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ORIGINAL ARTICLES The use of public records hcts to interfere with

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Abstract

Objective-To examine the content of public records requests to the tobacco control section (TCS) of the California Department of Health Services (CDHS) and other health agencies to determine if the tobacco industry is using the law to interfere with tobacco control. Method~-Data were collected through review of TCS files, newspapers, Californians for Smokers' Rights publications, and interviews with key informants.

Fields

Named Organization
Air Resources Board
American Cancer Society
American Heart Association (Voluntary health organization that focuses on cardiac health)
Voluntary health organization that focuses on cardiac health and stroke. AHA occasionally teams with tobacco retailers to engage in promotions/fund-raisers (see http://www.smokefree.net/doc-alert/messages/247136.html and http://www.rawbw.com/~jpk/stand/Pictures.html).
American Lung Association
Voluntary health organization concerned with fighting lung disease, promoting lung health and advocating clean air, indoors and out.
American Stop-Smoking Intervention Study (Six year effort to reduce smoking rate in 17 U.S. states nat)
ASSIST was funded with approximately $114 million over six years in the early to mid 1990's by the American Cancer Society and the National Cancer Institute for a period of approximately 6 years.
California Air Resources Board
California Department of Education
California Department of Health Services
Centers for Disease Control and Prevention (CDC)
*Department of Education (use United States Department of Health, Education & We
National Cancer Institute NCI
Division of Cancer Prevention and Control, National Cancer Institute located in Rockville, MD
National Institutes of Health (NIH)
Philip Morris & Co. Ltd. (Cigarette manufacturer, incorporated in U.S. in 1902)
Philip Morris & Co. Ltd.., was incorporated in New York in April of 1902; half the shares were held by the parent company in London, and the balance by its U.S. distributor and his American associate. Its overall sales in 1903, its first full year of U.S. operation, were a modest seven million cigarettes. Among the brand offered, besides Philip Morris, were Blues, Cambridge, Derby, and a ladies favorite name for the London street where the home companies factory was located - Marlborough.
R.J. Reynolds Corporation (second tier subsidiary of RJR Industries)
State Department
Tobacco Control Section
Tobacco Institute (Industry Trade Association)
The purpose of the Institute was to defeat legislation unfavorable to the industry, put a positive spin on the tobacco industry, bolster the industry's credibility with legislators and the public, and help maintain the controversy over "the primary issue" (the health issue).
*University of California (use specific branch)
Named Person
Aguinaga, Stella
Camel, Joe
Dobson, Paul
Escher, Joseph H., III
Defense
Lucido, Sal
Merrell, Bob
Stuart, Marietta
Williams, Glenn
Date Loaded
18 Jul 2005
Box
7821

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• ORIGINAL ARTICLES The use of public records hcts to interfere with tobacco control Stella Aguinaga, Stanton A G/antz Abstract ~- Objective-To examine the content of public records requests to the tobacco control section (TCS) of the California Department of Health Services (CDHS) and other health agencies to determine if the tobacco industry is using the law to interfere with tobacco control. Method~-Data were collected through review of TCS files, newspapers, Californians for Smokers' Rights publi- cations, and interviews with key infor- mants. Requests sent to the CDHS AIDS and Drug and Alcohol Program, the Department of Education HIV Preven- tion Program~ and the Air Resources Board (ARB) were used as controls. Results-Between 1991 and 1993, TCS received 59 requests for 371 documents, averaging 15.5 documents per month. Control health programmes did not re- ceive any document requests during this period. ARB received their usual requests for approximately 100 narrowly specified documents a year. Conclusions - Tobacco control pro- grammes received a high volume of public records requests compared to other health programmes. The infor- mation obtained was used for public relations efforts to discredit tobacco con- trol programmes. Public health pro- fessionals must be aware of this tobacco industry tactic to undermine public health. Departmental policies addressing response to public records requests must consider ways to respond to large requests without disruption of the work of public health professionals. ( Tobacco Control 1995; 4: 222-230) Keyw0rds: tobacco control; health policyl health education ; public records |nstitute of Health Abbrev,at,om u~ed Policy Studies, Del~artment of ARB Medicine, University ASSIST of California at San ~C F~_ncisco, San CDHS Francisco, Califo~ia COMMIT 94143, USA CPP~ S Agumaga CSR SA Glan~z FOIA L~ ~rr~¢~¢ m Dr OSH S~ A GI~z, Dt~s~on TAPS ~ ~. Umvcr~ of TCP C~if~n,a al S~ Fr~c~co. TCS ~1~174. USA Introduction The federal Freedom of Information Acl (FOIA) enacted in 1966 requires that federal agencies make their records promptly available upon request to any person, without regard to the reasons for the request. It has nine exemptions, mainly to protect national se- curity, trade secrets, and privacy.