THE TOBACCO INDUSTRY’S STRATEGIC USE OF FREEDOM OF INFORMATION LAWS: A COMPARATIVE ANALYSIS*
Table of contents
Accountability and transparency of government, as fundamental principles underpinning western liberal democracies, are markedly improved and promoted by access to government information. However, in various jurisdictions, evidence is increasing that tobacco companies are using laws ensuring freedom of information (‘FOI’) in order to disrupt government agencies’ allocation and use of public resources. FOI requests are but one strategy employed by the tobacco industry in its ‘vigorous, sophisticated and well-coordinated’1 response to worldwide efforts to enhance tobacco control policy and regulation. Tobacco companies have been known to conceal their identities by making FOI requests through law firms, public relations firms, consultants or front organisations such as smokers’ rights groups.2 The irony in the tobacco industry’s prolific use of FOI requests lies in the industry’s history of suppressing information and evidence on the health risks associated with the use of its products.3 That history alone provides a basis for scrutinising the extent and legitimacy of the tobacco industry’s use or misuse of FOI laws.
The tobacco industry uses FOI for various reasons, including: to inundate government agencies with FOI requests that are so broad as to divert them from their primary regulatory functions; to obtain access to raw scientific data in order to challenge the scientific basis of reports concluding that tobacco has deleterious health effects or that certain tobacco control measures are effective; to attack scientists who publish reports showing that tobacco is harmful; to resist tobacco regulation by accusing anti-tobacco groups of engaging in illegal activities, such as lobbying; and to gather information to better anticipate regulatory developments in order to resist them. A significant challenge arises for FOI administrators in distinguishing between legitimate requests and requests that may amount to deliberate abuse of the FOI system.
In Australia, the world-first introduction of standardised (or so-called ‘plain’) tobacco packaging from December 2012 has been a focal point of attention in the tobacco control and broader public health communities around the world, as well as an area of concern for marketing executives and some intellectual property lawyers. Australia’s measure has led to enhanced tobacco industry use of FOI requests,4 in addition to numerous legal and other challenges to the legislation.5 As we have explained elsewhere, the Australian FOI regime has significantly improved access to government information, but the structure of the legislation and charging system has enabled abuse by the tobacco industry and points to the need for reform.6 The federal Freedom of Information Act 1982 (Cth) operates alongside state FOI legislation.7 In 2010, the federal legislation was amended in an attempt to further entrench a pro-disclosure culture across government.8 In April 2014, the Australian Attorney-General’s Department denied a request made by news service International Arbitration Reporter under the relevant federal legislation for access to Australia’s statement of defence in the investment treaty claim brought against Australia by Philip Morris Asia Limited. The Department referred to the public interest and legal professional privilege in refusing access to the information sought,9 expressing the view that release of the statement of defence could be detrimental to the ongoing proceedings under international investment law10 and within the World Trade Organization.11 More recently, the Australian government announced a plan to reverse some of the major reforms to FOI introduced by the previous Labor government, including the disbandment of the Office of the Australian Information Commissioner,12 in order to generate financial savings.13 These changes have been criticised on the basis of their reduction of government scrutiny;14 whether they will address the difficulties arising from tobacco industry FOI requests in Australia remains to be seen.
The United Kingdom finds itself in a comparable situation to that of Australia with respect to tobacco regulation. In July 2013, the UK Health Secretary, Jeremy Hunt, announced that the government had decided to wait until the ‘emerging impact’ of the decision to introduce plain packaging of tobacco products in Australia could be measured before making a decision on this issue in England.15 The then UK public health minister, Anna Soubry, reiterated the government’s ‘wait and see’ approach in statements to the House of Commons on 12 July and 16 July 2013, stating that the UK government ‘intend[s] to wait, so we can benefit from the experience of countries such as Australia’.16
Nevertheless, in November 2013, the UK government established an independent review of standardised tobacco packaging,17 which eventually concluded that standardised packaging ‘is very likely to … have a positive impact on public health’.18 On 21 January 2015, the UK public health minister Jane Ellison confirmed that the government supported the public health case for introducing the policy, stating that, ‘having considered all the evidence’, she considered plain packaging to be ‘a proportionate and justified response’ to the public health harms of tobacco smoking.19 Plain packaging legislation was approved by MPs on 11 March 2015, followed by the House of Lords on 16 March 2015, with entry into force expected by May 2016, together with the European Tobacco Products Directive,20 which is also being challenged by tobacco companies.21
An industry reaction to the UK’s introduction of plain packaging—through FOI as well as any available domestic and international legal fora—was to be expected and is already taking place. The UK tobacco industry has displayed aggressive opposition to the plain packaging proposal. In February 2015, British American Tobacco (‘BAT’) declared that it would pursue legal action against the UK government if plain packaging legislation was introduced. Jerome Abelman, BAT’s director of corporate and regulatory affairs, stated that ‘[i]f regulation comes through, we will be forced into the position of a legal challenge’ and that ‘we expect the lawsuits will follow very quickly’.22 In due course, BAT and Philip Morris International filed claims in the High Court on 22 May 2015.23
In assessing the robustness of the UK’s FOI legislation in the face of tobacco industry requests, as one component of the industry’s assault on tobacco regulation, this article compares the FOI regime and experiences with tobacco industry requests in New Zealand and the United States (‘US’). In all three jurisdictions, the tobacco industry has a demonstrated track record of opposing and seeking to delay government tobacco-control action, including through the use of FOI laws. The comparative analysis in this article aims to assist in working towards the appropriate balance between the need to maintain a transparent government and the need to resist misuse of the FOI system. The conclusions are directed towards the UK in reference to the tobacco industry, but they may apply more broadly to other FOI regimes and the potential for abuse of those regimes by any industry or entity. Although beyond the scope of this paper, analogies to the tobacco industry in other industries such as the processed food and alcohol industries may also raise questions about their strategic reliance on FOI.24
Part II of this article explains the social and historical context and current operation of the FOI legislation in the UK, New Zealand, and the US (which has the oldest FOI regime). Part III examines how the tobacco industry has used FOI laws in these jurisdictions, revealing the challenges that tobacco industry FOI requests pose to government agencies and regulation. Part IV demonstrates in more detail the administrative burden placed on government in complying with FOI laws in each jurisdiction, including discussion of: how many requests are being filed and by whom; financial costs of compliance; and challenging time limits for responding to FOI requests. Part V of this article then evaluates the effectiveness of these FOI systems in addressing tobacco industry requests, through avenues such as refusing overly broad or improper requests, imposing financial charges for making FOI requests, and handling vexatious applicants and applications. In conclusion, we offer suggestions for reform that may enhance the capacity of governments to counter the misuse of their FOI systems by the tobacco industry, while upholding the primary purpose of FOI: accountability through transparency. In particular, appropriate reforms could include introducing a ceiling on the cost or size of requests, revising the approach to charging for requests to reduce the proportion of the financial burden borne by government for large requests, and allowing greater consideration of the identity of the requester and the purpose of the request.
By comparison with other western liberal democracies, the UK was rather tardy in introducing FOI legislation.25 The UK Parliament passed the Freedom of Information Act 2000 (UK) (‘UK FOIA’) in November 2000, following extensive debate, ‘a long process of gestation’ and ‘a long period of revision widely seen as a watering down’.26 Patrick Birkinshaw has described the UK FOIA as a ‘major constitutional innovation’ of the Blair government, particularly given the UK’s longstanding ‘culture of official secrecy’.27 The UK FOIA came into effect incrementally through ‘publication schemes’, which were intended to encourage proactive forms of public disclosure by all public authorities covered by the Act.28 Publication schemes are guides to the information routinely published by a public authority, detailing the format available for each type of information and applicable charges.29 The Information Commissioner’s Office (‘ICO’) approved a Model Publication Scheme in 2008, which outlines the framework that public authorities are required to adopt under the UK FOIA.30
The UK FOIA creates a presumption in favour of access to information held by public authorities.31 A person requesting information is entitled to be informed in writing by the authority whether it holds the information, and if so to have that information provided.32 Part II of the UK FOIA contains twenty-four exemptions to the general right of access to information, classified as absolute or qualified exemptions. Where the requested information is subject to a qualified exemption only, the ‘public interest’ test applies: whether the public interest in maintaining the exemption outweighs the public interest in disclosure.33
The UK FOIA has promoted a ‘culture of greater openness’,34 building on the transparency required by that Act.35 For example, the gov.uk website publishes ‘transparency data’36 and the data.gov.uk website provides a single searchable website for public data from all central government departments, as well as other public sector bodies and local authorities.37 However, on one view, although the UK FOIA has achieved its primary objective of increasing transparency (and, to some extent, accountability of government), it has not achieved many of the secondary objectives or ‘wider democratic goals’ and ‘transformative aims’ of the Act, such as improved government decision-making, greater public understanding, and increased participation and trust in government.38
In New Zealand, the Official Information Act 1982 (NZ) (‘OIA’) and the Local Government Official Information and Meetings Act 1987 (NZ) provide the primary means for access to government information. The origins of the OIA lie in the findings and recommendations of the Committee on Official Information, chaired by Sir Alan Danks (‘Danks Committee’), established in 1978 as the open government movement took hold in New Zealand.39 According to its long title, the OIA strives ‘to make official information more freely available’. Its primary purpose is to ‘increase … the availability of official information’ to the New Zealand people, including so as to enhance their ‘effective participation’ in government and promote the accountability of government, while protecting official information consistent with ‘the public interest and the preservation of personal privacy’.40 Balancing these goals remains a difficult legislative exercise.41
The OIA creates a presumption of availability: ‘information shall be made available unless there is good reason for withholding it’.42 A ‘public interest’ test is imposed by section 9 of the OIA,43 which applies in specific circumstances including (for example) to protect a trade secret or the commercial position of the person supplying or the subject of the information;44 to protect confidential information or information that has been or could be legally compellable;45 or to avoid prejudice to public health and safety measures.46 In those circumstances, good reason for withholding official information exists, unless the withholding of that information in the particular case is outweighed by other considerations that render it desirable, in the public interest, to make the information available.47 Conclusive reasons for withholding official information are listed in section 6 of the OIA, for example where the making available of the information would be likely to:48 prejudice national security or international relations;49 prejudice confidential information provided to the New Zealand government by another government;50 prejudice law enforcement activities;51 endanger the safety of any person;52 or cause serious damage to the New Zealand economy.53
According to the Information Commissioner’s Office, the OIA is generally viewed as having succeeded in enhancing government openness and transparency, or at least to have been more successful than FOI regimes in comparable jurisdictions.54 Similarly, former New Zealand Privacy Commissioner Marie Schroff has expressed the view that the OIA has ‘been absorbed into the fabric of New Zealand government’ and that its greatest success has been its ‘wide and inconspicuous acceptance’.55 By contrast, Rick Snell observes that, at the time of its inception, the OIA was viewed by many New Zealanders as ‘a poor compromise between the Official Secrets Act and freedom of information legislation’.56 Steven Price’s examination of hundreds of OIA requests highlighted breaches of the time limit and failures to observe the requirements of the Act.57 New Zealand Deputy Ombudsman Leo Donnelly cited examples of negative attitudes towards the OIA within government departments and observed that ‘there will always be game playing in FOI matters, particularly in respect of requests for policy advice or politically sensitive information’.58 In her 2007 review of the OIA, Nicola White concluded, based on interviews with requesters and responders to FOI requests, that the OIA has promoted a culture of greater openness of government without enhancing trust in government and while having a ‘chilling’ effect on government policy processes and the recording of information.59
In the United States, the Freedom of Information Act (US)60 (‘US FOIA’) ‘serves as the foundation for public oversight and transparency’ of the operation of the executive branch.61 Enacted in 1966,62 the US FOIA was considered a ‘somewhat revolutionary’ law.63 Unlike the disclosure laws of Sweden and Finland at the time, the US model presumed access to information and required agencies to justify their decision to withhold records.64 The US FOIA establishes a statutory right of access to information for ‘any person’65 to records of federal agencies66 and departments of the executive branch of government, unless the records are exempt from disclosure.67 The US FOIA contains an exhaustive categorisation68 of exempt records that may, but need not be,69 protected from disclosure,70 including classified national defence and foreign policy information;71 internal agency rules and practices;72 information that is prohibited from disclosure by another federal law;73 trade secrets;74 information involving matters of personal privacy;75 and records compiled for law enforcement purposes.76
