Elsevier

The Lancet

Volume 363, Issue 9423, 29 May 2004, Pages 1812-1819
The Lancet

Public Health
Big tobacco is watching: British American Tobacco's surveillance and information concealment at the Guildford depository

https://doi.org/10.1016/S0140-6736(04)16309-5Get rights and content

Summary

The 1998 State of Minnesota legal settlement with the tobacco industry required British American Tobacco (BAT) to provide public access to the 8 million pages housed in its document depository located near Guildford, UK, and to any company documents sent to the Minnesota depository. While the Minnesota depository is managed by an independent third party, BAT's Guildford depository is run by the company itself. Starkly different from the Minnesota depository, at the Guildford depository it is extraordinarily more difficult to access, search, and obtain requested documents. BAT's approach to running the Guildford depository, in our view, amounts to concealing what is supposed to be public information. Newly produced BAT documents from subsequent litigation, dating from 1996 to 2001 disclose the company's efforts to gather intelligence on visitors and their work. We believe that BAT has acted to make access to information more difficult by delaying document production requested by public visitors and refusing to supply requested documents in an electronic format despite, in the company's own words, the establishment of “big time imaging” capabilities at the Guildford depository. During testimony in 2000, then BAT Chairman, Martin Broughton stated to the UK House of Commons Health Select Committee that the scanning and subsequent placement of the Guildford collection online “would be an extreme effort for absolutely no purpose whatsoever”, stating that “there is no indication to me that serious researchers are showing any interest in the papers …”. New documents show that not only did the company recognise the importance of research undertaken by visitors, but also invested substantial resources and undertook numerous scanning projects during that time. The vulnerability of this important resource is demonstrated by the decreased number of files listed on the electronic database and the inadvertent deletion of an audio tape housed at the depository. With regard to intelligence gathering, BAT's law firm reported to BAT on the daily activities of depository visitors. Despite assurances to the contrary, these depository visitor reports show that BAT apparently tracked the database searches of a visitor. The company also tracked the physical movement of visitors and, in at least one instance, observed and noted the personal mobile phone use of a visitor. These activities raise ethical issues about BAT and/or its solicitors observing the work of lawyers and researchers representing health and government bodies. Given this new evidence, we assert that BAT is incapable of operating its depository in the spirit of the Minnesota settlement and should, therefore, be divorced from its operation. Accordingly, we recommend that the company provide its entire document collection electronically to interested parties thus allowing greater access to the public-health community as has been done in the USA.

Introduction

The 1998 State of Minnesota settlement1 with the tobacco industry mandated that, for 10 years, the tobacco companies provide public access to the millions of pages of their documents housed in two document depositories that were set up during the Minnesota trial. These documents revolutionised tobacco control by showing the internal workings of the cigarette manufacturers. According to the terms of the Minnesota settlement,1 stipulated public access to the documents differed substantially between the US based defendants and the UK based defendant, British American Tobacco (BAT). Philip Morris, RJ Reynolds, Brown and Williamson, Lorillard, The US Tobacco Institute, and the Council for Tobacco Research had their public document depository administered by an independent third-party paralegal firm, in Minneapolis, MN, USA2, known as the Minnesota Tobacco Document Depository. BAT, on the other hand, was not required to manage its depository through a third-party administrator, but rather the company itself would run the daily operations of a separate depository located near Guildford, UK, often referred to as the Guildford depository.3

In June 2000, after the Guildford depository had been open to the public for over a year, the UK House of Commons Health Select Committee stated in its Second Report on the Tobacco Industry and the Health Risks of Smoking4 that, “BAT is failing to enter into the spirit of the Minnesota agreement”. 5 years after the opening of the Guildford depository, it seems to the authors that this is still the case. BAT appears to have exploited the terms of the operating instructions of the depositories set out by the Minnesota court. The company delayed the opening of its depository until February 22, 1999, almost a year after the Minnesota depository opened to the public. Lawyers representing the State of Minnesota in fact urged BAT to live up to its legal obligation to permit public access to the depository.5 BAT stated that their solicitors needed additional time for review of privileged, trade secret, or personal material in the documents produced despite the fact that they had access to the entire collection for at least 3 years during the litigation.6

After finally opening its doors to the public, the Guildford depository was, and continues to be, more difficult to access and search than the Minnesota depository.4, 7, 8, 9 Unlike the Minnesota depository, the BAT documents are indexed and searchable only by file rather than by document making it impossible to undertake a computer search for individual documents within the collection. Critically important is that the lag time between requesting and obtaining photocopies of the BAT documents is exponentially longer than that at Minnesota. One can obtain photocopies of a document request of 1 million pages within a month from the Minnesota depository, while this same request has taken nearly a year at the Guildford depository. Even access to BAT's building is more problematic. The Guildford depository is only open for 6 hours each day; the Minnesota depository is open for 10 hours each day. Additionally, BAT currently allows only two groups in the depository at one time, whereas the Minnesota depository has no restriction on the number of visitors on a space available basis.