~ It was amended in 1974 and 1976 to narrow the scope of the exem_ptions. The FOIA was passed during a time of great public concern about government secrecy regarding the Vietnam War, was amended following the Watergate scandal, and was intended to allow American citizens to monitor their government's ac- tivities.~- In t968, California, like many other states, created the California Public Records Act (CPRA), modelled after the federal Free- dom of Information Act.~ The CPRA "is designed to give public access to information in posse~ion of public agencies,''~ and is used by the public and the press to inspect public documents and monitor public expenditures. The public policy goal of these laws was to provide citizen access to information collected by the government, thereby ensuring an open governmental process. The tobacco industry, however, has been using freedom of infor- mation laws not simply to collect information, but as another tactic in its strategy to interfere with activities of public health agencies seeking to reduce tobacco use. We studied the requests for documents under the CPRA to determine if the tobacco industry's use of the freedom uf information act is different from requests made by the public and other businesses and interest groups. The tobacco industry's use of freedom of information laws as a tactic against public health efforts raises management and policy issues for government agencies that have an obligation to promote public health by re- ducing tobacco use and that respond to Air Rcsourcc~ Board Ar/~er~c~1 Stop S~1~llg [~terv~tt,oo ~tud~ fOr ~ccr Prcvcnoon ~ters for D~s¢ ~nt~[ ~d Preston ~hfo~ia De~at of H~ ~nity Int~entioa Trial for Smoking ~[ifomsa Publi~ R~ds Act ~h~rni~ for S~ers' F~ ~ lnI~ ~ T~~~ TI14131741
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abcmt the agency' l~x~ranunes and ~-~on- mzkmg process. Agencies will need to procedures and poik~ that ~e ~l~propr~te to respond ~e requests, while mlnim~smg m- PROPOSITION 99 In 1988, California voters enacted Proposition 99 (Tobacco Tax and Health Promotion Act of 1988), which increased the cigarette tax by 25 cents a pack and allocated 20 % of the revenues m anti-tobacco edueatiol~.~ Even though the legislature and governor have never allocated the full 20% of revenues to tobacco control activities, Proposition 99 spawned the largest and most effective tobacco control campaign in history.)-) All Proposition 99 funded tobacco control plans, implementation, and evaluation documents are public records, and therefore accessible to anyone under the California Public Records Act (CPRA). The Proposition 99 tobacco control pro- gramme has four major components: media campaign, community programmes, school- based programmes, and evaluation. The Tobacco Control Section (TCS) of the California Department of Health Services (CDHS) administers the media, community programmes, and evaluation components. (The California Department of Education administers the school based programmes.) TCS runs the community programmes through 6l local lead agencies (LLAs), one in each of California's county or city health departments. LLAs are charged with, among other things, developing coalitions with broad community participation to advocate local tobacco control.~° Largely due to the LLA activities, 287 local clean indoor air ordinances were enacted between 1989 and June 1994." I n addition, LLAs sponsored innovative health promotion programmes modelled on tobacco promotions, such as anti-smoking racing cars and sporting events for high school students. The full "range of local community based activities, combined with the media campaign and the transient effect of the tax increase, led to a 27% drop in smoking prevalence from 1988 to 1993 in California, compared to less than 10% in the rest of the United States.6 Methods Our primary emphasis is studying CPRA requests directed at state and local health departments in California charged with imple- menting Proposition 99's tobacco control pro- gramme. Data collection was conducted from November 1993 through June 1994. Data were collected through examination of TCS CPRA files, which were organised by date, requester, and destination, as well as open ended struc- tured interv)ews with staff from TCS, LLAs, the American Lung Association, ~.nd the American Heart Association. Interviews were recorded a~d foilo~-d a general outlme. We interviewed mdivktuais d/rectly involved in responding to the C.PRA based r~lucsts as well c~nt~[~, we ~o interviewed from the Na6ona~ Cancer Institute (NCI) corranunity ~tc~t~ tr~ for ~fi~ (CO~IT) ~ ~ ~g i~te~ti~ study for ~n~r pre- v~fion (ASSIST) ~d o~er state ~al~ ~ar~ts. We ~l~ state h~l~ depart- m~ ~at are ~rt of ASSIST ~d tha~ have ~n ~c m~et of public records request a~ivities. As control groups, we selected three pro- gr~es: ~c ~HS AIDS and Alcohol and Drugs p~grammcs, and ~c Department of Eduction HIV Prevention Program. These progr~cs were selected because ~ey are health promotion progra~es addressing po- tentially controversial issu~ ~at may motivate • e public or organised citizen interest groups to make CP~ requests. As an additional control, we used the California Air Resources Board (ARB), a regulato~ agency which is part of ~e California Envi~nmental Pro- tection Agency (CaIEPA). All zhe control progra~es' funding comes from ~e state general fund ~d, in some cases, matching federal f~ds. They differ from the tobacco control programme in that they are not funded by a specific tax. We also investigated possible connections be~een ~e au~ors of the CP~ requests and • e tobacco in~st~ through interviews, news- paper articles, and ~e newsletters ~d publi- cations from ~lifornians for Smokers' Rights (CSR). CSR is a non-profit corporation created in 1991 to protect the rights of ~lifomians to smoke, and to monitor and oppose tobacco control activities at ~e state ~d local level,~= )~ and is similar to other groups org~ised by ~e tobacco industry.