The US FOIA is considered a legislative manifestation of ‘the people’s right to know’ about the operation and activities of government,77 ‘often hailed as the great initiator of open government’.78 However, US administrations have interpreted the requirements of the Act differently.79 For instance, the George W Bush administration did not embrace the notion of transparency and full disclosure; rather, it mandated that federal agency and department heads release documents ‘only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information’.80 By contrast, President Barack Obama and Attorney General Eric Holder have circulated memoranda to all government agencies, directing them to ‘adopt a presumption in favour of disclosure’ and stressing that the US FOIA is a legislative statement of the US’s ‘profound national commitment to ensuring an open Government’.81 The Second Open Government National Action Plan, issued in 2013, states that President Obama ‘has prioritised making government more open and accountable, and has taken substantial steps to increase … transparency in government’.82
The Office of Information Policy (‘OIP’), situated within the Department of Justice, is tasked with ‘encouraging agency compliance’ with the US FOIA and ensuring the full implementation of the President’s FOIA memorandum and the Attorney-General’s FOIA guidelines across government.83 However, many agencies are still struggling to implement proactive disclosure. In its ‘2013 Policy Recommendations for Improving Freedom of Information Act Procedures’, the Office of Government Information Services (‘OGIS’) identified the challenges faced by agency FOIA professionals working with colleagues ‘to obtain responsive records and recognise FOI as a priority’ as an area for improvement.84 The OGIS recommended that federal agencies ‘[r]emind all staff of the importance of FOIA and recognize FOIA as a priority and everyone’s responsibility’.85
A literature review by Savell, Gilmore, and Fooks identified six main strategies used by the tobacco industry to influence marketing regulation:
FOI requests are therefore just one strategy that has been deployed by the tobacco industry in its coordinated efforts to thwart legislative developments that are counter to its interests, such as the introduction of plain tobacco packaging regimes. The tobacco industry in each of the three jurisdictions examined has been found to covertly use third parties, including public relations companies and law firms, to make FOI requests for information held by public bodies, including government departments and universities.87 That these third parties refuse to confirm that they are acting on behalf of tobacco companies in making FOI requests is noteworthy, given their demands for greater openness from the organisations they target.88
In March 2011, the UK government published its five-year tobacco control strategy in a white paper entitled ‘Healthy Lives, Healthy People: A Tobacco Control Plan for England’, which included a commitment to exploring options to reduce the promotional impact of tobacco packaging.89 A UK-wide public consultation on plain packaging of tobacco products was held from 16 April to 10 August 2012.90 The consultation received 2,444 detailed responses that addressed multiple consultation questions, as well as 665,989 ‘campaign’ responses (which encouraged multiple respondents to answer only a few consultation questions).91 On 12 July 2013, the Department of Health published a summary report on the public consultation responses.92 The government conducted a second public consultation from June to August 2014, with the aim of obtaining new or additional information that had arisen since the 2012 consultation.93
The UK Department of Health received a number of requests for records relating to its public consultation on plain packaging of tobacco products. One such request was for all correspondence between the Department and five tobacco control organisations.94 Another request was for all correspondence between the Department and the Australian Department of Health, the New Zealand Department of Health and ‘any and all third parties’ (including MPs, individuals and organisations), in relation to the Department’s tobacco control campaigns and consultations.95
The Department did not release all of the relevant records requested, on the ground that certain records were exempt under section 27 of the UK FOIA, as their disclosure would either prejudice or be likely to prejudice relations between the UK and other states, or because they contained confidential information provided by another state or international organisation. The Department concluded that the public interest in maintaining the exemption outweighed the public interest in releasing the records, taking into account the ‘strong public interest’ in maintaining good international relations and enabling the UK to conduct relationships with the governments and third parties in Australia and New Zealand ‘without fear of provoking a negative reaction’.96
A 2013 newspaper advertisement by UK tobacco company Gallaher, which questioned the evidence base for the UK government’s proposal to introduce plain packaging for tobacco products, aptly illustrates the tobacco industry’s misleading use of material that it obtains through FOI. The advertisement featured a line from email correspondence between the UK Department of Health and the Australian Department of Health requesting evidence about the effectiveness of plain packaging: ‘There isn’t any hard evidence to show that it works’. The advertisement added, ‘We couldn’t have put it better ourselves’. The advertisement received thirteen complaints and was banned by the Advertising Standards Authority (‘ASA’). The ASA held that the advertisement was misleading, as the email predated research and the introduction of plain packaging in Australia, and that at the time the advertisement was published, plain packaging legislation in Australia had been in force for four months, so that it ‘would still have been true to state that there was no hard evidence’. While Gallaher appealed to the ASA’s independent reviewer, which disagreed with the decision to ban the advertisement, the ASA reissued its ruling and maintained the ban.97
The tobacco industry has also used FOI requests as a ‘competitive weapon’ to challenge and stifle tobacco-related research of academic institutions in the UK.98 In 2009-2010, solicitors acting on behalf of Philip Morris International (‘PMI’), submitted three separate information requests to the University of Stirling in Scotland.99 The first was for information about a project, entitled ‘Piloting the Use of Plain Packs in a Real Life Environment: Experiences of Young Adult Smokers’, being undertaken by the University’s Centre for Tobacco Control Research (‘CTCR’).100 The second request was for information from a survey entitled ‘Cancer Research: UK CTCR survey of adolescents’ reactions to tobacco marketing’, referred to in a report produced by the CTCR.101 In each instance, the University refused to comply with PMI’s request on the ground that it was vexatious under section 14(1) of the Freedom of Information (Scotland) Act 2002 (‘FOISA’). PMI was dissatisfied with the outcome of a review of the University’s decision and applied to the Scottish Information Commissioner (‘SIC’) for a decision.
In its submission to the SIC, the University argued that PMI’s request was designed to cause disruption or annoyance to the University, consistently with the use of FOI legislation by the tobacco industry in other jurisdictions to disrupt the work of health professionals and others ‘involved in work it considers to be against its own interests’.102 The SIC held that the University had unreasonably sought clarification from PMI before responding to its requests, and that the University had consequently failed to respond to the requests within the time limit of up to twenty working days provided by section 10(1) of the FOISA.103 The SIC also found that the University had failed to fulfil its obligation under section 15 of the FOISA in relation to providing advice and assistance to PMI to reformulate its request so that it would minimise the burden likely to be imposed on the University.104 The SIC was satisfied on the evidence that ‘the only intention behind PMI’s request to the University was to gain access to the requested information’.105 The Commissioner accepted PMI’s submission that its intention behind the requests to the University was ‘to fulfil an understandable interest it has in seeing the requested information’.106 Although the SIC accepted that PMI’s request would impose a significant burden on the University, in each case, the Commissioner found that PMI’s information request was not vexatious.107 He also rejected the University’s argument that PMI’s requests were manifestly unreasonable or disproportionate.108
More recently, research by University of Bath academics Silvy Peeters and Anna Gilmore, published in the journal Tobacco Control, generated a ‘heated reaction’ from users of the tobacco product snus.109 Peeters and Gilmore’s research found that snus could still be purchased online in the European Union, despite sales being illegal.110 Three FOI requests were submitted to the University of Bath in relation to the Tobacco Control article, and another three requests were made regarding a different project managed by the University of Bath’s Tobacco Control Research Group, being a Facebook page to monitor tobacco marketing tactics in the UK. Part of the University of Bath’s response to the first FOI request was posted to an online forum for snus users, along with contact details of the academics, who subsequently received threatening phone calls and abusive emails. According to Tobacco Tactics, the academics at the University of Bath were the targets of a ‘coordinated effort to intimidate’, through FOI requests, as well as abusive online behaviour by bloggers.111
During the 1990s, the tobacco industry used legal challenges to counter New Zealand Ministry of Health efforts to increase health warnings and consumer information on tobacco packaging in New Zealand. Internal tobacco industry documents obtained by Thomson and Wilson suggested that the industry believed that the pressure from its lawyers had impeded progress towards the new warnings.112 More recently, an analysis by Wong, Youdan and Wong of all requests made under the OIA to the New Zealand Ministry of Health about tobacco control between 2005 and August 2009 found that 84% of the 129 requests made during that period were from tobacco industry related sources, including lawyers (60%), public relations firms (16%), and tobacco companies (8%).113 The authors argue that these FOI requests imposed a significant burden on Health Department officials:
The work of public health officials was disrupted at a critical juncture in tobacco control action by an influx of repetitive and time consuming OIA requests from the tobacco industry. Each required assessment to determine if the request was frivolous or vexatious, if the information could be released, and to provide quotes for services.114
Grace Wong, Ben Youdan and Ron Wong concluded that ‘[t]obacco companies … abuse legal avenues designed to protect the public’s right to access to official information’.115
In April 2012, the New Zealand government gave ‘in principle’ agreement to the introduction of a tobacco plain packaging regime similar to that of Australia.116 On 19 February 2013, former Associate Health Minister Tariana Turia announced that the New Zealand government would introduce legislation mandating the plain packaging of tobacco products, although Cabinet would ‘wait and see what happens with Australia’s legal cases’.117 The plain packaging legislation has been making its way through the relevant parliamentary processes.118
In January 2013, New Zealand media reported that legal representatives for tobacco companies had made at least nine requests under the OIA over the past two years for documents relating to the New Zealand government’s plans to introduce plain packaging laws.119 Six of these requests were filed by BAT, with two by Philip Morris and one by Imperial Tobacco. The FOI requests were extremely broad and covered a wide array of information, including: all communication about plain packaging between the Ministry of Health and its Australian, Canadian and British equivalents; how plain packaging would affect youth and adult smoking rates in New Zealand and how it would impact on the intellectual property rights of tobacco manufacturers; and whether plain packaging would violate any of New Zealand’s international trade or investment treaty obligations. Access to documents was largely denied by the New Zealand Associate Minister of Health on the grounds that gathering the information would require ‘substantial collation or research’.120 Anti-tobacco activist Ben Youdan was quoted as saying that the requests were ‘about wasting time, and holding up the political process by tying up the time of civil servants who should be informing public policy’.121 The tobacco industry was quoted as saying that the requests were motivated by ‘concerns about government policy affecting their business’.122
Research by Stanton Glantz and Stella Aguinaga published in 1995 found that agencies handling tobacco control received a higher than average volume of FOI requests, as part of an attempt by the tobacco industry to discredit and disrupt the agencies’ activities.123 The FOI requests were a significant drain on agency resources, as tobacco control staff at both state and federal levels were forced to divert time away from their anti-tobacco activities to meet demands for records.124 In 1996, Myron Levin reported in the Los Angeles Times that tobacco companies had ‘turned to open records laws’ to undermine the growing anti-tobacco movement, ‘inundating state offices with requests for documents and, in some cases, using information from them to charge anti-smoking groups with improper use of public funds’.125 In 2000, Anne Landman reported that the tobacco industry had used state FOI legislation in Massachusetts to obtain records relating to the contract award system used by the Massachusetts Bay Transportation Authority (‘MBTA’), after the Board of the MBTA voted to stop accepting tobacco advertisements for its vehicles and in its facilities in 1986.126 The Tobacco Institute’s internal documents revealed that its ultimate plan was to influence the legislature to amend the state budget to eliminate MBTA’s authority to choose advertisers.127
Two significant tobacco control projects in the US were the target of aggressive and well-coordinated attacks by the tobacco industry, including prolific FOI requests. The Community Intervention Trial for Smoking Cessation (‘COMMIT’) was a community-based tobacco intervention project funded by the National Cancer Institute from 1988 to 1992: the second-largest tobacco trial ever conducted in the US. COMMIT was designed to reach and influence tobacco smokers ‘through community mobilisation and change in social norms’.128 The National Cancer Institute’s American Stop Smoking Intervention Study for Cancer Prevention (‘ASSIST’) project is the largest and most comprehensive tobacco control intervention trial conducted in the US to date.129 It began in 1991 and was a seven-year, seventeen-state, federally funded policy-based public health project, which was run in collaboration with the American Cancer Society, state health departments, and public and private organisations.130
