the government.

If we believe public sector openness and transparency are important, we have to accept that the right to access information should also be available to those whose views, actions or products we may oppose.

Members of the public might refuse to fill out surveys if they worry about how the data could be used in the future.K.G. Schneider/Flickr, CC BY

We should not give public sector bodies too much discretion to pick and choose the requests they think are nefarious. If we support open government, FOI laws rightly require strong and clear justifications for withholding information from scrutiny.

Nonetheless, British American Tobacco’s FOI request raises some concerns.

First, it could put a damper on public health research; government bodies may hesitate to collect data on health issues if they worry they’ll have turn it over to companies that could use it to undermine public health. And members of the public might refuse to fill out surveys if they worry about how the data could be used in the future.

As already mentioned, tobacco companies might use the data to add to their efforts to entice young people to start smoking. And the move raises a question of whether it foreshadows an onslaught of FOI requests by tobacco, alcohol and junk food companies bent on peddling their products to youth and distracting public agencies from their work.

Current protections

There are differences in the wording of FOI laws across the country, but they typically have rules and procedures to deal with some of these concerns. Where a public agency obtained information under the promise of confidentiality, FOI laws might protect its release, if doing so could limit the agency’s ability to collect similar information again.

The laws may protect against “vexatious” requests, including repeated access requests that amount to an abuse of the FOI process. In 2011, the Institute of Public Affairs submitted hundreds of FOI requests for documents on climate change issues, for instance, prompting a government warning that the volume of requests was unreasonable.

In the current FOI dispute, British American Tobacco says it wants the information to ascertain whether it substantiates government claims about the impact of plain tobacco packaging laws. Public bodies should be open about data that tests whether government strategies are helping achieve desired goals, such as reducing tobacco use.

Even if British American Tobacco’s motive is to market cigarettes to youth, restricting its use of FOI laws is not the best legal response, if it helps public bodies generally become more secretive. Instead, we should look for solutions that more directly address the harms of tobacco use, including strengthening and enforcing the laws that prohibit the promotion and sale of tobacco products to young people.

Nola Ries does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.