**-~" Our task was to determine whether such requests were part of a c~rdinated campaign by pro-tobacco interests or )ust a random aw~ening of concerned citizens Results Between January 1991 and December 1993, TCS received 59 CPRA requests for 371 documents, encompassing a broad range of documents such as LLA progress reports and quarterly cost reports, local and regional programme plans, grants, and state surveys and evaluation reports. Some requests were for several documents and some were for "all'" documents related to Proposition 99. The CPRA activity, strong during April and May 1991 (17 requests), and March 1992 (four requests), intensified throughout 1993 05 requests). Several thousand pages were copied, averaging 15.5 documents per month. TCS staff estimates that they spent at least eight hours to respond to each request. In some instances, due to the extent of the request, TCS was not able to comply immediately with the full request, and the author of the request instead accepted reports and other printed material that were already available to t,he TI14131742
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Fair Busirmss Policy ! P. Bagatclos[ Los Angeles I Long Beach Business Hospitality Coalition ! • .... .... I I,, Oe ce. I I Cl moo, I I for I I I O oe. ~ow~. ~=.et,'.I I ~s,~,. I I Smokers' Rights I I Munger.Tolles. & Olson I Bagatelos & ~adern p~ ~o¢i,~.o,. i:uneat association Connection between CPR./I requeItors and the tobacco Industry. public, such as Toward a Tobacco Free Callfornia,~-~ a series of reports on progress and plans for Proposition 99 published by CDHS. SOURCES OF ePR^ gEquEsrs During the time period studied the authors of requests changed over time with little overlap ; as soon as requests from a particular firm or group ceased to arrive, requests from another source would start. The figure displays the apparent connections between most of the CPILA request0rs and the tobacco industry. ha April 1991~ Mungcr~ Tolles and Olson, a law firm based in Los Angeles, made one large CPKA request, the first request received by TCS, which asked for all Proposition 99 documents. (One year earlier, this firm had requested all documents related to the research and market surveys conducted by CDHS before the development of the health education and media campaign.) Later this firm was associated with Los Angeles Hospitality Co- alition, a tobacco industry front group involved in defeating local ordinances.' :~ From April to June 1991, the CPRA requests came primarily from the law firm of Nielsen, Merksamer, Hodgson, Parrinello and Mueller, through two of their lawyers, Paul Dobson and Thomas Hiltachk. This law and lobbying firm has long- st~"~ding ties wi& the tobacco industry mad represents, among other clients, the Tobacco institute, R.J Reynolds, and Philip Morris; and it has received over 82 millim', from the tobacco industry since 1988.'* In January 1992, when Nielsen, M.erksamer Hodgson, Parrinello and Mueller stopped filing CPRA requests, requests came from the law firm of Howard, Rice, Nemerovsld C.anady, Robertson and Falk, through an attorney, H Joseph Escher III, representing RJ Reynolds~s (January to April, 1992). Thi~ firm requested the data tapes of the California Tobacco Survey, conducted by University of California at San Diego (UCSD) for TCS. (The California Tobacco ~;urve~,' or0ducedt among its findings, data showing that R~R's "Joe Camel" cartoon character led more children to smoke.-~) In August 1992, Californians for Smogers' Rights (CSR.) started its search for all of Proposition 99 documents, through its preSi- dent, Bob Merrell, its employee, Gleva Williams, or its legal representative, Thorras Hiltachk, now with the law firm Bell ~d Hiltachk. CSR filed the most CPRA requeSt~.~ (58% of the total). The connectmn CSR and the tobacco industry was expliot in a letter from a CSR member te San Carlos City Council member that "'the postcard came from RJ Tobacco Co- backed - Californians Rights. "'~: CSR shares its mailing lists ,aith TI14131743
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~, ~d G~ W~ GR's ~- t~ ~us~ fret ~p ~ mvolv~ m ~mg ~ o~ (m ~lif~) m Sac~nto, ~ ~, V~ia, El Oro~t~, ~i~, ~d ~t~.t~ ~ ~ ~ar]~ Bell, ~as Hilm~k's ~mer, ~s ~e ~surer of Samm~m* for Fair Busi- ness Poticy. In &utumn 1993~ while CSR was still acdve in its CP~ ~, ~e Cla~mont In- stitute, a not-for-profit ~liti~i sci~ce analy- sis group, requested all P~$ition g9 rela~ed do~mcnts either directly or through a ~n- sulting firm, Nelson ~nsuIfing. The Claremont Institute received ~000 ~rom Philip ~or~s USA in 1993.