The Tobacco Industry and the California Public Records Act

One final tactic strategically used by the tobacco industry to impede state and local tobacco control operations involved freedom of information

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acts. These laws, created to insure that citizenry had access to information collected by their governments, were used as a tool to slow the work of tobacco control offices. The tobacco industry set up a complex web of law firms and smokers' rights groups to submit requests for information under the California Public Records Act (figure 12).

DHS's Tobacco Control Section (TCS) received many more requests for public information than other seemingly controversial state-level health programs, such as AIDS and alcohol and drug programs or the HIV prevention program at the California Department of Education. In fact, TCS was the only health program receiving any requests; between 1991 and 1993, there were fifty-nine requests for 371 documents.^[52] For example, on April 4, 1991, Mark Helm of the Los Angeles law firm Munger, Tolles & Olson wrote to the Tobacco Control Section to request

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“all public records (including all correspondence, memoranda, and other documents) dated on or after November 1, 1988” related to the baseline survey, innovative programs, the independent evaluation, the information campaign, the master plan, and the activities of TEOC. The request appears to have simply replicated the language of Assembly Bill 75.^[53] The firm was working in 1990 as Philip Morris's California counsel.^[54] From April to June 1991, the freedom of information requests came from the Nielsen, Merksamer law firm, which handled much of the tobacco industry's legal work in California.

This tactic of using the freedom of information act as a form of harassment was to continue throughout the life of the program and eventually included requests to the health departments in the larger counties and the California Department of Education.^[52] Program advocates, however, eventually understood how to handle such requests with minimal disruption to their operations: by requiring requests in writing and by assessing reasonable photocopying charges on the requesting parties.

Some of the LLAs responded to the requests by using them to call attention to the tobacco industry. In 1993, for example, the Contra Costa County LLA received a public records act request from a Marietta Stuart. The director replied by saying that complying with the request would disrupt the LLA's work and suggested that Stuart come in personally to inspect the documents and make photocopies. In response, the LLA received a call from the law firm Bell and Hiltachk, representing Californians for Smokers' Rights; the firm scheduled a time for someone to come with a copy machine to photocopy the documents. When Glenn Williams, a Californians for Smokers' Rights employee, arrived with a copier, the LLA director was waiting with the media to denounce what she perceived as harassment by pro-tobacco groups. The incident received wide coverage in the press, and requests to the LLA stopped.

The tobacco industry recognized that the public health community was getting more sophisticated in dealing with its tactics. For example, when Stratton, Reiter, Dupree & Durante was preparing its report for RJ Reynolds, one of the complaints in the report was the effectiveness with which TCS had dealt with records act requests: “TCS's heightened concern over the status of its '91-'92 Fiscal Budget, plus a profound screening process to ward off tobacco industry access to public documents, presented significant barriers to reviewing individual grants and county tobacco control plans. Thus a significant element of this research project involved creating access points to interviews and publications

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among TCS staff, state government leads, and unsuspecting program contractors.”^[55] In addition to seeking to disrupt policy making by state and local health departments working for tobacco control, the industry used much of the information obtained through the California Public Records Act in its propaganda. In the upcoming legislative battles over Proposition 99 reauthorization, the information was to emerge in the industry's attacks on innovative tobacco control projects as a waste of money.