The tobacco industry employed ‘aggressive open records efforts’131 using the US FOIA and similar state legislation in relation to COMMIT and ASSIST. The industry’s ultimate aim was to disrupt the progress of governments and organisations that were becoming increasingly effective in implementing tobacco regulation. Many of the FOI requests were formulated in broad terms, requiring vast amounts of staff time to meet, and disrupting the government agencies’ primary functions.132 A 1991 Tobacco Institute memorandum indicated that documents obtained through FOI requests would be reviewed ‘for “public policy” activities which could spark state or local legislation on tobacco issues’.133 The memorandum stated that the Institute was ‘reviewing activities under [COMMIT] in an attempt to document possible abuses within that federally-funded program’.134
Another example of the industry’s strategy is provided by a 1995 memorandum by Bob McAdam of the Tobacco Institute. The memorandum asserted that more funding was required in order to ‘pursue an aggressive open records effort that will allow us to look at copies of state documents outlining the ASSIST coalition activities’, with the aim of identifying ‘misuse of the funds’:135
I am more concerned about Washington than almost any other state in that we have clear indications that they plan to launch a tax initiative against the industry. If we are able to identify the use of ASSIST funds for this purpose early on, we could both derail the initiative and limit the abuse of ASSIST.136
The language used by McAdam betrays the adversarial attitude taken by the Tobacco Institute towards the government: ‘I have identified a law firm that can handle the pursuit. … They appear to have an aggressive attitude and have extensive experience in going up against government entities’.137
A 2001 analysis by Stella Aguinaga Bialous, Brion Fox, and Stanton Glantz of tobacco industry FOI requests in four states that participated in the ASSIST project — Colorado, Minnesota, Washington and Maine — found that the tobacco industry, through various representatives (including lawyers, front groups and local businesses), requested many documents from state and local health departments. PMI’s ‘Counter Assist Plan’ included launching a Congressional investigation into the use of federal funds for lobbying purposes, and launching legal challenges in ASSIST states to stop the distribution of funds.138 From September 1993, a series of requests for documents was filed with the ASSIST project in Minnesota by tobacco industry allies, such as the Minnesota Grocers Association.139 In March 1994, the Colorado Department of Health began receiving requests from law firms, on behalf of the Tobacco Institute, for public records based on the US FOIA and Colorado’s Open Records Law.140 The Washington State Health Department received 49 requests between March and October 1995 for ASSIST-related documents under the state FOI Act.141 Stuart Cloud, a tobacconist who was ‘well known in the state [of Washington] for his vocal advocacy of smokers’ rights and his regular appeals for the fair treatment of tobacco’,143 made various FOI requests on behalf of the Tobacco Institute of Washington, DC in 1995.140 Also in 1995, the American Smokers Alliance urged readers of its newsletter to use the FOIA to gather information, as ‘concerned citizens’, to allege misuse of taxpayers’ funds.144 These FOI requests to the Health Department of each state led to the lodging of formal complaints about alleged ‘illegal lobbying’ by tobacco advocates.145
Similarly, a 2004 analysis by Jenny White and Lisa Bero of internal tobacco industry documents found that the industry considered ASSIST a ‘major threat’ and mobilised resources for a ‘well-coordinated’ attack on the project.146 The Tobacco Institute filed a comprehensive request in 1991 for contracting documents for the national and state ASSIST programs, while lawyers, front groups, lobbyists and consultants also filed FOI requests, some of which were ‘extraordinarily detailed and demanding’.147 The Tobacco Institute had created comprehensive analyses of ASSIST programs in most ASSIST states by 1996, including detailed reports on ‘illegal lobbying’ activities.148
The ‘1996 ASSIST Research Plan’ reveals that the Tobacco Institute continued to make requests for documents because it was satisfied with the gains that the industry was making through the use of the US FOIA.149 The Institute lauded among its achievements: the ability to anticipate legislative activity at the state and local level; a re-evaluation by the government of its use of public funds for lobbying; and the gathering of information that would be useful in restricting future funding of ASSIST and similar tobacco control programs.150 The (unknown) author of the Research Plan stated that the ‘FOIA style requests at state level have proven to be our most useful means of gathering information about the opposition’ and that, while the bulk of the information had already been obtained in relation to some states, the plan was to continue seeking such information in other states.151 The extensive and persistent FOI requests by the tobacco industry ultimately had a dampening effect on ASSIST and related activities.152
In order to put the tobacco industry’s use of FOI into context, this section discusses the administrative and resource burdens involved in the administration of FOI requests: in particular, the costs for government agencies of complying with requests within legislatively imposed time limits. Understanding the administrative burden experienced by governments in administering their FOI systems as a whole offers a contextual setting for Part V of this article, which examines options for dealing with burdensome FOI requests, and particularly those that are made by the tobacco industry.
The UK Ministry of Justice publishes national statistics on the handling of requests for information under the UK FOIA.153 The number of FOI requests increased by 63% between the third quarter of 2006 and the third quarter of 2014.154 In 2012, monitored central government bodies received 49,464 ‘non-routine’ FOI requests, a 5% increase on the number received in 2011.155 This increase was generated almost entirely by a surge in the volume of requests to government departments, particularly to the Department of Health and the Department of Work and Pensions regarding their introduction of ‘controversial policies’.156 In the case of the Department of Health, this ‘controversial’ policy was the proposed plain packaging of tobacco products, confirming the significance of FOI for tobacco control.
In its 2006 review of the operation of the UK FOIA, Frontier Economics identified ‘five key categories’ of FOI requester: journalists, members of Parliament, campaign groups, researchers, and private individuals.157 In 2013, the Scottish government received 1,597 FOI requests under the FOISA — the highest on record since the Act came into force.158 The majority of requests were made by individual members of the public (48%), followed by the media (19%), organisations including companies and interest groups (15%), researchers (8%), elected representatives (5%) and solicitors (3%).159 The alliances of any of these requesters to particular industries or companies is unknown.
Little information exists on the number of requests and the profile of requesters under the OIA in New Zealand. A 2001 study by Dave Clemens found that ‘the evidence remains effectively hidden’.160 Government agencies surveyed for Clemens’ study were generally unable to confirm trends in the literature that estimated high use of the OIA by certain groups or categories of requesters (such as news media and political parties), because such information was not held by most agencies or was not readily accessible.161 This absence of data precludes a cogent analysis of the detailed statistics compiled by the New Zealand Office of the Ombudsman regarding the proportion of requesters, or groups of requesters, seeking review of decisions made under the OIA.162 These deficiencies impair the ability of researchers to assess the effectiveness of the New Zealand FOI system in addressing tobacco industry requests, as such requests cannot be situated in the context of the overall volume of FOI requests made.163 A similar dearth of data also prevents a precise analysis of the proportion of FOI requests and costs attributable to the tobacco industry in the UK and the US.
In 2013, the US federal government received the highest volume of FOI requests in the US FOIA’s history: 704,394 requests.164 This represented an increase of 7.5% or 53,140 requests from 2012.165 The Department of Homeland Security (‘DHS’) continued to receive the most FOI requests, followed by the Department of Justice and the Department of Defence. According to Birkinshaw, the Coalition of Journalists reported in 2006 that more than 60% of US FOIA requesters are from commercial bodies, with many seeking information on business competitors, such that ‘[t]he FOIA has generated a vast industry in the USA among the business community’.166 While the US FOIA aims to facilitate open government, many professional organisations, known as ‘data brokers’ or ‘surrogate requesters’, have used the Act to obtain information that they subsequently market and sell.167 The media account for approximately 6% of FOIA requests, while requests from private citizens comprise about a third of the total number of requests.168
The annual statistics published by the UK Ministry of Justice in relation to FOI requests processed by government agencies provide no information about FOI expenditure or costs incurred by those agencies.169 However, a report prepared by Frontier Economics in 2006 for the Department of Constitutional Affairs170 estimated the total cost across central government of dealing with FOI requests at £24.4 million per year. In the wider public sector, the total cost of handling FOI requests was estimated at approximately £11.1 million per year.172 A 2012 costing exercise undertaken by the Corporate Analysis team (Office of the Chief Statistician) on behalf of the Scottish FOI Unit173 estimated the cost of responding to FOI requests, reviews and appeals in that year at £573,762.174
Little data exists on the overall cost of the FOI system in New Zealand.175 However, the Law Commission has referred to ‘substantial anecdotal evidence’ that government agencies devote significant resources to administering and complying with the OIA.176 Government departments do not record the cost of processing and responding to requests under the OIA. The Office of the Ombudsman similarly does not record the cost of resolving each complaint referred for review; however, generalised costings have been devised from information on the Ombudsmen’s case management system. In the Office of the Ombudsman’s 2005 Annual Report, the estimated cost of all investigations under the OIA (both complete and incomplete) was $1.645 million, with an estimated average cost per complaint of $1,225 for completed work and $2,039 for investigations in progress.177
In 2013, the total cost of all US FOIA-related activities for all US federal departments and agencies was estimated at $446.8 million, representing a 4% (or approximately $17 million) increase from 2012.178 For the third consecutive year, over 93% of this total cost was spent on processing FOIA requests and appeals, and just over 6% was attributed to litigation-related activities.179
The UK FOIA requires government departments to respond to written requests for information ‘promptly’, and in any event no later than twenty working days.180 Some limited exceptions apply, including where requests are subject to the consideration of public interest. A thirty-day working deadline applies where requests relate wholly or partly to information transferred to the National Archives. The time limits under the FOISA are largely identical to those under the UK FOIA.181
Under the New Zealand OIA, agencies must respond to requests for official information ‘as soon as reasonably practicable’, and in any case no later than twenty working days after receipt of the request.182 Where the information is not held by the agency to which the request is made, or the agency believes that the request is ‘more closely connected with the functions’ of another agency, the agency can transfer the request.183 Transfers of requests for official information between departments must occur within ten working days of receipt.184 Government agencies may also grant themselves a time extension for responding to FOI requests if the request is for, or requires a search through, ‘a large quantity’ of official information and meeting the original time limit would ‘unreasonably interfere with the operations’ of the government department, or where consultations are necessary to make a decision on the request.185 Such an extension can be for a ‘reasonable period of time’ having regard to the circumstances.186
The US FOIA requires agencies to respond to FOI requests within twenty business days.187 A twenty business day time limit also applies to the determination of FOIA appeals.188 However, the Federal FOIA Ombudsman has conceded that ‘the 20-day limit is difficult, if not impossible, for many departments and agencies to meet because of a high volume of requests and/or inadequate resources’.189 The US FOIA enables agencies, in ‘unusual circumstances’, to extend the prescribed time limits by written notice to the requester.190 ‘Unusual circumstances’ include the need to collect and examine a ‘voluminous amount of separate and distinct records’ and the need for consultation with another agency.191 A person making a request to an agency for records is taken to have exhausted his or her administrative remedies with respect to that request if the agency fails to comply with the applicable time limit provisions.192 If the government is able to demonstrate that ‘exceptional circumstances’ exist and the agency is exercising due diligence in responding to an FOI request, the court may allow the agency additional time.193
According to the UK Ministry of Justice FOI statistics for 2013, 91% of FOI requests were responded to ‘in time’, meaning that they received a response within the twenty-day deadline or were subject to a permitted deadline extension. Departments of State responded to 85% of requests within the twenty-day time limit in 2013.194 In Scotland, 24% of appeals made to the SIC in 2013 were due to dissatisfaction with the timeliness of responses to FOI requests.195 Delay in responding to FOI requests is a problem in a ‘significant number’ of cases in the UK, even where complaints are made to the Information Commissioner.196 Birkinshaw has noted that ‘outright defiance’ is not common, owing to the severity of the penalties involved; however, limited funding and resources for FOI are a challenge for government departments and agencies in complying with the statutory time limits.197 As in New Zealand and the US, public data are not available on the extent to which tobacco industry FOI requests are subject to delayed responses, or the relationship between delays and the scope of requests. Nevertheless, it may be expected that larger requests (and especially overly broad requests, as discussed below) will hamper administrative attempts at meeting time limits.