~° CHARACTERISTICS AND IMPLICATIONS OF REQUESTS The requestors for Proposition 99 documents also attempted to intimidate TCS employees through requests for personal information (for example, salaries), and threats of immediate legal action if TCS did not comply with the request. CSR was the most aggressive of the CPRA requesters in the use of this type of strategy. Early m its campaign, CSR's lawyer, Thomas Hiltachk, contacted TCS weekly to follow up on Bob Merrell's requests, even after he was told by TCS that some of the documents requested were not yet available to the public. Most of CSR's CPRA letters stated "if I have not received a response... I will be forced to begin legal proceedings to enforce my 'fundamental and necessary right' [to] access public information.'':~t This threat of legal action was constantly used, even though TCS consistently responded to the requests. When TCS redacted thenames of individual employees on Quarterly Costs Reports to protect LLA employees from invasion of privacy, CSR considered this unacceptable. CSR verbally threatened to sue TCS staff for not complying with its right to review public records. After a series of consultations between TCS and CDHS attorneys, TCS decided it could protect the privacy of their local and contract employees and withheld the infor- mation; CSR did not file their threatened lawsuit until March 1995. Glenn Williams filed for a writ of mandate against TCS at the Sacramento County superior court (Case No 95CS 00015) to have access to the names in the Quarterly Costs Report of 38 LLAs from 1991 to June 1993. At this time, the supervising deputy attorney general decided that the names were of public record, and TCS had to copy the reports for Williams without further court dispute/'- As part of the settlement, TCS was mstructed to assume all costs associated with copying the reports. TCS is currently resisting efforts tt~ force it to pay the $15000 in Williams' attorney fees. "l'h¢ requests also disrupted the ~ork of TC.'; staff. A response to one of the earliest rct|t|t.~,t.~ (April 1991) made by the law firm Munger) 1 ullc~ and O|~'~ statcO that com- plying w~th ~ ~[ for ov~ ~ fil~ ~uld ~ "'~~, dis~pt~ve, ~d time c~- ~,'" + +id that a~ng~ts ~ TCS wi~ a ~" ~hine to copy ~e ~ts.~ ~is app~a~ was the only r~ ~lut~n to ~mply wi~ the request without dive~ing TCS staff for days or weeks. ~e law fi~ d~lined ~is offer and ac~pted 27 documents and r~orts that TCS ~ovided • at addressed all the topics mcluded in the request. In September 1993, Nelson Consulting, representing ~e Claremont Institute, requested all documents related to pro- grammes funded by Proposition 99 money since November 1988..u TCS estimated that to comply with such request would have required one or two staff persons for at least a month working full time.a:' Nelson ultimately ac- cepted all reports already available to the public. The firm atso stated that their client would come to TCS with his own copy machine. (This had not happened as of May 1995.) CSR did bring its own copy machine to TCS o~ces on several occasions. In such cases+ according to CDHS policies, no fees are charged for copying or for staff time required to respond to CPRA requests. ~" LOCAL LEAD AGENCIES Local Lead Agencies (LLAs~ in county and city health departments also received CPRA requests for hundreds of documents, primarily in February 1993. At least 12 LLAs (Alameda. Contra Costa, Fresno, Los Angeles, Madern. Marin, Mendoncino, Riversidc~ Sacramento. San Diego, San Francis, o, and Santa Clara received a CPRA letter asking for all material related to Proposition 90 funded projects since January 1989 (hundreds of documents, an average of 3550 to 4000 pages per request per LLA), with a $50 personal cheque enclosed. In most cases, the amount sent did not cover the costs of copying (at 25 cents a page), and an additional amount was sent. As previously mentioned, CDHS policy does not include charges for time spent in complying with CPRA requests.:'~ Although the letters were each signed by a different person, who lived in the county the LLA served, they followed a form letter format. The text of the letters was either the same (including typographical errors) or very similar, indicating an organised campaign to obtain documents from the LLAs The American Smokers" Journal, one of the several pro-tobacco industry, publications,:'r later reported that the CPRA letters to the LLAs were a "coordinated effort by members of Californians for Smokers" Rights" to in- vestigate any misuse of pubhc funds/~ None of the letters' authors, however, acknowledged being a member of CSR. Further, several of documents requested were for duplicates of the documents that CSR had already requested from TCS. In March 1092, the number of CPRA requests to LLAs prompted TCS to TI14131744
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~ a memorandum to a]l Tob~a:o Coar.rol Pro~-~:t directors ¢mtlmmg CDHS's foli~g ~ p~m~ in ~ s~ r~s.~ m~tings. ~ ~litions of member, ~i6~ly or~i~ by ~e LLAs, ~lay~ a major in~ep~dent ~le in velopment of local toba~ ~nt~l o~ina~es ~roughout ~lifomia, ~n~bu6ng to reduced tobac~ ~ns~pfion. CSR ~lled several LLAs (including Alameda, ~ntra ~sta, Matin, Sacr~en~o, San F~cis~, San Mat~, San~ Clara, San D~go, and S~ Luis Obis~) ~ ~d out me~ting dates. To date, onl~ coalition meetings ~ Sacramento have ~en ~nsistendy attended by a ployee, Gle~ Williams. Over time~ coalition members i~me~ to accept ~e fact of pot~tiai ~res~c~ of pro-tobacco imerests in ~eir m~fings, ~ ~ey continue to c~ on their b~siness as usual, warning o~er coali~ons and tobacco control professionals ~at ~ey should not let ~is presence intimidate ~em or de~er • em from pursuing ~eir planneda~ivities. San Fr~cisco was also ~e focus of several o~er CP~ requests ia Autu~ 1993, when a smoke-free workplace ordia~c¢ was under active consideration. The requests c~e from ~e law fi~ Bagatelos ~ Fadem, both former tawyers at Nielsen, Merksamer e~ aL This law firm was also associated with Long Beach Business and Convention Coalition, ~lifomians for Fair Business Polic~, Los ~geles Hospitality Coalition, tobacco mdust~ front groups involved in defeating local ordinances in California.s~a~s In dillon, Bagatelos is also associated wi~ STOP, a smokers' rights group associated wi~ the Tobacco Institute.