Australia: Freedom of Information Requests
"Abusing" The Freedom of Information Act
In October 2011, The Sydney Morning Herald  reported that big tobacco was 'abusing' the Freedom of Information (FOI) process as part of the industry's fight against the Australian government's plain packaging push. The Australian Government Department of Health and Ageing had reportedly been "swamped" with 64 FOI requests relating to plain packaging, of which 53 were lodged by Big Tobacco.
"Designed to Tie Up Resources"
The Department's secretary Jane Halton told an Australian Senate committee hearing that the industry was inundating the government with FOI requests, in a move that was designed to "tie up resources":
- In July and August 2010, British American Tobacco Australia, BATA, lodged 17 detailed FOI requests with the department concerning plain packaging and related issues. Our initial estimate of processing these requests was over $1.47 million, based on the need to examine 5,265 files and make decisions on an estimated 81,791 documents. The department negotiated with BATA to reduce the scope of these requests and the associated charges over a five-month period. As part of this negotiation, BATA withdrew seven of the requests and reduced the scope of the remaining 10. This left 242 files and an estimated 13,137 documents to be processed.
- We issued a revised charges estimate of just over $367,000 in July 2011. BATA agreed to the charges estimate and paid the deposit—it sounds like buying a house—of $91,776. Given the large scale of the request, BATA also agreed to the request being processed in six tranches with 60 days processing time per tranche and to pay the charges in instalments of $45,888 per tranche, with a reconciliation when the last tranche was processed.
- The first five tranches were processed and payments made, but in November 2011 BATA withdrew the request of the final tranche, on which the department had already commenced preparatory work, and asked for a reconciliation to be done of the charges. The department has now undertaken that detailed reconciliation of its records in relation to the processing of these requests. Because of the large amount of duplication on the files and a smaller number of documents on which decisions had to be made and due to efficiencies in decision making as officers became more familiar with the documents, the final charge arrived at for the BATA 10 was $135,734.60. The department estimates the actual cost of processing the requests at over $643,000. The charges therefore represent only 21 per cent of the final costs. I should say that the net cost to the department is worth four staff who should have otherwise been working on population health issues.
- To summarise, processing the BATA 10 alone has tied up significant departmental resources to the tune of $643,000 over a period of up to 18 months. The charging regime, which I think I am on the record as being unhappy with, only allows around the 20 per cent we estimated—that is, 21 per cent—of that to be recovered. At the same time, and by way of context, I make the point that the department has had to handle some 47 other requests on tobacco, including negotiations with applicants, reviews and appeals to the Administrative Appeals Tribunal and the High Court.
- On indulgence, I want to raise one more matter, because again I think it is illustrative. It demonstrates basically how they are trying to keep us busy handling these requests. In June 2010, Philip Morris Ltd, PML, lodged FOI requests with six government agencies concerning 19 focus questions on tobacco plain packaging and related matters ...
- Again there was a lengthy negotiation over scope and costs, and a decision was made to release a number of documents in February 2011. PML requested an internal review of this request, which was completed in April 2011. They then appealed to the Administrative Appeals Tribunal. A hearing was scheduled for 4 November and significant work was done in the department to prepare for the appeal, including the release of some additional documents. They withdrew the case a week before the hearing, on 26 October. That is just to give you an indication of the costs and the tactics, which are basically designed to tie up departmental resources which we cannot cost recover. 
In a separate case, BATA took legal action in June 2011 against the Australian Government after the Department of Health and Ageing refused to reveal confidential legal advice written for it 16 years ago. BATA applied for the advice under FOI laws but was rebuffed. Lawyers for BATA told a Federal court that the legal advice, written in 1995, was needed in the current public debate about plain packaging in Australia.. BATA's case was unsuccessful.
Relevant TobaccoTactics Pages
This page is part of a series of pages in the Category: Plain Packaging in Australia:
- Julian Drape, Big tobacco 'abusing' FOI process: govt, Sydney Morning Herald 19 October 2011, accessed 1 December 2011
- Senate Community Affairs Legislation Committee, Estimates, 15 February 2012
- Pia Akerman, 'Court lifts smokes screen as big tobacco seeks Paul Keating papers', The Australian, 8 June 2011, accessed 15 December 2011
- Ellisa Hunt, 'Tobacco companies lose appeal in fight against plain packaging', Herald Sun, 23 August 2011, accessed 15 December 2011