Delays in responding to requests under the New Zealand OIA represent a continuing problem.198 In 2013-14, 31% of OIA complaints to the New Zealand Ombudsman concerned delays by agencies.199 Complaints to the Ombudsman may themselves take considerable time to process.200 Responders to FOI requests have suggested that meeting the statutory time frame for responding to FOI requests is particularly challenging and even unrealistic where the request is large or complex, possibly requiring consultation amongst several government departments, or where decisions involve careful judgment.201 In its 2012 review of the OIA, the New Zealand Law Commission received submissions that the time limit for responding to requests should be reduced from twenty working days to five or ten working days.202 The Law Commission concluded that it would be ‘problematic’ to reduce the twenty-working day time limit, as this would impose additional pressure on government agencies, and that it would be ‘unrealistic’ to reduce the maximum timeframe when government resources for FOI were being reduced or not increased.203 The Law Commission therefore recommended retaining the twenty-working day limit.
US government agencies’ failure to respond to FOIA requests within the statutory time limit has been described as a ‘well-known occurrence’.204 Government agencies continue to experience significant backlogs205 in responding to requests. The Obama Administration’s Open Government Directive requires agencies with a backlog of FOIA requests to reduce the number of outstanding requests by 10% each year, but it does not stipulate consequences for agencies that do not meet this target.207 This requirement was not met between 2008 and 2011. In 2012, the federal government reduced its backlog of pending FOI requests by 14%.208 However, the total number of backlogged requests increased by 33% from 2012 to 2013.209 In any case, Wendy Ginsberg observes that a decrease in the number of backlogged requests does not necessarily equate to greater agency efficiency in administering the FOIA, for example because an agency may be able to eliminate a backlog by denying complex requests rather than negotiating a partial release of information, or because of a reduction in the number of FOI requests.210
Review procedures and enforcement mechanisms are necessary to ensure the proper functioning of the FOI system and to provide recourse for dissatisfied requesters. Nevertheless, these various procedures and mechanisms also add to the administrative burden of compliance with FOI regulations.
Where a public authority refuses to disclose information requested, the UK FOIA contains a two-stage appeal process: first to the ICO and then to the Information Tribunal.211 The UK FOIA provides that an ‘accountable person’ (usually a Minister) may issue a certificate concluding that it is not in the public interest to disclose the requested information.212 The veto power has been invoked three times since the UK FOIA came into operation to prevent the disclosure of information in relation to: the Department of Health’s Transition Risk Register, Cabinet minutes concerning military action against Iraq, and minutes of the Cabinet Sub-Committee on Devolution for Scotland, Wales and the Regions. The ICO has critiqued Ministers’ ‘routine’ exercise of the veto power, warning that it threatens to undermine FOI.213 In its 2012 report to Parliament, the ICO emphasised that ‘the exercise of the ministerial veto … should be genuinely exceptional’.214
The original New Zealand OIA established an Information Authority, which was tasked with promoting and overseeing the operation and implementation of the legislation until 1988.215 From that time, the Office of the Ombudsman has borne responsibility for receiving and investigating complaints under the OIA.216 Where a complaint is made in writing,217 an Ombudsman may investigate and review decisions of a department or Minister that, for example, refuse to make official information available in response to a valid request;218 impose conditions on the use of information made available in response to a valid request;219 or extend the time limit for responding to a valid request.220 Upon completion of the investigation, an Ombudsman may recommend the release of part or all of the official information.221 The Ombudsman’s recommendation is binding on the agency or Minister.222 The Ombudsman’s review operates on a case-by-case basis and does not produce rules of general application.223 Judicial review of a decision cannot be sought until the Ombudsman has investigated the decision and made a recommendation.224
In the US, a person who is denied access to requested records may make an administrative appeal to the agency head for the decision to be reconsidered.225 If this agency appeal is denied, the person can make an appeal for further consideration in the federal District Court.226 The District Courts are vested with exclusive jurisdiction over US FOIA cases, but relief upon judicial review of an agency’s decision to refuse access to requested records is limited to ordering the disclosure of records to the requester.227 The US Supreme Court has held that the requester must demonstrate that the agency has (i) ‘improperly’ (ii) ‘withheld’ (iii) ‘agency records’.228 The burden is on the agency to sustain its action.229 The OGIS also offers non-binding mediation services, ‘as a non-exclusive alternative to litigation’.230
Part IV of this article highlights the significant resource constraints experienced by government departments and agencies in administering their FOI systems. The challenge, then, is for FOI legislation to address the burdens imposed by the tobacco industry’s use of FOI requests without deterring legitimate requests by that industry or any other. In the following sections of the article, we consider the effectiveness of the FOI systems in the UK, New Zealand, and the US in resisting illegitimate requests, by refusing overly broad or improper requests, imposing charges for requests, or dealing with vexatious applications or applicants.
Sub-section 12(2) of the New Zealand OIA requires the official information requested to be ‘specified with due particularity’.231 This requirement corresponds to the Danks Committee statement at the inception of the legislation:
It is not envisaged that individuals should have a right to conduct ‘fishing expeditions’ in the hope or expectation that material of interest or use will turn up or make vague or sweeping requests for a class of information.232
The New Zealand Ombudsman has held that the purpose of sub-section 12(2) is to ensure that the agency receiving the request is reasonably able to identify the information requested.233 Overly broad or improper FOI requests impose considerable time and resource constraints upon government agencies. In its 1997 review of the OIA, the New Zealand Law Commission identified ‘the burden caused by large and broadly defined requests’ as a significant problem.234 As explained by the New Zealand Law Commission in its 2012 review, these pressures arise from locating the material requested, assessing which parts are relevant, reviewing the documents to determine whether they should be withheld from disclosure, consulting with other agencies and third parties, and preparing the material for provision to the requester.235
A request for official information made under the OIA may be refused under section 18(f) if the information requested ‘cannot be made available without substantial collation or research’.236 However, since October 2003, FOI requests have not been subject to refusal on this ground unless government agencies first consider whether extending the time limit for responding to the request or fixing a charge would enable the granting of the request.237 Furthermore, if a request is likely to be refused on this ground, the government agency must first consider consulting with the requester about the form of the request.238 These provisions reinforce the Ombudsman’s statement that section 18(f) should be used as a ‘last resort’.239 Whether New Zealand agencies actually turn to this provision only as a last resort remains the subject of debate.240
The New Zealand Law Commission has identified various motives for making large FOI requests,241 for example where: researchers need a large amount of information; requesters do not know exactly what they are seeking or in which categories of document the information is located; lawyers conduct ‘pre-proceeding discovery’ to assess whether they may have an actionable claim; lobbyists and researchers for political interests hope to unearth negative information about the government or an opponent; or — as is arguably often the case with tobacco companies — requesters desire ‘to harass or make life difficult for an agency’.242
The New Zealand experience emphasises the difficulty in labelling a request illegitimate simply on the basis of its size. Providing a discretion for refusal in relevant circumstances may allow the relevant decision-makers to use their expertise and experience in distinguishing illegitimate from legitimate requests. However, the disruptive and time-consuming requests made by the tobacco industry to the New Zealand Ministry of Health suggest that New Zealand’s broad discretion to refuse requests on this basis does not prevent the time-wasting effects of information requests.243 Although the inclusion of such a discretion may be important in preventing deliberately large requests, unless the discretion is exercised in practice, it may have little impact.
Unlike the New Zealand OIA, the FOI laws in the US and the UK lack express provisions enabling government agencies to refuse large FOI requests. Instead, such requests are addressed through FOI charges, as discussed in the following section.
In all three jurisdictions examined in this article, charging fees is designed to discourage abuse of FOI systems, but none appears to have a charging regime that achieves this aim: ‘fees recovered generally represent a fraction of … the cost’.244 Agencies are often unclear about when it is appropriate to impose a charge, what charge should be imposed, and how much time and effort should be invested in responding to an FOI request before it can be refused. Many of these issues require the consideration of a range of factors in all the circumstances and subjective decision-making by government officials.
In the UK, the amount that a public authority may charge a requester depends on whether the cost of complying with the request has exceeded the ‘appropriate limit’. Costs and fees are set out in the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004 (UK) (for the UK) (‘UK Fees Regulations’) and in the Freedom of Information (Fees for Required Disclosure) (Scotland) Regulations 2004 (for Scotland) (‘Scotland Fees Regulations’). The UK Fees Regulations set the ‘appropriate limit’ and explain how this should be calculated, and also outline the maximum fee that a public authority may charge a requester when the cost of responding to a request exceeds the appropriate limit. This appropriate limit is £600 for requests to central government and £450 for requests to any other public authority.
Where the estimated cost of compliance would not exceed the limit, the public authority must comply with the request unless an exemption applies, but it may impose a charge.245 The public authority may charge only for costs that it reasonably expects to incur in informing the requester whether or not it holds the information requested, and communicating the information to the requester.246 It may charge for costs incurred in searching, locating, retrieving and extracting information but not for time taken in redacting any exempt information.247 According to the ICO, it is ‘good practice’ for public authorities to waive the charge if the administration costs of collecting a fee would be more than the charge itself.248 If the estimated cost to respond to a request for information exceeds the appropriate limit, an agency need not process the request249 and may charge for processing the request should it do so.250 In such circumstances, the authority may charge for the total sum of the costs that can be taken into account in calculating whether the appropriate limit is exceeded, communication costs, and staff time spent on communicating the information.251
An agency’s decision to refuse an application on cost grounds is a reviewable decision by the agency and by the ICO. In January 2012, the ICO issued a decision notice pertaining to a complainant’s request for information from the Department of Health (‘DOH’) on the plain packaging of tobacco products.252 The complainant wrote to the DOH on 17 December 2010, requesting information regarding comments and statements made by the Secretary of State for Health about the plain packaging of cigarettes. In its response of 11 January 2011, the Department refused the request on the ground that the information related to the formulation of government policy and was thus exempt.253 The complainant then sought an internal review of the Department’s decision. At this stage, the DOH invoked section 12 of the UK FOIA, explaining that, having reviewed the request, it considered that to comply with it would exceed the appropriate cost limit. The complainant lodged a complaint with the ICO, contending that the DOH should not have been able to rely on the section 12 exemption at such a late stage in the investigation.254 The ICO held that the DOH could legitimately rely on section 12 of the UK FOIA to withhold the information sought, despite the late invocation of this exemption. It accepted the Department’s cost estimates, which ‘clearly demonstrated’ that to provide the information would exceed the appropriate limit.255 However, the ICO found that the DOH had breached section 16 of the UK FOIA in its handling of the request256 and required the Department to provide advice and assistance to enable the complainant to refine its request to bring it within the cost limit.257
In New Zealand, the OIA permits government agencies to impose a ‘reasonable’ charge for the supply of official information.258 In determining the charge, the agency may have regard to the cost of the labour and materials involved in making the information available, and to any costs incurred where the request for information is urgent.259 Under the Ministry of Justice Charging Guidelines for OIA Requests,260 an agency may charge for staff time of more than one hour for searching, abstracting, collating, copying, transcribing and supervising access for official information,261 as well as for the cost of off-site retrieval and media reproduction.262 The agency has discretion to reduce or waive charges, for example because payment might cause the applicant financial hardship, or reduction of the charge would be in the public interest because it is likely to contribute significantly to public understanding of government activities and the disclosure of the information is not primarily in the requester’s commercial interest.263 An agency’s decision to impose a charge is reviewable by the New Zealand Ombudsman.264
The 2012 review of the OIA by the New Zealand Law Commission identified charging policy and practice as an area requiring a ‘fresh rethink of policy settings’.265 The Commission observed that charging could be an ‘effective deterrent’ to requesters that made unreasonably large or overly broad requests. However, it described existing charging practices as ‘very erratic’ and ‘highly variable’, with many departments and agencies reluctant to impose any charges for fear that they may be viewed as acting contrary to the spirit of the OIA.266
The US FOIA provides for the charging of certain fees ‘applicable to the processing of requests’ in some instances.267 Fees are regulated by the Uniform Freedom of Information Act Fee Schedule and Guidelines 1987. The scale of charges is prescribed by each agency and the level of charges that may be imposed varies depending upon the category of requester.268 For instance, commercial use requesters may be charged fees for the actual cost of searching, processing and duplication.269 Educational institutions, non-commercial scientific institutions, and representatives of the news media are charged only for duplication fees (the first 100 requested pages are provided free of charge).270 All other users are charged for searching and duplication.271 An agency’s decision to impose fees is reviewable by administrative appeal to the agency and may be mediated by the OGIS.272 Disputes over records can also be resolved in the Federal Court, where the burden is on the agency to justify its action.273
The US FOIA imposes restrictions on the assessment of certain fees.274 Agencies cannot impose a fee if the government’s cost of collecting and processing the fee is expected to equal or exceed the amount of the fee itself.275 Furthermore, agencies must provide the first 100 pages of duplication and the first two hours of search time free to the requester.276 The purpose of these fee restrictions provisions is to ensure that requesters are not discouraged from pursuing FOI requests and exercising their rights to access government information.277 The US FOIA provides for the waiver or reduction of fees upon satisfaction of the statutory fee waiver standard,278 namely that disclosure of the information: (i) is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government; and (ii) is not primarily in the commercial interest of the requester.279 In 2007, US Congress enacted the OPEN Government Act, which makes more FOI requesters eligible for the lower fees charged to researchers and news media, and restricts agencies’ ability to collect fees if they do not meet the statutory time limit for responding to FOI requests.280
The US government collected $4.34 million in FOIA fees in 2013, which comprised just under 1% of the total cost to the government of administering the FOIA.281 The OGIS identified FOIA fees as an area for examination in one of its four recommendations made in 2013 for improving the FOIA. It noted that, since the FOIA fee guidance was issued in 1987, many government agencies had digitised records or established online FOIA libraries, and some had begun to provide records through the FOIA online portal.282 The OGIS observed that fees and fee waivers were a ‘persistent point of contention administratively and in litigation’, and recommended that it work with stakeholders from within and outside government to review ‘the myriad issues’ concerning FOIA fees.283
In New Zealand, the United States and the UK, the costs to government of implementing and complying with the FOI regime are extensive. These costs must be borne in part by the government in view of the public interest in transparency and accountability. However, if the costs begin to outweigh the benefits and are subject to abuse by particular industries, changes may be required. The United States’ imposition of some fees that vary according to the nature of the requester (commercial, educational or other) provides one example of a mechanism that could be used to reform charging practices in order to reduce commercial incentives to make requests for improper reasons. The UK’s allowance of refusals on the basis of excessive costs may also provide an appropriate basis for limiting the financial burden of requests. The precise nature of optimal charging reforms may differ in these three jurisdictions, but the experience of each may be relevant in assessing the options available.