~s At ~e time, tobacco control staff had to divert time awa~ from informing ~e public aho~t ~e ~gers of secon~and smoke and from r~ponding technical questions from ~e board of super- visors (~e local legislative bod~) regarding ordinance so ~at ~e demands for ~oc~ents from ~e tobacco industry representatives could be met. ACTIVITIES AT THE FEDERAL LEVEL AND IN OTHER STATES The OHce on Smoking and Health (OSH) of the Centers for Disease Control and Pre- vention (CDC) has consistently received FOIA based requests, mainly through law firms,~-~ document research, and retrieving com- panies,~*'s3 and, in at least one instance, from the Tobacco Institute itseifJ~ In general the requests are for drafts and all documents related to the surgeon general's reports on the health dangers of tobacco use, as well as for a~y other CDC sponsored activity such as con- ferences, meetings~ media campaigns, special protects, and committees. In some instances, recommendation is made by OSH that pre- decasional documents or work in p~,ogress be ~xempt from rek-ase, although ~ decision ultimately rests ruth mtber C.DC adma-us- ~ot ~ Public Heaitah Scrv~:e. OSH staff ke,~p track of t.F~e ~ spent as well as the ~cofry~g ~x~sts, ~ CDC usually rec~ers all or some of the costs recurred. The Office Smoking and Health, which is pa~ of CDC's National C, emer for Ouxmic Disease Pre- ~ ventioa and Heakh Promooon, is the office that "receives the most FOIA requests in this centre. From 1991 to May 1995, OSH received a total of 88 FOIA based requests (45 in the 1991-93 'period, 26 in 1994, and 17 in 1995), and the number has been increasing steadily since 1993 (Sal Lucido, personal communication, June 1995). In 1992 the tobacco industry filed an FOIA request with the National Cancer Institute ('NCI) for all the documents related to the Community intervention Trial for Smoking Cessation (COMMIT) programme, particu- larly the data tapes of COMMIT evaluauon studies, and tapes and completed question- naires of a COMMIT youth survey of 9th grade students. COMMIT was a controlled trial to assist heavy smokers to stop smoking through increasing the [eve[ and availability of community based smoking cessation resources. It was conducted in 11 community pairs, 10 in the USA and one in Canada.~ At that time, several documents and protocols were released, but the data tapes were withheld on the basis that it was predecisional information that could potentially change the outcome of the con- trolled trial. The case was taken to the United States *district court for the District of Columbia (Civ No 92-2636-GHR) and is still under consideration. Also in 1992, at the same time that TCS received the request for the data tapes from the UCSD survey linking RJR's Joe Camel character with children's smoking, NIH received a very large request for all documents related to research on tobacco advertising and youth smoking, as well as to CDC's 1989 Teenage Atthude~ and Practices Survey (TAPS), which also had shown thar c~garett¢ advertising plays a role in causing tobacco by children.~ .... Another NCI funded tobacco control programme, the American Stop Smoking Intervention Study for Cancer Prevention (ASSIST), has also received several F01A requests from the Tobacco Institute as well as from other representatives of tobacco interesu~ including law firms, since its earls" stages 1991. The requests were directed b~th at NCI and at some of the 17 states awarded contracts by NCI. For example, the departments health in Colorado, Massachusetts, Minnesota~ North Carolina, New Mexico, and Missouri have received several requests for documents related to the development of their pr0~. grammes. How much information is released in particular states varies according to language and scope of each state's pui~ records act. , In Auturrm 1994, the Colorado State Department received several requests for P~ lic records. The informatum obtained ~ras ~ used in an attempt by the tobacco ind~ T114131745
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allegedl~ illegal ~tion ha a campa, gn to pass ~dz~cndment I, a proposioon sirmlar to The Color-ado experience illustrates anodacr possible hatcmt of the public records requests by the tobac..~o industry, which is an attempt to connect public funds with allegedly improper lobbying activities by govcrranent employees. Thus it is extremely important that educational activities, including those aimed at educating the Icgislamre~Fnd policy makers, bc~writtcn in clear language so as not to bc misconstrued or misrepresented by the tobacco industry. Both at the federal level and in othcr states, the effects and the characteristics of the tobacco industry requests arc similar to those observed in California. In one instance, NCI had to hire a separate person to process requests under FOIA; otherwise, the volume of requests and the amount of time to comply with them would have required staff time to bc diverted from programme functions to retrieve and copy the material requested, impairing the ability of regular programme activities to take place. COMPARISON WITI-I NON-TOBACCO PROGRAMMES In the time studied, the Deparr.rncnt of Hcalth's AIDS programme did not receive any CPRA requests. In fact, in the past eight years, this programme has only received an estimated total of I0 rcqucsts for documcnts. The Department of Education's HIV prevention and education prograrnmc has never