However, the central issue is electronic access. The settling US defendants put the majority of their documents online,10 while BAT did not. In fact, BAT will not produce documents electronically, despite multiple requests from various parties. For example, we requested electronic copies of a near 1 million page request11 and were denied our request and told by BAT's legal counsel that they are not legally obligated to do so.12 Additionally, BAT's then Chairman, Martin Broughton told the UK Health Select Committee in January, 2000, that the company had scanned only 350 000 pages of the estimated 8 million pages in the collection and that the imaging of “the other seven and half [million] would just be filling up the Internet to no purpose”.13

We present a critical examination of the procedures carried out by BAT and its law firm, Lovells (formerly Lovell White Durrant) in the operation of the Guildford depository. In our view, BAT's efforts are tantamount to concealing what is supposed to be public information. We show BAT monitored the material searches and daily activities undertaken by researchers and litigants visiting its public depository. It is reasonable for the tobacco companies to monitor visitor's document requests for viewing and photocopying in order to maintain the integrity of the document collections. Unlike the Minnesota depository, however, visitors to the Guildford depository are not told of this practice when they sign the admission form, the Guildford Depository Terms for Public Access. We also report an instance where a visitor's search terms used to search the electronic file index to the Guildford collection were monitored by BAT. This practice is both significant and disturbing especially if carried out with any regularity. The Minnesota depository does not track visitors' electronic searches. Monitoring search terms used to navigate through documents may be a breach of ethical conduct. Similar to the operation of a library, the depositories are tasked with surveying the integrity of the document collection rather than monitoring academic or journalistic research.

We also show that BAT ranked files at Guildford for their “sensitivity”, which often reflected possible embarrassment or damage to the company, rather than relevance for protecting legitimate trade secrets. In one case, a document containing handwritten alterations relating to the targeting of low income, illiterate 16 year olds was classified as “sensitive”.

Finally, in testimony before the UK Health Select Committee in 2000, Martin Broughton stated that only a small fraction of the entire collection housed at the Guildford depository had been scanned and was in the company's possession. BAT has stated that it has not electronically imaged its entire collection at the Guildford depository due to the difficulty of scanning such a large volume and the complexity of the collection's file index as it is currently formatted.14 We report new evidence of BAT's large scanning budgets, proposals, and the company's employment of a large scanning staff. We believe that these budgets and staff indicate that during 1998 and 1999 BAT had the capability to scan millions of pages of the Guildford collection. Further, in our view, BAT has acted to impede access to the public documents at Guildford by denying multiple requests for electronic copies of the documents; thus, in effect sequestering the collection from all but a small number of researchers and others with the resources to travel to the UK and devote considerable time and effort to search the collection.

Section snippets

Methods

The origin and structure of the two major tobacco industry document depositories arising out of the litigation settlement in Minnesota have been previously described.7, 8, 9, 15, 16 BAT documents housed in the Guildford depository are dated from the company's origin in the early 1900s up to 1995. However, in accordance with the terms of the Minnesota settlement, new BAT documents from post-settlement smoking and health litigation in the USA are sent to the Minnesota depository, and not to the

Behind-the-scenes surveillance at Guildford

When reviewing documents at both of the tobacco industry's depositories, some level of surveillance is expected to ensure that the integrity of the collection is maintained. At the Minnesota depository, each page housed within a box is verified as remaining after a visitor returns the box. The Minnesota depository does not have video surveillance systems in its public review rooms. At the Guildford depository, however, readily observed video cameras are installed in the document review areas

Discussion

We describe what, in our view, constitutes BAT's efforts to conceal information at its Guildford depository and to monitor the activities of public visitors through behind-the-scenes surveillance. BAT's testimony given to the UK Health Select Committee claimed that scanning and subsequent placement of the Guildford collection online “would be an extreme effort for absolutely no purpose whatsoever”.33 However, the company internally recognised the importance of research undertaken by visitors,

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      At their sole expense, the settling tobacco industry defendants were obligated by the Minnesota settlement to allow public access to the litigation depositories for 10 years.13 After the Guildford depository had been open to the public for only a year, BAT's public relations firm reported to the company that its depository was a “skeleton” in the company's closet,14 in part because of the public airing of its internal documents relating to cigarette smuggling, price fixing, control of scientific research by attorneys, and political attacks against the World Health Organization (WHO).15 When the depositories were opened to the public in May 1998 (Minnesota) and February 1999 (Guildford), approximately 35 million pages of once-secret internal documents were available for public review.3

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