Frequent and repeated FOI requests and requesters present significant challenges for the effective operation of FOI systems. Pursuant to section 14 of the UK FOIA, a public authority may refuse an FOI request if it is vexatious or ‘subsequent identical or substantially similar’ to a previous request, ‘unless a reasonable interval has elapsed between compliance with the previous request and the making of the current request’.284 The UK FOIA and the FOISA enable FOI requests to be treated as vexatious, but not requesters. Sub-section 14(1) is intended to protect public authorities by enabling them to refuse FOI requests that ‘have the potential to cause a disproportionate or unjustified level of disruption, irritation or distress’.285 Sub-sections 49(1) and 50(2)(c) of the UK FOIA also enable the ICO to refuse to deal with a complaint that appears to be vexatious or ‘frivolous’. According to the UK Information Commissioner, although public authorities ‘should think carefully’ before refusing a request as vexatious under sub-section 14(1), this provision should not be viewed as applying only as a ‘last resort’.286 The Upper Tribunal has defined ‘vexatious’ in sub-section 14(1) of the UK FOIA as ‘manifestly unjustified, inappropriate or improper use of a formal procedure’;287 notions of ‘proportionality’ and ‘justification’ are key in considering whether a request is vexatious.288
The Frontier Economics review of the UK FOIA noted that the provision for handling vexatious requests but not vexatious requesters causes problems for some government departments that receive requests from individuals who have been declared vexatious litigants by the court, but who are not considered so for the purposes of the UK FOIA. The review identified vexatious requesters — being a subset of serial requesters who made repeated requests for information ‘with the aim of disrupting the work of an organisation or harassing the individuals within it — as particularly problematic for certain government agencies, including the Legal Secretariat to the Law Officers and the Treasury Solicitor’s Department.289 It recommended that the government consider changing the wording of section 14 of the FOIA to focus on vexatious ‘requesters’ rather than vexatious ‘requests’.290 However, this recommendation was not implemented.
In New Zealand, a request for access to official information may be refused on the ground that ‘the request is frivolous or vexatious or … the information requested is trivial’.291 According to the New Zealand Ombudsman, this provision enables an agency to refuse a request where the request itself is frivolous or vexatious, or where the information requested is trivial.292 The Ombudsman has adopted the courts’ interpretation of ‘frivolous or vexatious’.293 In the context of the OIA, for a request to be refused on this ground, it must be considered by the agency to be a clear abuse of the rights granted by the OIA for access to information, rather than an exercise of those rights in good faith.294 Significantly, the ‘nature of the request made in light of the surrounding circumstances’, rather than the identity of the requester, is relevant to the determination of whether a request is ‘frivolous or vexatious’.295 The OIA does not allow government agencies to refuse a request simply because a requester has previously made ‘numerous, possibly time consuming requests which, in the eyes of the organisation dealing with the requester, appear to serve no practical purpose’.296 However, the requester’s conduct, the agency’s previous dealings with the requester, and the purpose of the request may be relevant considerations.297
An Ombudsman may also refuse to investigate a complaint made under the OIA if he or she believes that the subject matter of the complaint is trivial, or if the complaint is frivolous or vexatious or is not made in good faith.298 The New Zealand Ombudsman exercised this power on six occasions in 2013–14, where no investigation was undertaken because the complaint made under the OIA was considered frivolous, vexatious or not in good faith.299
In 2012, the New Zealand Law Commission recommended that the term ‘vexatious’ be defined in the OIA or in a practice guidance, as submissions revealed that many agencies found it unclear and were reluctant to apply this seemingly ‘unattainably high’ threshold.30 The Law Commission supported the definition of ‘vexatious’ provided by the SIC.301 It recommended an amendment to clarify that, in determining whether a request is frivolous or vexatious, the past conduct of a requester may be taken into account.302 The Commission also considered the Australian approach, which enables the Information Commissioner to make ‘vexatious applicant’ declarations.303 However, the Commission recommended against this approach,304 noting that it would allow an agency to ‘shut out’ a particular requester, effectively preventing him or her from exercising the right to access government information.305
The US FOIA contains no express provisions for handling repeated requests for information or vexatious applicants. Only upon appeal to the federal District Court regarding a declined request can a requester be declared ‘vexatious’ by the court, and then only in relation to the filing of FOIA complaints with the court, rather than in relation to the lodging of FOIA requests with government agencies. The ‘mere litigiousness alone’ of FOIA plaintiffs does not support the granting of an injunction against filing further complaints with the court.306 However, where plaintiffs have a demonstrated history of initiating frivolous or vexatious FOIA claims, they must seek leave of the court before filing further FOIA actions.307 In Robert v Department of Justice,308 the Second Circuit Court of Appeals affirmed the District Court’s grant of summary judgment to the Department of Justice regarding multiple FOIA cases brought by the plaintiff. The US District Court for the Eastern District of New York had issued an injunction preventing the plaintiff from filing future actions without leave of court.309 The Second Circuit clarified that the injunction imposed by the District Court upon the plaintiff applied only to future complaints that raised FOIA claims, and not to FOIA requests. The Second Circuit held that in view of the plaintiff’s ‘history of filing vexatious, burdensome, and meritless FOIA complaints, the District Court did not err or abuse its discretion in enjoining [him] from filing further complaints raising FOIA claims without leave of the court’.310
The apparent reluctance to identify particular requesters or even particular requests as vexatious, including the creation of barriers such as the need for a court order in order to do so, may reflect an understanding in these three jurisdictions that such a power can be easily abused, undermining the purpose of the FOI regime. Nevertheless, a greater focus on the purpose, identity and history of the requester could provide a legitimate means of managing inappropriate requests and thereby reducing the financial and human resource burdens they create. While more prescriptive criteria for identifying vexatious requests or requesters may not be available, easing the ability of decision-makers to exercise their discretion in particular kinds of circumstances may make this a more viable means of handling such requests. At the same time, given the ability of corporate requesters such as tobacco companies to use alternative identities such as subsidiaries or allied organisations, a focus on the identity of the requester alone will not eliminate vexatious requests.
The extensive use of FOI laws in the US, the UK and New Zealand, combined with the history of FOI use by the tobacco industry in general, suggests that the burden imposed on the UK government by tobacco industry-sponsored FOI requests is likely to be significant in the coming years, particularly in view of the introduction of standardised tobacco packaging. FOI requests by the tobacco industry may be further generated by domestic, regional or international litigation commenced by the industry in response to standardised packaging or other tobacco control measures. While FOI requests to support valid litigation may be appropriate, at least some of the industry’s legal actions are ill-founded, commenced purely as part of a global strategy of hindering tobacco control through whatever means possible,311 and thus casting a shadow on associated FOI requests. The burden of these requests will be felt in both financial terms and human capacity terms, at both the request and review stages, especially given the twenty working day limit on responding to requests. That twenty day time limit represents a commonality between the FOI systems in the UK, New Zealand, and the US, with each jurisdiction facing challenges in meeting the limit while various stakeholders call for even faster resolution of requests, including through complaints to the relevant overseeing bodies.
The theoretical (if rarely used) ability of a New Zealand authority to refuse a request for official information under section 18(f) of the OIA on the ground that the request is overly broad (that is, the information ‘cannot be made available without substantial collation or research’)312 represents an important tool for New Zealand agencies to deal with improper requests, whether from the tobacco industry or otherwise. The absence of such a provision in UK and US law places a greater emphasis on FOI charges to act as a deterrent to overly broad requests. Yet in all three jurisdictions the government’s costs of administering the FOI system far outweigh the charges imposed on FOI requesters, and changes to the charging approach are likely to be difficult. Also in all three jurisdictions, provisions for refusing vexatious FOI requests are limited, and the focus of these provisions is on the nature of the request rather than the identity or conduct of the requester. Thus, the fact that a request is made by a tobacco company or tobacco industry representative is essentially irrelevant. This may be the only way to ensure sufficient access to the FOI system and transparency of government information, but it might need reconsideration should evidence accumulate against particular requesters.
Increasing time and resource pressures on government agencies in the administration of the FOI regime necessitate a consideration of reforms to improve the capacity of FOI systems to handle tobacco industry requests. These could include the introduction of a cap or ceiling on the size of requests based on time or cost considerations (including an assessment of the operation of the ‘appropriate limit’ cut-off in the UK), and the closer alignment of charges for requests to the costs incurred in processing the request. Assessing these possibilities may require further research in each jurisdiction regarding the extent to which FOI legislation is used by ‘private interest’ groups or powerful and organised interests, such as the tobacco industry, as opposed to ‘public interest’ groups.313
Together with a greater focus on the nature of the requester, the nature and purpose of the request might also be analysed, with a view to allowing the refusal of a request that is contrary to the spirit of the legislation. In its 2012 review of the OIA, the New Zealand Law Commission canvassed but rejected the possibility of requiring FOI requesters to disclose their purpose in seeking information. It outlined the potential benefits for agencies in having knowledge of the requester’s purpose, including in determining whether a request is vexatious, whether release of the information would be in the public interest and whether charging the requester would be appropriate.314 FOI legislation in the UK, New Zealand, and the US does not presently require requesters to disclose their purpose in seeking information and the use to which they propose to put that information.315 However, requesters in some instances disclose the purpose of their request voluntarily, and in others the purpose is clear from the identity of the requester (such as a journalist) or the nature of the request.316 A difficulty with relying on purpose is that the purpose of a request may be difficult to determine (even if a particular purpose is declared), and an overly subjective standard may provide too much leeway to refuse to disclose information that is embarrassing to the government.