received a CPRA request. The alcohol and drug abuse programme of CDHS had no record on how many requests had bccn received, but the community relations officer stated they wcrc rare. The &it Resource Board (ARB) reported receiving an average of 100 requests per year, almost all from lawyers representing a variety of interests, since their regulatory scope is very broad. In contrast to the all-encompassing general requests received by TCS, however, the requests to the ARB were generally narrowly specified, focused in limited areas related to a specific regulatory action by ARB, and did not include threats of legal action. When the request is too large, the ARB makes the documents available for inspection at its office so as not to disrupt its regular activities. Discussion The laws addressing the right to access to public records give taxpayers a legitimate tool to monitor spending of public money and government activities. However a quantitative and qualitative difference in information requests received by tobacco control pro- grammes and other public health problems (such as AIDS, and Drugs and Alcohol) is evident, suggesting that the tobacco industry is using public records acts as another tacdc in daeir strategy to disrupt public health efforts to cxmtrol tobacco a~t to ~tuencc policy making ~ ~ ~ ~t to ~g u~e r~u~ o[ ~e i~o~. ~e to~ ~t~'s CPRA ~d ~IA ~tf~ z ~viro~t wh~e staff ~ve m ~ ~ a hi# d~ ~ ~tmy fr~ ~ ~t~ wi~ unh~tcd l~al r~ur~. F~cr, ~ invo~vc~nt of h~crs fotlowing up on ~uests ~d ~rea~ of law- suits b~u~t a i~! f~s to what ~uld o~crwi~ bca ~finc response to a public requc~.'A struc~ral cvaluati~ of ~iifo~ia's toba~o conwol p~grammc conducted by the CDC* found ~at "the demands of the tobacco indust~ on ~c staffofTCS for responding to rcqu~ts for documents amount to a tax-payer subsidy of ~c industry as it tries to protect tts intcr~ts at ~c ~pcnse of the health of ~lifomia" (p 17). The information obtained ~rough the CP~ a~ons permits pro-tobacco groups to quote documents describing tobacco control projects out of context, and to focus on personnel ~d budget info~ation to mislead • c press and ~c public as to how Proposition 99 funds are used. As an example of the misinfo~ation ~d disto~ion campaign, CSR issued a press release in April 1993 listing I0 projects ~at ~cy ridiculed as wasteful of t~paycrs' money,s°~st The 10 projects on the list were chosen out of approximately 450 projects f~dcd ~rough the LLAs or through • e CDHS competitive grant system. The list includes such projects as participation in the University of ~lifomia (Davis) picnic day parade; a workshop for you~ in Kings County • at included a pool party; a smoke-free baby shower in Solano County; exercise classes for smokers in Alpine County; a "BreaSt easy, smoke-free" walk through Yosemite National Park, sponsored by Mariposa County; and ~e sponsorship of a racing car by ~e Bay Area ~nccr Coalition. Although CSR focused on projects ~at appeared frivolous, ~cse specific projects were positively evaluated by both participants ~d staff in getting ~e tobacco control message across, mainly to ~eenagers.~'' Ironically, ~c strcngth of ~e response from pro-tobacco groups might serve ro indicate the effectiveness of ~csc Proposition 99 funded progr~es. The CSR press release received wide coverage, ~d TCS and LLA staff had to dedicate several hours t0 respond to the release.'*~s Before being used in ~e press release, ~e information obtained by CPRA requests was Mso used in a b~chur¢ sent to voters in Massachusetts*~ in Autu~ 1992 as part of the tobacco indust~ campaign against Question 1 (Massachusetts' tobacco t~ initiative, similar to P~position 99). The br~hurc portrayed ~lifomia's tobac~ education efforts as "frivolous programs and bureaucratic waste." All ~c projects chosen in ~e brochure arc m~fioned in CSR's pre,s release. Other indust~ ~paign acovitlcs to defeat Q~stion I a~ incl~ed ~erai public re~rds requests to ~c ~ssachusctts H~I~ Dcpa~ment's O~ce for N~s~ng ~d H~l~. Simi~r to ~lifomm, the r~s~ were for a wide range TI14131746
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~1 FOIA ~. ~e m~ of using CP~ ~ues~ a~ h~ching a ~s~f~adon ~pai~ a~ pi~ of an st~te~ ~ dish, it P~pos,t~n 99 f~d~ p~e~s, and is similar to o~er disinfo~ation ~pai~s launched by the tobaccG industry.*~ This tactic, together with substantial ~mp~ contributions to legislators,~ or~ising smokers' ri~ts groups,t~ and ~e me of front groups and law and public relation fi~st~ in ~lifornia's 1o~1 and state poli~ making have been combined into a successful strategy to seriously compro- mise the tobacco control p~g~e.'s Most impo~ant, ~is info~ation was being ga~ered in anticipation of the hearings for r~u~orisatioa of Proposition 99 expendi- tures, held in 1994.