We got an FOI request from Big Tobacco – here's how it went

In a world where knowledge is power, information is the antidote to oppression. We citizens must know what those at the top are doing if we’re going to hold them to account. That’s why freedom of information (FOI) legislation is a vital element of any functioning democracy; it helps rebalance power.

As the preamble to the UK’s Freedom of Information Act 2000 enthuses:

this White Paper marks a watershed in the relationship between the government and people of the United Kingdom.

But voters are not the only ones making use of FOI; big business has also spotted an opportunity. The latest examples come from tobacco multinational British American Tobacco making FOI requests in Australia for data from surveys about plain packaging for tobacco products.

This is perverse given corporations are among the most powerful entities on earth – far bigger than many countries. World Bank data shows that, in 2011, over 60% of the 175 largest global economic entities were companies not countries, and that this concentration of power is growing rapidly.

Sadly, it seems, whatever the noble intentions of FOI, those with power want to hang on to it.

In Big Tobacco’s crosshairs

“Making an FOI request” sounds benign enough, but its effects on individual recipients can be traumatic. Six years ago, my colleagues and I had our own experience of this very unwelcome sort of attention, when another tobacco multinational, Philip Morris, decided it wanted access to our research unit’s teen smoking study.

The first we knew of what was to befall us was a peremptory letter from the global law firm Clifford Chance. It demanded a vast array of information, including “all primary data”; “all questionnaires”; “all interviewers’ handbooks and/or instructions”; “all data files”; “all record descriptions” and “all information relating to sampling, data collection, handling of non-response and post-stratification weighting and analysis”.

The letter was framed as a request, but warned us that “under the Act” we were “obliged to respond within 20 working days”. The “or else” was left to our imagination.

At an anxious meeting with the university lawyers, we were advised that we had either to provide the information or, relying solely on the terms of the Act, explain why we would not. And that the repercussions for not doing so were just as serious as the letter implied.

This meant a massive amount of work auditing hundreds of files on what was already a decade-long study. Our response, arguing the material was confidential because we had promised the young people we surveyed that it would only be used by bona fide academic researchers, ran to 60 pages.

Tobacco companies have requested survey data on young people’s smoking habits in the UK and in Australia.Tony Alter/Flickr, CC BY

If at first you fail…

Clifford Chance immediately challenged it and the matter went to the Scottish Information Commissioner for adjudication. The commissioner ruled the initial request illegitimate because the name of the client had not been disclosed.

So, we needn’t have bothered.

Completely unabashed, Philip Morris declared itself, then made a new FOI demand and the whole stressful process began again. So it went on, for two very long years.

We are a university research unit of a dozen people and our funding comes from charitable and public sources. We have no spare capacity. This work had to be done in the evening and at weekends; the worrying was done in the wee small hours.

It stretched us almost to breaking point, and we were left thinking that this was precisely the intention. Our research is a nuisance to tobacco companies. It has shown that advertising does pull children into smoking, that plain packaging discourages uptake, and that in-shop displays are enticing.

It has helped the Scottish and UK governments devise protective legislation, such as the ban on tobacco advertising.

The people prevail

But our attempts to use our suspicions about Philip Morris' nefarious intentions as a reason for refusing the request got nowhere.

The identity of the applicant is irrelevant in FOI. The fact that this was not a request from “the people of the United Kingdom” but a powerful multinational producing an addictive and lethal carcinogen, mattered not a whit.

Fortunately, “the people of the United Kingdom” are more discerning than Westminster policymakers. They felt the tobacco industry’s record of addicting children and then killing one in two of those who don’t escape their clutches did matter. And that its right to information therefore comes way behind the child’s right to privacy and good health.

When the press publicised the story of the FOI request, the outcry was immediate and cacophonous. An editorial in the Daily Record captured the mood as only a tabloid can:

Hell should freeze over before a cigarette company is given help to kill more of our fellow Scots.

We have heard no more from Philip Morris.

It seems FOI does indeed give power to the people, but not quite in the way policymakers intended. And that if power is to be redistributed, it has to be taken away from those at the top as well as given to those at the bottom.

Acknowledgement: I’d like to thank my colleagues Anne Marie Mackintosh and Linda Bauld who were also at the centre of this firestorm. Without their support things would have been much more difficult.

Gerard Hastings receives funding from public and charitable research funding agencies including the World Health Organisation and Cancer Research UK. He is affiliated with Amnesty International.