As Robert Hazell and Ben Worthy have recognised, ‘the performance of FOI has been influenced by external events in the political environment, in particular the government’s attitude towards the costs and benefits of FOI’.317 The political climate, and in particular, government attitudes to FOI, are vital to the success or failure of FOI reforms. Birkinshaw has noted that ‘[c]ultures take years to change. Hundreds of years of non-encouragement of wide public involvement in government will not be overcome in a short space of time’.318 Any reforms to FOI legislation must ensure that an appropriate balance is struck between relieving government agencies of unreasonable burdens generated by overly broad or improper requests or vexatious requesters on the one hand, and not deterring or prejudicing genuine requesters on the other.319 In the words of the New Zealand Law Commission, ‘[i]t is important that no amendment to the legislation unduly impairs the ability of legitimate requesters to get the information they want. That would be contrary to the purpose of the Act’.320
* We gratefully acknowledge the generous financial support provided for this research by Slater and Gordon and Melbourne Law School, as well as the advice and assistance of the McCabe Centre for Law and Cancer. We also thank Sonja Zivak for extensive research and editorial assistance, Catherine Gascoigne and Katherine Gardiner for research assistance in the preparatory stages, and Irene Han for research and editorial assistance upon finalisation of the article for submission. The Law Research Service at Melbourne Law School also provided targeted research assistance, and anonymous reviewers offered helpful advice. The views expressed here and any errors or omissions are ours.
** PhD candidate and researcher, Melbourne Law School, The University of Melbourne. Email (email@example.com).
*** Australian Research Council Future Fellow (2014-2018); Professor, Melbourne Law School, The University of Melbourne. Email (firstname.lastname@example.org).
**** Professor and former Associate Dean (Research), Melbourne Law School, The University of Melbourne; Former Legal Officer, Appellate Body Secretariat, World Trade Organization. Email (email@example.com).
1 Jenny White and Lisa Bero, ‘Public Health Under Attack: The American Stop Smoking Intervention Study (ASSIST) and the Tobacco Industry’ (2004) 94 American Journal of Public Health 240, 246.
2 Emily Savell, Anna Gilmore and Gary Fooks, ‘How Does the Tobacco Industry Attempt to Influence Marketing Regulations? A Systematic Review’ (2014) 9 PLoS One 1, 3
3 See, eg, Pascal Diethelm, Jean-Charles Rielle and Martin McKee, ‘The Whole Truth and Nothing but the Truth? The Research that Philip Morris Did Not Want You to See’ (2005) 366 (9479) The Lancet 86; Monique Muggli et al, ‘Waking a Sleeping Giant: The Tobacco Industry’s Response to the Polonium-210 Issue’ (2008) 98 American Journal of Public Health 1643.
4 See Andrew Mitchell and Tania Voon, ‘Someone to Watch Over Me: The Use of FOI Requests by the Tobacco Industry’ (2014) 22 Australian Journal of Administrative Law 18:
5 See generally Tania Voon, Andrew Mitchell and Jonathan Liberman with Glyn Ayres (eds), Public Health and Plain Packaging of Cigarettes: Legal Issues (Edward Elgar 2012); Tania Voon, ‘Acquisition of Intellectual Property Rights: Australia’s Plain Tobacco Packaging Dispute’ (2013) 2 European Intellectual Property Review 113.
6 See Mitchell and Voon, ‘Someone to Watch Over Me’ (n 4 above).
7 See Freedom of Information Act 1989 (ACT); Freedom of Information Act 1989 (NSW); Information Act 2002 (NT); Freedom of Information Act 1992 (Qld); Freedom of Information Act 1991 (SA); Freedom of Information Act 1991 (Tas); Freedom of Information Act 1982 (Vic); Freedom of Information Act 1992 (WA).
8 Freedom of Information Amendment (Reform) Act 2010 (Cth).
9 See Jarrod Hepburn, ‘Australia Denies Access to its “Plain Packaging” Arbitration Defence under Freedom of Information Law’ Investment Arbitration Reporter (Santa Monica, 12 May 2014)
10 See Philip Morris Asia Limited v Australia (Procedural Order No 11 Regarding the Parties’ Requests for the Production of Documents), UNCITRAL Arbitral Tribunal, PCA Case No 2012-12 (23 September 2014).
11 See, eg, Australia – Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging: Tobacco Products and Packaging – Communication from the Chairperson of the Panel, WTO Doc WT/DS434/14 (14 October 2014).
12 Freedom of Information Amendment (New Arrangements) Bill 2014 (Cth). See also Office of the Australian Information Commissioner, ‘OAIC to Remain Operational until Further Notice’ (8 December 2014)
13 See Explanatory Memorandum to the Freedom of Information (New Arrangements) Bill 2014 (Cth).
14 Paul Farrell, ‘Budget 2014: Freedom of Information Framework Faces Radical Surgery’ The Guardian Australia (Sydney, 13 May 2014)
15 Department of Health (UK), ‘Consultation on Standardised Packaging of Tobacco Products’ (12 July 2013)
16 HC Deb, 12 July 2013, vol 556, col 679 and HC Deb, 16 July 2013, vol 556, col 893, cited in Lorraine Conway, ‘Standardised Packaging of Tobacco Products’ (Standard Note SN/HA/6175, House of Commons Library, 3 October 2013) 15-16.
17 Department of Health (UK), ‘Tobacco control update’ (28 November 2013)
18 Sir Cyril Chantler, Standardised packaging of tobacco: Report of the independent review undertaken by Sir Cyril Chantler (3 April 2014)
19 Department of Health (UK), ‘Government backs standardised packaging of tobacco’ (21 January 2015)
20 Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC, 2014 OJ (L 127) 1, art 29(1).
21 ‘Tobacco firms win legal right to challenge EU rules’ BBC News (London, 3 November 2014)
22 Peter Evans, ‘British American Tobacco to sue UK government if plain packaging becomes law’ Wall Street Journal (New York, 26 February 2015)
23 ‘Tobacco firms challenge plain packaging law’ BBC News (London, 22 May 2015)
24 See, eg, Benjamin Hawkins, Chris Holden and Jim McCambridge, ‘Alcohol Industry Influence on UK Alcohol Policy: A New Research Agenda for Public Health’ (2012) 22 Critical Public Health 297; David Miller and Claire Harkins, ‘Corporate Strategy, Corporate Capture: Food and Alcohol Industry Lobbying and Public Health’ (2010) 30 Critical Social Policy 564; William Wiist, The Bottom Line or Public Health: Tactics Corporations Use to Influence Health and Health Policy, and What We Can Do to Counter Them (OUP, 2010); Kelly Brownell and Kenneth Warner, ‘The Perils of Ignoring History: Big Tobacco Played Dirty and Millions Died. How Similar is Big Food?’ (2009) 87 Milbank Quarterly 259. See also (in relation to the mining industry) Linda Rosenstock and Lore Jackson Lee, ‘Attacks on Science: The Risks to Evidence-Based Policy’ (2002) 92 American Journal of Public Health 14, 16.
25 See Tom McClean, ‘Who Pays the Piper? The Political Economy of Freedom of Information’ (2010) 27 Government Information Quarterly 392.
26 Ben Worthy, ‘More Open but Not More Trusted? The Effect of the Freedom of Information Act 2000 on the United Kingdom Central Government’ (2010) 23 Governance: An International Journal of Policy, Administration, and Institutions 561, 561-2. See also Patrick Birkinshaw, ‘Freedom of Information in the UK: A Progress Report’ (2000) 17 Government Information Quarterly 419.
27 Patrick Birkinshaw, ‘Freedom of Information and its Impact in the United Kingdom’ (2010) 27 Government Information Quarterly 312, 312; Worthy (n 266) 563. See also Raymond Lee, ‘The UK Freedom of Information Act and Social Research’ (2005) 8 International Journal of Social Research Methodology 1, 2; Patrick Birkinshaw, ‘Freedom of Information in the UK and Europe: Further Progress?’ (2002) 19 Government Information Quarterly 77; Tony Blair, Speech at the Campaign for Freedom of Information’s Annual Awards Ceremony, 25 March 1996, cited in Worthy (n 26) 563.
28 See Freedom of Information Act 2000 (UK) (‘FOIA 2000 (UK)’), ss 19-20.
29 Continental Research Ltd, Freedom of Information: Three Years On (Information Commissioner’s Office (UK) 2008) 1.
30 See Information Commissioner’s Office (UK), ‘Publication Scheme Plan for 2013-14’ (11 June 2013) 1.
31 See FOIA 2000 (UK), s 1.
32 Ibid s 1(1).
33 Ibid s 2.
34 Continental Research Ltd (n 29) 8.
35 Information Commissioner’s Office (UK), ‘Publication Scheme Plan for 2013-14’ (n 300) 1.
36 UK Government, ‘Publications: Transparency Data’
37 UK Government, ‘About’
38 Worthy (n 26) 563-4, 577. See also 566-577.
39 Committee on Official Information (NZ), Towards Open Government 1: General Report (Government Printer 1981) 8, 21. See also Nicola White, Free and Frank: Making the New Zealand Official Information Act 1982 Work Better (Institute of Policy Studies 2007) 21; Committee on Official Information (NZ), Towards Open Government 2: Supplementary Report (Government Printer 1981).
40 Official Information Act 1982 (NZ) (‘OIA 1982 (NZ)’), s 4.
41 White (n 39) 22.
42 OIA 1982 (NZ), s 5.
43 See Ian Eagles, Michael Taggart and Grant Liddell, Freedom of Information in New Zealand (OUP 1992) ch 9.
44 OIA 1982 (NZ), s 9(2)(b).
45 Ibid s 9(2)(ba).
46 Ibid s 9(2)(c).
47 Ibid s 9(1).
48 See Commissioner of Police v Ombudsman  1 NZLR 385, 391.
49 OIA 1982 (NZ), s 6(a).
50 Ibid s 6(b).
51 Ibid s 6(c).
52 Ibid s 6(d).
53 Ibid s 6(e).
54 Peter Waller et al, ‘Understanding the Formulation and Development of Government Policy in the Context of FOI’ (Report for the Information Commissioner’s Office, The Constitution Unit (UCL) 2009) 112.
55 Marie Schroff, ‘The Official Information Act and Privacy: New Zealand’s Story’ (FOI Live Conference, London, United Kingdom, 16 June 2005) 13.
56 Rick Snell, ‘The Kiwi Paradox: A Comparison of Freedom of Information in Australia and New Zealand’ (2000) 28 Federal Law Review 575, 575.
57 Steven Price, ‘The Official Information Act 1982: A Window on Government or Curtains Drawn?’ (New Zealand Centre for Public Law 2005) 50.
58 Leo Donnelly, ‘Access to Policy Advice Held by Government Agencies Using FOI Legislation (What New Zealand has Learned from its 25 Years’ Experience)’ (5th International Conference of Information Commissioners, Wellington, New Zealand, 26-29 November 2007) 6 as cited in Waller et al (n 54) 111 [D.15].
59 White (n 39) 91-93, 298, 231.
60 Freedom of Information Act, 5 USC § 552 (‘FOIA (US)’).
61 Wendy Ginsberg, ‘The Freedom of Information Act (FOIA): Background, Legislation and Policy Issues’ (CRS Report for Congress, Congressional Research Service, 23 January 2014) 2.
62 The US FOIA replaced the ‘Public Information’ section of the Administrative Procedure Act, 5 USC Subchapter II.
63 Ginsberg (n 61) 3.
64 See ibid 3.
65 This does not include requests made by a foreign government entity for intelligence records kept by agencies: see FOIA (US) § 552(a)(3)(e).
66 The requirements of the US FOIA apply only to an ‘agency’: 5 USC § 551.
67 FOIA (US) § 552(a)(3A).
68 Department of the Air Force v Rose, 425 US 352, 361 (1976). See also OPEN FOIA Act of 2009.
69 Other than the exemption pertaining to information prohibited from disclosure by another federal law, which must be protected from disclosure: see FOIA (US) § 552(b)(3).
70 Ibid § 552(b).
71 Ibid § 552(b)(1)(A).
72 Ibid § 552(b)(2).
73 Ibid § 552(b)(3).
74 Ibid § 552(b)(4).
75 Ibid § 552(b)(6).
76 Ibid § 552(b)(7).
77 Ginsberg (n 61) 1.
78 Patrick Birkinshaw, Freedom of Information: The Law, the Practice and the Ideal (4th edn, Cambridge University Press 2010) 466.
79 Ginsberg (n 61) 3.
80 John Ashcroft, ‘Memorandum for the Heads of all Federal Departments and Agencies: The Freedom of Information Act’ (Department of Justice (US), 12 October 2001).