~ Even though the voters enacted Proposition 99 with specific allocations to tobacco control, ~e legislature must enact au~orising and appropriating legislation to actually spend ~e money every few years. This authorising legislation has provided the tobacco industry ~ oppor~umties to per- suade legislators to reduce the tobacco control funding below ~at mandated by the voters in Proposition 99) ~e information obtained through ~e CP~ was used in the 1994 debate over authorising legislation for Prop- osition 9% Assembly Bill 816 (AB 816, sponsored by assemblyman Phil 1senberg, D- Sacramento). A list wi~ nine health education and eight research projects (not discussed here) was produced by assemblyman Isenberg's officeTM and distributed to legislators and the media during the hearings on the re-auth- orisation bill in a successful effort to discredit the tobacco research and health education programmes and to justify significant reduc- tions in its funding. In addition, there are signs that CPRA requests witi also play a role in a potential tobacco industry attempt to weaken or elim- inate ~lifornia's Assembly 8ill 13 (AB 13). AB 13, which became effective on I January 1995, mandated statewide restricuons on work- place smoking, wi~ some exemptions, but left implementation and enforcement to focal government units. As o~ summer 1995, several counties had received CPRA based requests for all materials related to the implementation and enforcement ofAB 13.:t':" It is not clear at present how ~e tobacco industry will use this information. AN APPROPRIATE RESPONSE AS the tobacco industry's campaign to access documents related to tobacco control strategies intensifies, public health agencies need to develop a mechanism to systematically docu- ment and exchange information about these requests and the requesters, as well as to make sure all those involved are aware of depart- mmtal policies to deal with such requests. The TCS and LLAs atterapt to reslXmd to these requests with minimal disruptmn of their a~tiv~ l~ a~ki~g tilat Ceques~ be m writing, carefully documenting all CPRA related matters, and not allowing thts campaign to halt their efforts to promote a healthier environ- m. ent. One approach to deal with pro-tobacco CPRA requests such as these is to expose the r, equest to the public, making use of the media, as exemplified by the events in Contra Co County. The CPRA letter to the Contra Costa County tobacco control project {TCP) was signed by Marietta Stuart. The TCP director answered that to comply with the request would take ton much staff time and it would be disruptive to the LLA's work. She suggested scheduling a time for Ms. Stuart to come m and use the copy machine and to respect the documents.:" In response, TCP received a call from the law firm Bell and Hiltachk, repre- senting CSR, stating that they would send someone with a copy machine to photocopy the documents. When Glenn Williams, CSR employee, arrived at TCP with a copier, the TCP director was waiting with the med~a to denounce what she perceived as harassment by pro-tobacco groups. The /tmemcan Smokers' .~ournal covered the event, stating that Glena-x Williams was "simply looking fo.r answers," without mentioning that Williams was a CSP, employee.:t" The incident received wide cover- age in ~__e press and requests to the LLA stopped.;:-"" Another important approach ~s to continue with efforts such as the information exchange conference that took place in San Francisco m May 1994 sponsored by ASSIST, the American Cancer Society, and the California Department of Health Services At the Con- ference, LLA and ASSIST staff had the opportunity to exchange information and strategies to promote tobacc¢~ control and counteract the tobacco industry attempts to hinder public health efforts. Finally, state and federal level agencies should make an effort to recover some of the costs associated with responding to these large requests, including copying expenses and em- ployee time. When permitted b.v the Public Records law, time spent should be recorded so the state can be reimbursed. Esen where reimbursement for time ts not allowed, as m California~ it would be useful to have a record of how much the tobacco mdustry's public records requests are costing taxpayers LIMITATIONS Since this ts an observational rather than experimental study, the data used m this studl do not allow for definite causal relationships be established. The only records were the CPRA files at TCS, whmh requests and some of the responses by TCS to requesters. There ~s a underestimating the ramifications increase of CPRA requests directed to and how they_ affected its activities. TI14131747
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substantml m-notmt ot- time was ~t ~th m ~sw~ ~ r~ ~ ~ inte~l ~n~, ~re is ~ ~ ~ of ~ ~ fr~ ~ ~ ~i~ ~ ~ by all of ~ose ~t~e~. ~ere may be several o~ instates where public re~r~ acts were us~ by ~e tobac~ industw interests at ~e fe~, state, and local levels. However, an ~alyfis of all such reque~m to ~I gover~ent agencies was be- yond ~e s~pe of ~is study. Fuw~er res~rch in thi~ is needed, with more cont~lled me~odology ~d ~ta col- lection me~ods. As public h~l~ professionals become aware of ~e use of ~e freedom of info~afion laws as a dis~ption strate~, such requests should be carefully do~mented to clarify ~e links between ~e requests and attempts to interfere wi~ tobacco control program. CONCLUSIONS This systematic disruption of tobacco control programmcs through the use of public records acts is not exclusive to California. The ap- parent increase in FOIA related activities in other states and at the federal level resembles an organiscd campaigrt, rather than an isolated California phcnomenons suggesting that the tobacco industry is using public records acts as another tactic in its strategy to derail public hcalth efforts to control tobacco use. Public hcahh professionals working on tobacco control, both in policy and health education arenas, should anticipate such requests. They must bc prepared to answer them with careful attention to the law. They should bc briefed in the proper handling c~f freedom of information act requests. High level administrative and legal offices within the health department (or other relevant agency) should be prepared to respond to tobacco industry requests, while protecting the in- tegrity of government programmcs and employees. Summary reports and other public documents should be used when possible to defer non-specific requests for "all" do- cuments. Public hcahh authorities must bc prepared to respond to public rclauons campaigns based on out-of-context repre- sentations of the material obtained through these requests. Public records requests arc often so extreme that complying with them can be made a media event, which may discourage tobacco interests from further use of this tactic. As more and more states attempt to deal with the epidemic of tobacco induced diseases, we anticipate that efforts by the tobacco industry to use state and federal freedom of information acts to disrupt this activity will intensify. Access to public records is every citizen's ng,ht. Unfo~ttmately, it appears that the tobacco industry- is abusing this right and turning it into a weapon to complicate and discourage public health activities. This Im~ CA.-tI02I W'e ~ ~ 1,4~wmn, md I~/~t~o~ Aa Dc~m~( of He, lib ~nd Hum~ 40~cc of Info~tmn Pract~cc~. The lnlormatmn Sa~mcnto, ~: State Personnel ~rd, 5 ~1 DG, Kt~ KW, Fcllcn PG, Mozer MH, Niemever D R~cing ~n con~umptmn m ~hfom~a: op~nt of a statcw~d¢ an.-tobac~ mmpmgn. 6 P~erce IP, Evans N, Far~s AI, ¢t ~1 T~dcco Cah/orma: an ~h~llo~ o/ the l~acca control progru~r, Health S~ces. San Diego. ~nc~ Prevention and ~ntrol Program, On~xcrstty or ~lffornl~ at S~ 1~94. 7 US C~(cr~ for D~scasc Conwoi ~nd Prcvcntmn. ~uat~on, Califorma', Pro~s,t=on 9~undtd t~,,,, control program. Rt~kvdl¢. Maryland Pubhc Health So.ice, ~ntcrs for Disease Control and Prevemmn. 1994 8 Begay ME, T~ynor ,MP. Gl~tz SA. The t=dtght grams and t~acco ~ndusl~v pnht~cal ~rpendllure~ m 1993 S~ F~cisco: institute for Hcal~ Pohcv Studies. Unwcrstty of ~liforma ~t San F~ncisco, 1994. 9 Beoy ME, T~ynor MP, Gl~tz SA. The tobacco industry. s~tc ~htics, ~nd tobatco eduction in ~hforma. Public Health 1993; g] 121~21. tO ~lifo~ia Wellness Foundanon. Cah/orma strategic on the /utur~ of toba,¢,, control. CMffomm Wcllnes~ Fo~dation, 1993 II Cahforma Smoke-Frr¢ Cmts Bulletin ~lifornia: I~4, zs~uc 4 12 ~hfo~tans for Smokers" R~ghts Tht CSR Repott, zutumn 13 ~lifomtans for Smokcr~ Rtghts. Le.c, ~c,u w CSR mtmber~, 14 Samuels B, Glum SA The poht~cs of Io~1 tobacco ffA~A 1991 ; 2~ 21 ItS7 15 Tr~ynor MP~ Bcgay ME, Glantz SA. The new tndust~ strategy to prc~ ent Io~1 tobacco control. 199}, 270" 47~o. Ib Lundgrcn E. Letter wut t,, R~ Ro.nold~ madu#e h~t. 17 Shapiro E, Wartzm~n R Tobacco lobby finds ~ts influence wamng as health tssu¢ grows, ~'~l[ Street 7ournal, March 1994: Ah A5 t8 Fleshcr D. A malch made m heavcn? York Dady R¢.,rd. 2 J~uary L994 1~ Tobacco Edu~;lon Overs;ght ~mm;t~ce T~ra~d 199~1905, Sacramcm,,. CA TEOC, 1o03 Cah[orman~" u,e ,~[ t.ba.~,, Sacramento. CA lqOl 21 ~ltto~ta Dep~mem ~1 Health Services and the first fi/~ttn moufh~ o[ Cah/orma'~ tobacco toner,,/ program Sacramento. CA CDH5 and CDE, 22 ~lifo~ta Dcpar~ent of Health Scw~ccs and ~hforma Deponent of Educa¢~on, T~,ard a tobacc~/r,., Cali/orn,o'l to~tco co,,tr,,I program CDHS and CDE m~l Refo~ Dw~ston. 1094 24 Aguma~a S, Macdonald HR. Traynor M. Begav M, Glantz SA. Undtrmmi~ ~pular $~trnmenr : lo~¢~o Indmtr~ of ~hfom;a at San Fr~ct~, 1995. CDHS/TCS, 26 Pncrce ]P, Gdpin E. Bums DM. ¢t al D~s ~ncc f~ ~hforna~ 7.4.MA l~l, Z66:315~8 27 G~rd B. Letter to 5an ~rlo~ Ci[y ~uncd Member Paul S;vlcv. 199~. 28 Kneppta~ P Memo to Rowed ~mpanx ~crzc~n ~ ~ C~ lessttute Fma~al $fa1¢~, 31 M~rcU ~ ~tl~ te ~1¢¢~ Bd, TCSICDHS TI14131748
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P~¢ Htah~ 1~5; g$: 1212-7. ~ Umtcd Sm~n A~ of~ ~i~tton. Kt~y ~h[omta. ~a~ ~rs" ~o~al, 2rid 1~3:7 S~m. Mcmo~dm. ~cnm, ~tifo~ia, 1993. ~ Intc~t~ w~ ~ml R~s~ll. Toba~o ~trol ~ltfomt= Depa~ of H~I~ 5~1~, 41 l~tc~l~ ~ Paul ~pta~ ~d B¢~y 1993. 42 Sid~ ~L. ~vm~on & Burling I~er to L L~e~, FO [A ~ator at ~c O~ of Public A~trs, for Disuse ~at~t. Washin~on, DC) 43 Rupp JP. ~,in~on & Burl~g Itttcr to D ~risu~. fxccdom of info~ation o~r at ~c O~cc o~ Smoking ~d HealS, ~te~ for Disease ~ntml. Washin~on, DC, 19~. ~ Rupp JP ~vm~on & Burling I¢~er m R Ro~s, dire~or o[ freedom of info~adon division, US Depa~t o~ Heal~ ~d Hum~ Servtces. ~a$hington, DC, 198~ 45 ~ JS. Hog~ & Hanson letter to freedom of m- for~tton o~cer at US Public H~I~ Servtce. Washington, D~ 1987. 46 Cilm~ AJ. N~ J Cil~n FOIA Requ~t letter to US Depam~t of H~I~ ~d H~m Semite,. F~cisco, ~lifo~ia, t989. 47 Stmh~ RG. Jon~ Day, R~vis & Po~c le~er xo D Be~e~ at ~e Freedom of Info~atton O~cc of ~e Centc~ for Disuse ~ntrol. Clcvel~d, Ohio, 1987. ~ Eisem~ D. F~eral docm~t ret~eval le~er to Berre~, freedom of ~o~atton spectalist at ~e ~nters for Disease Consul Washin~on, DC, 1988 49 Nuss A. Fcd~a[ d~ment retrieval le~cr to D freedom of ~fo~ation specialist at ~¢ US Public Semite Washm~on, DC, 1989. 50 Nuss A. Federal Do~ment Remevai le~er to ~r~stt~, fr~dom of infomtton specialist at ~e ~e US ~biic Heal~ So.ice. Washin~on, DC, 1988. 51 O'Bfien SB, Washin~on Serwce Burred letter to R Robe.s, freedom of info~atton o~cer at ~e US Depa~t of Heal~ ~d Hum~ Sewic~. Washin~on, DC, 1988. 52 Rushy PB. The SRC Group lnc letter to D Be~e~ at ~nters for Disease ~nt~l. Washm~on, DC, 1987, 5~ Small PS FO[ Sewices lnco~rated letter to ~e O~ce on Smoking and H~I~, Rockvtlle, .Maryland, 1089 ~4 Dupptn ~. ~e Tobacco ]nstttute letter to D Be~e~, fr~dom of relocation s~ctali~t at ~c ~nters for Dtsca*e ~nt~]. Wathin~on, OC, 1988. T!14131749
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