81 President Barack Obama, ‘Presidential Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act’ (74 Fed Reg 4683, The White House, 21 January 2009); Office of the Attorney General (US), ‘Attorney General Holder's Memorandum for Heads of Executive Departments and Agencies Concerning the Freedom of Information Act’ (74 Fed Reg 51879, Office of the Attorney General (US), 8 October 2009); Department of Justice (US), OIP Guidance: President Obama's FOIA Memorandum and Attorney General Holder’s FOIA Guidelines – Creating a New Era of Open Government (17 April 2009)
82 The Open Government Partnership: Second Open Government National Action Plan for the United States of America (5 December 2013)
83 Department of Justice (US), ‘About the Office’
84 Office of Government Information Services (US), ‘OGIS Policy Recommendations for Improving Freedom of Information Act Procedures’ (13 March 2013)
85 Office of Government Information Services (US), ‘OGIS Recommendations to Improve the FOIA Process’ (June 2014)
86 Savell, Gilmore, and Fooks (n 2) 3. See also Katherine Smith, Emily Savell and Anna Gilmore, ‘What is known about tobacco industry efforts to influence tobacco tax? A systematic review of empirical studies’ (2013) 22 Tobacco Control 144; Anne Landman and Stanton Glantz, ‘Tobacco Industry Efforts to Undermine Policy-Relevant Research’ (2009) 99 American Journal of Public Health 45, 54.
87 See, eg, Connor (n 2); Stella Aguinaga and Stanton Glantz, ‘The Use of Public Records Acts to Interfere with Tobacco Control’ (1995) 4 Tobacco Control 222, 225.
88 Connor (n 2).
89 See Department of Health (UK), ‘Healthy Lives, Healthy People: A Tobacco Control Plan for England’ (Policy Document, 9 March 2011)
90 Conway (n 16) 1.
91 Department of Health Tobacco Programme (UK), Consultation on Standardised Packaging of Tobacco Products: Summary Report (Department of Health (UK) 2013) 8.
93 See Department of Health Tobacco Programme (UK), Consultation on the Introduction of Regulations for Standardised Packaging of Tobacco Products: Summary Report (Department of Health (UK) 2015).
94 Department of Health (UK), ‘FOI Release – Correspondence about the Government’s Consultation on the Packaging of Tobacco Products’ (16 October 2012)
95 Department of Health (UK), ‘FOI Release – Correspondence between DH, Other Government Departments and Organisations regarding Tobacco Control and Packaging of Tobacco Products in the 12 Months Preceding 25 October 2012’ (17 January 2013)
96 Department of Health (UK), ‘Response to FOI Request’ (Letter DE00000734767, 21 November 2012).
97 Gurjit Degun, ‘Tobacco giant fails to overturn ban on ad criticising plain packaging evidence’ Campaign (London, 7 January 2015)
98 Gerard Hastings, The Marketing Matrix: How the Corporation Gets Its Power–And How We Can Reclaim It (Routledge 2013) 139-43. See also Alexander Fowler and others, ‘The UK Freedom of Information Act (2000) in healthcare research: a systematic review’ (2013) 3 BMJ Open 1, 5.
99 See Kevin Dunion, Scottish Information Commissioner, ‘Philip Morris International and the University of Stirling’ (Decision 129/2011, Scottish Information Commissioner, 30 June 2011) (‘Decision 129/2011’); Kevin Dunion, Scottish Information Commissioner, ‘Philip Morris International and the University of Stirling’ (Decision 142/2011, Scottish Information Commissioner, 22 July 2011) (‘Decision 142/2011’). The Scottish Information Commissioner determined that the original information request was invalid because it was made by Clifford Chance LLP on behalf of PMI but did not name PMI, as required by section 8(1)(b) of the Freedom of Information (Scotland) Act 2002.
100 Decision 129/2011, .
101 Decision 142/2011, -.
102 Decision 129/2011, ; Decision 142/2011, .
103 Decision 129/2011, ; Decision 142/2011, -.
104 Decision 129/2011, ; Decision 142/2011, .
105 Decision 129/2011, .
106 Decision 142/2011, .
107 Decision 129/2011, ; Decision 142/2011, .
108 Decision 129/2011, ; Decision 142/2011, .
109 Tobacco Tactics, ‘FOI: University of Bath’
110 Silvy Peeters and Anna Gilmore, ‘How online sales and promotion of snus contravenes current European Union legislation’ (2013) 22 Tobacco Control 266.
111 Tobacco Tactics (n 109).
112 George Thomson and Nick Wilson, ‘The Tobacco Industry in New Zealand: A Case Study of the Behaviour of Multinational Companies’ (Public Health Monograph Series No 6, Department of Public Health, Wellington School of Medical and Health Sciences, University of Otago, February 2002) 20.
113 Grace Wong, Ben Youdan and Ron Wong, ‘Misuse of the Official Information Act by the Tobacco Industry in New Zealand’ (2010) 19 Tobacco Control 346, 346.
114 Ibid 347.
116 Tariana Turia, ‘Moving Towards Plain Packaging of Tobacco Products’ (Media Release, 19 April 2012)
117 Tariana Turia, ‘Government Moves Forward with Plain Packaging of Tobacco Products’ (Media Release, 19 February 2013)
118 Smoke-free Environments (Tobacco Plain Packaging) Amendment Bill 2013 (NZ). This Bill had its first reading on 11 February 2014.
119 Sam Sachdeva, ‘Tobacco Firms Use Stalling Strategy’ (Auckland, 13 January 2013) Stuff.co.nz
120 Ibid. See n 236 and corresponding text.
123 Aguinaga and Glantz (n 87) 222.
124 Ibid 226-7. See also Stanton Glantz and Edith Balbach, Tobacco War: Inside the California Battles (University of California Press 2000) 177-80, where the authors refer to ‘[t]he tactic of using the freedom of information act as a form of harassment’: 179.
125 Myron Levin, ‘Legal Weapon’ Los Angeles Times (Los Angeles, 21 April 1996)
126 Anne Landman, ‘Push or be Punished: Tobacco Industry Documents Reveal Aggression against Businesses that Discourage Tobacco Use’ (2000) 9 Tobacco Control 339, 342.
127 Ibid 342.
128 Beatriz Carlini et al, ‘The Tobacco Industry’s Response to the COMMIT Trial: An Analysis of Legacy Tobacco Documents’ (2006) 121 Public Health Reports 501, 502.
130 Stella Aguinaga Bialous, Brion Fox and Stanton Glantz, ‘Tobacco Industry Allegations of “Illegal Lobbying” and State Tobacco Control’ (2001) 91 American Journal of Public Health 62, 62.
131 White and Bero (n 1) 241.
132 See letter from Mark Bender (Attorney) to Walter Young, Colorado Health Department, 16 March 1994.
133 Memorandum from Samuel D Chilcote Jr to the Members of the Executive Committee, 9 October 1991.
135 ‘Funding Needed to Pursue ASSIST’, Memorandum from Bob McAdam to Pat Donoho, 2 February 1995.
138 Aguinaga Bialous, Fox, and Glantz (n 130) 62.
139 Ibid 64.
140 Ibid 63.
141 Ibid 64.
142 Robert Kahn & Co, ‘“Freedom of Information Belongs to Everyone”: Local Tobacconist Asserts’ (Draft Press Release, 6 July 1995) 3.
143 Aguinaga Bialous, Fox, and Glantz (n 130) 64.
144 Ibid 62.
145 See ibid, 63-4. See also Memorandum from Robert Kahn to Linda Mapes, 16 October 1995.
146 White and Bero (n 1) 240.
147 Ibid 241.
148 Ibid 242.
149 Tobacco Institute, ‘1996 ASSIST Research Plan’, undated.
152 White and Bero (n 1) 240, 242, 244, 246; Aguinaga Bialous, Fox and Glantz (n 130) 63.
153 See Ministry of Justice (UK), ‘Government FOI Statistics’
154 Ministry of Justice (UK), ‘Freedom of Information Statistics: Implementation in Central Government: July—September 2014’ (Statistics Bulletin, Ministry of Justice (UK), 11 December 2014) 6.
155 Ministry of Justice (UK), ‘Freedom of Information Statistics: Implementation in Central Government: 2012 Annual and October—December 2012’ (Statistics Bulletin, Ministry of Justice (UK), 25 April 2013) 3.
156 Ibid 7.
157 Frontier Economics, Independent Review of the Impact of the Freedom of Information Act: A Report Prepared for the Department of Constitutional Affairs (October 2006) 2, 27.
158 Scottish Government, 2013 Annual Report: Information Request Handling (June 2014) 5, 9.
159 Ibid 10.
160 Dave Clemens, ‘Requests Made under the Official Information Act 1982: A Survey at the Agency Level’ (Masters Thesis, Victoria University of Wellington, 2001) 27. See also Alastair Morrison, ‘The Games People Play: Journalism and the Official Information Act’ in Legal Research Foundation, The Official Information Act Seminar Papers: General Overview of Official Information and the Official Information Act (February 1997) 30.
161 Clemens (n 160) 33.
162 See Office of the Ombudsman (NZ), Annual Report 2013/2014 (2014) 110-15.
163 Clemens (n 160) 33.
164 See Department of Justice (US), ‘FOI Data at a Glance: FY 2008 through FY 2013’
166 Birkinshaw, Freedom of Information: The Law, the Practice and the Ideal (n 78) 468-9.
167 Ibid 469.
169 See, eg, Ministry of Justice (UK), ‘Freedom of Information Statistics: Implementation in Central Government: 2013 Annual and October–December 2013’ (Statistics Bulletin, Ministry of Justice (UK), 24 April 2014).
170 See Frontier Economics (n 157). For criticism of the report see Anna Colquhoun, ‘The Cost of Freedom of Information’ (Report, Constitution Unit, UCL, December 2010) 3, citing Martin Rosenbaum’s BBC blog
171 Frontier Economics (n 157) 1, 19, 37.
172 Ibid 1, 37.
173 See Scottish Government, Corporate Analysis: Freedom of Information Costing Exercise 2012 (2012).
174 See Scottish Government, 2013 Annual Report (n 158) 16.
175 Clemens (n 160) 11. Clemens describes this ‘statistical void’ as ‘a fundamental oversight and lack of evaluative planning by government’: at 11.
176 Law Commission (NZ), The Public’s Right to Know: Review of the Official Information Legislation (Law Commission, June 2012) 203 [10.145].
177 Office of the Ombudsmen (NZ), Report of the Ombudsmen for the Year Ended 30 June 2005 (Office of the Ombudsmen (NZ), 2005) 45.
178 Department of Justice (US), Summary of Annual FOIA Reports for Fiscal Year 2013 (2014) 20.
180 FOIA 2000 (UK), s 10(1).
181 Freedom of Information (Scotland) Act 2002 (Scot) (‘FOISA 2002 (Scot)’), s 10(1).
182 OIA 1982 (NZ), s 15(1).
183 Ibid s 14.
184 Ibid s 14.
185 Ibid s 15A(1).
186 Ibid s 15A(2).
187 FOIA (US) §552(a)(6)(A)(i).
188 Ibid § 552(a)(6)(A)(ii).
189 Office of Government Information Services (US), ‘Requester Best Practices: FOIA and Government Databases’
190 FOIA (US) § 552(a)(6)(B)(i).
191 Ibid § 552(a)(6)(B)(iii).
192 Ibid § 552(a)(6)(C)(i).
193 Ibid § 552(a)(6)(C)(i).
194 Ministry of Justice (UK), ‘Freedom of Information Statistics: Implementation in Central Government: 2013 Annual and October - December 2013’ (n 169) 2, 10.
195 Scottish Information Commissioner, 2013/14 Annual Report: Taking FOI Forward (September 2014) 61.
196 Patrick Birkinshaw, ‘Regulating Information’ in Jeffrey Jowell and Dawn Oliver (eds), The Changing Constitution (7th edn, OUP 2011) 365, 391.
198 White (n 39) 91-93, 228.
199 See Office of the Ombudsman (NZ), Annual Report 2013/2014 (n 162) 34.
200 Ibid 39; Nicky Hager, ‘A Researcher’s View of New Zealand’s Ofﬁcial Information Act’ (International Symposium on Freedom of Information and Privacy, Auckland, New Zealand, 28 March 2002) 2.
201 White (n 39) 142.
202 Law Commission (NZ), Public’s Right to Know (n 176) 174 [10.8].
203 Ibid [10.9].
204 Birkinshaw, Freedom of Information: The Law, the Practice and the Ideal (n 78) 468.
205 See Department of Justice (US), ‘Glossary’
206 Ginsberg (n 61) 7.
207 Ibid 9.
208 Department of Justice (US), Summary of Annual FOIA Reports for Fiscal Year 2012 (2013) 2-3.
209 Department of Justice (US), Summary of Annual FOIA Reports for Fiscal Year 2012 (2013) 8.
210 Ginsberg (n 61) 7.
211 FOIA 2000 (UK), ss 50(1), 57.
212 Ibid s 53.
213 Jonathan Brown, ‘Information Commissioner Says Ministers’ “Routine” Use of Veto Threatens to Undermine the Public's Right to Know About Crucial Decisions’ The Independent (London, 3 September 2012)
214 Information Commissioner’s Office (UK), Ministerial Veto on Disclosure of the Department of Health’s Transition Risk Register (Information Commissioner’s Office, 2012) [8.2].
215 Law Commission (NZ), Public’s Right to Know (n 176) 253 [12.6].
216 Ibid 20 [1.11].
217 OIA 1982 (NZ), ss 28(3), 3(A).
218 Ibid s 28(1)(a).
219 Ibid s 28(1)(c).
220 Ibid s 28(2).
221 Ibid s 30.
222 Ibid s 32.
223 cf the UK Information Tribunal.
224 OIA 1982 (NZ), s 34.
225 FOIA (US) § 552(a)(6)(A).
226 Ibid § 552(a)(4)(B).
227 Kennecott Utah Copper Corporation v US Department of the Interior, 88 F3d 1191, 1202.
228 Kissinger v Reporters Committee for Freedom of the Press, 445 US 136, 150 (1980).
229 See FOIA (US) § 552(a)(4)(B).
230 Ibid § 552(h)(3).
231 OIA 1982 (NZ), s 12(2).
232 Committee on Official Information (NZ), Towards Open Government 2: Supplementary Report (n 39) 69.
233 Law Commission (NZ), Public’s Right to Know (n 176) 155 [9.23].
234 Law Commission (NZ), Review of the Official Information Act 1982 (Wellington, R40, October 1997) [E4].
235 Law Commission (NZ), Public’s Right to Know (n 176) 152 [9.4]-[9.5].
236 OIA 1982 (NZ), s 18(f). See also s 18A(2); Office of the Ombudsman (NZ), Part 2A – Administrative Reasons for Refusing Requests (Practice Guidelines) 9.
237 OIA 1982 (NZ), s 18A(1).
238 Ibid s 18B.
239 Price (n 57) 37; Office of the Ombudsman (NZ), Administrative Reasons (n 236) 9-11.
240 See, eg, Price (n 57) 38; Law Commission (NZ), Public’s Right to Know (n 176) 158 [9.32]. See also Eagles, Taggart and Liddell (n 43) ch 9.
241 Law Commission (NZ), Public’s Right to Know (n 176) 154 [9.16].
242 Ibid 153 [9.10]-[9.11], [9.13].
243 See Wong, Youdan, and Wong (n 113).
244 Robert Hazell, ‘Freedom of Information in Australia, Canada and New Zealand’ (1989) 67 Public Administration 189, 207.
245 See Information Commissioner’s Office (UK), Fees that May be Charged When the Cost of Compliance Does Not Exceed the Appropriate Limit (Guidance, 20 November 2013).
246 Freedom of Information and Data Protection (Appropriate Limits and Fees) Regulations 2004 (UK) (‘UK Fees Regulations 2004’) reg 6(2). See also Information Commissioner’s Office (UK), Fees that May be Charged (n 245) 3-4.
247 Information Commissioner’s Office (UK), Fees that May be Charged (n 245) 3.
248 Ibid 4.
249 See ibid; FOIA 2000 (UK), s 12(1).
250 FOIA 2000 (UK), s 13(1).
251 UK Fees Regulations 2004, reg 7. See also Information Commissioner’s Office (UK), Fees that May be Charged (n 245) 3.
252 See Information Commissioner’s Office (UK), ‘Freedom of Information Act 2000 (FOIA) Decision Notice’ (Decision Notice FS50403403, 31 January 2012) (‘ICO Decision Notice’). The complainant is not identified in the decision notice.
253 See FOIA 2000 (UK), s 35(1)(a).
254 ICO Decision Notice (n 252) .
255 Ibid .
256 Ibid .
257 Ibid -.
258 OIA 1982 (NZ), s 15(1A), (2).
259 Ibid s 15(2).
260 Ministry of Justice (NZ), Charging Guidelines for Official Information Act 1982 Requests (Guidelines, Ministry of Justice (NZ), 18 March 2002).
261 Ibid 3 [3.1].
262 Ibid 4 [5.1].
263 Ibid 5 [7.1]. See also 5−6 [7.2].
264 See Office of the Ombudsman (NZ), Annual Report 2013/2014 (n 162) 111.
265 Law Commission (NZ), Public’s Right to Know (n 176) 202 [10.139]. See also 204 [10.151]-[10.152].
266 Ibid 163 [9.58], 202 [10.142]. See also 205 [10.159]-[10.160]; White (n 39) 227.
267 FOIA (US) § 552(a)(4)(A)(i). For a detailed discussion of fees and fee waivers under the US FOIA, see Department of Justice (US), Guide to the Freedom of Information Act - Fees and Fee Waivers (2014) (‘Guide – Fees’).
268 See FOIA (US) § 552(a)(4)(A)(ii)(I)-(III).
269 See ibid § 552(a)(4)(A)(ii)(I); see also Office of Management and Budget (US), Uniform Freedom of Information Act Fee Schedule and Guidelines 1987 (Guidelines, Fed Reg 52, Office of Management and Budget (US), 27 March 1987) 10,017 (‘US Fee Guidelines’); Department of Justice (US), Guide – Fees (n 267) 108-110.
270 See FOIA (US) § 552(a)(4)(A)(ii)(II).
271 See ibid § 552(a)(4)(A)(ii)(III).
272 The OPEN Government Act of 2007 amended the US FOIA to create the OGIS, essentially an FOIA Ombudsman: Office of Government Information Services (US), ‘The Office of Government Information Services’
273 FOIA (US) § 552(a)(4)(b).
274 See ibid § 552(a)(4)(A)(iv)(I)-(II).
275 See ibid § 552(a)(4)(A)(iv)(I); see also US Fee Guidelines (n 269) 10,012, 10,018.
276 See FOIA (US) § 552(a)(4)(A)(iv)(II); US Fee Guidelines (n 269) 10,018-19.
277 See Hall v Central Intelligence Agency, (DDC 2006 WL 197462, No Civ A 04-00814, 25 January 2006) 3, n 4, where the court recognised that it would be improper for agencies to inflate fees to discourage requests.
278 FOIA (US) § 552(a)(4)(A)(ii), (iv)-(vi), (viii).
279 See Department of Justice (US), Guide – Fees (n 267) 122-137.
280 OPEN Government Act of 2007 (US), Public Law No 110-175, § 3, §6, 121 Stat. 2524 (2007).
281 Department of Justice (US), Summary of Annual FOIA Reports for Fiscal Year 2013 (2014) 20.
282 FOIAonline is an online portal that enables the public to lodge FOIA requests electronically and track the progress of their requests, and allows agencies to provide records to the requester (and to the general public).
283 Office of Government Information Services (US), ‘OGIS Policy Recommendations’ (n 84) 2. See also Office of Government Information Services (US), ‘OGIS Recommendations to Improve the FOI Process’ (June 2014)
284 FOIA 2000 (UK), s 14(1), (2). See also FOISA 2002 (Scot), s 14.
285 Information Commissioner’s Office (UK), Dealing with Vexatious Requests (Section 14) (Guidance, 14 May 2013) 4 (emphasis in original). See also Information Commissioner v Devon County Council & Dransfield  UKUT 440 (AAC) (28 January 2013) .
286 Information Commissioner’s Office (UK), Dealing with Vexatious Requests (n 285) 3, 5 . See also Scottish Information Commissioner, Vexatious or Repeated Requests (Briefing, 2013) 2
287 Information Commissioner v Devon County Council & Dransfield  UKUT 440 (AAC) (28 January 2013) .
288 Information Commissioner’s Office (UK), Dealing with Vexatious Requests (n 285) 6 .
289 Frontier Economics (n 157) 31.
291 OIA 1982 (NZ), s 18(h).
292 Office of the Ombudsman (NZ), Administrative Reasons (n 236) 12.
293 See Young v Holloway  P 87; Norman v Matthews [1916 – 1917] All ER 696. See also Re Vernazza  1 All ER 183; Riches v DPP  2 All ER 935; Attorney-General v Hill (1993) 7 PRNZ 20, cited in Office of the Ombudsman (NZ), Administrative Reasons (n 236) 12.
294 Office of the Ombudsman (NZ), Administrative Reasons (n 236) 12.
295 Ibid 12-13.
296 Ibid 12.
297 Ibid 13.
298 Ombudsmen Act 1975 (NZ), s 17(2).
299 See Office of the Ombudsman (NZ), Annual Report 2013/2014 (n 162) 113.
300 Law Commission (NZ), Public’s Right to Know (n 176) 165 [9.66], [9.68].
301 Ibid 165 [9.67]. See also Scottish Information Commissioner, Vexatious or Repeated Requests (n 286).
302 Law Commission (NZ), Public’s Right to Know (n 176) 166 R43.
303 Freedom of Information Act 1982 (Cth) s 89K; Law Commission (NZ), Public’s Right to Know (n 176) 166 [9.72]-[9.73].
304 Law Commission (NZ), Public’s Right to Know (n 176) 167 R46.
305 Ibid 166 [9.73].
306 In re Powell, 851 F2d 427, 434 (DC Cir 1988); cf Zemansky v EPA, 767 F 2d 569, 573-74 (9th Cir 1995) (cited in Department of Justice (US), Department of Justice Guide to the Freedom of Information Act – Litigation Considerations (Discussion Paper, 2014) 824).
307 Department of Justice (US), Guide – Litigation (n 306) 824-5, citing numerous case examples in n 358. See, eg, Goldgar v Office of Administration, 26 F 3d 32, 35-36 & n 3 (5th Cir 1994); Peck v Merletti, 64 F Supp 2d 599, 603 (ED Va 1999); Crooker v US Marshals Service, 641 F Supp 1141, 1143 (DDC 1986).
308 (2d Cir 2011 WL 3890446, No 09-4684, 6 September 2011).
309 Robert v Department of Justice (EDNY 2005 WL 3371480, No 052543, 12 December 2005) 12-15.
310 Robert v Department of Justice, No 09-4684, 2011 WL 3890446 (2d Cir 6 September 2011).
311 See, eg, Tania Voon and Andrew Mitchell, ‘Time to Quit? Assessing International Investment Claims Against Plain Tobacco Packaging in Australia" (2011) 14 Journal of International Economic Law 515; Tania Voon and Andrew Mitchell, ‘Face Off: Assessing WTO Challenges to Australia’s Scheme for Plain Tobacco Packaging’ (2011) 22 Public Law Review 218.
312 OIA 1982 (NZ), s 18(f).
313 Law Commission (NZ), Public’s Right to Know (n 176) 202 [10.141]. See also Robert Hazell, Ben Worthy and Mark Glover, The Impact of the Freedom of Information Act on Central Government in the UK: Does FOI Work? (Palgrave Macmillan 2010) 264.
314 Law Commission (NZ), Public’s Right to Know (n 176) 167 [9.76]. See also Law Commission (NZ), Review of the Official Information Act 1982 (n 234) .
315 Law Commission (NZ), Public’s Right to Know (n 176) 167 [9.77].
316 Ibid 167 [9.76].
317 Robert Hazell and Ben Worthy, ‘Assessing the Performance of Freedom of Information" (2010) 27 Government Information Quarterly 352, 353.
318 Birkinshaw, ‘Regulating Information’ (n 196) 387.
319 Law Commission (NZ), Public’s Right to Know (n 176) 154 [9.17].
320 Ibid 159 [9.37].
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