BAT
233. Under the Consent Judgement settling the Minnesota
proceedings, British American Tobacco Limited was required to
maintain and operate a depository at Guildford.[400]
BAT Industries plc and British-American Tobacco Company Limited
were only joined in the litigation in the USA at a late stage.[401]
As a consequence of this factor they were only able to comply
with the timetable set out in the Minnesota action by stocking
the Guildford Depository with all "potentially relevant files"
rather than selecting and indexing individual relevant documents.
The terms of the agreement also excluded public access to "privileged
documents and Category II trade secret documents (relating to
blends and formulae)".[402]
The order stipulated that BAT should make the depository accessible
to the US plaintiffs and their lawyers and should be open to the
public for a period of 10 years from February 1998. The Guildford
Depository finally opened to the public in February 1999. In the
interim, lawyers to the plaintiffs had access to the documents
and had requested copies of 350,000 pages many of which they have
subsequently placed on the internet.
234. We wanted to explore the extent to which BAT
had actually facilitated public access to the Guildford Depository.
Following our visit there, and having assessed a number of oral
and written submissions, we found a number of areas in which BAT
had placed obstacles in the way of researchers and potential litigants
examining material in the Guildford Depository and denied what
we would consider to be reasonable access. Whilst the Depository
was open from 8am to 8pm for the lawyers and plaintiffs, the opening
hours to the public are restricted to 10am to 4pm: the Minneapolis
Depository is open from 8am to 8pm.[403]
Since the Depository opened to the public, BAT has restricted
access to "one organization at a time" apparently because
of the strain imposed on its resources by the number of requests
for copies.[404]
From this single organization a maximum of six visitors are permitted.[405]
Ms Judith Watt, the former Executive Director of the Victoria
Smoking and Health Program in Australia, told us that access to
the Depository "has grown significantly more difficult as
time has gone by".[406]
She forwarded to us correspondence indicating a number of delays
and misunderstandings in granting her and her co-researchers reasonable
access.
235. BAT argued that the Depository had only been
visited on 133 of the 220 days it had been open and that "only
one British organization has visited". They suggested that
"none of the visitors has been an academic who might have
a research interest".[407]
In oral evidence Mr Broughton commented that they had not had
"one single scientist" visiting.[408]
Establishing the reliability of this statement might, however,
prove difficult since, according to Ms Watt, the Visitors' Book
has now been removed.[409]
236. We find it a matter of concern that BAT takes
such an interest in those organizations using the Depository.
We do not think it is appropriate for them to sift through the
individuals wishing to examine public access materials, working
out who is a scientist, who is an academic, who is British or
who is a potential litigant. Their limit of a single organization
per day, imposed apparently because of the strain on resources
caused by multiple group visits, seems to us entirely unreasonable.
BAT is a wealthy company with large resources well capable of
using them to facilitate greater access to the Guildford papers.
The true nature of the priority it attaches to the Guildford site
can perhaps be gauged from the fact that the Chairman of BAT told
us he had "never actually been taken round the depository".
[410]
237. We asked a professional archivist, Dr Caroline
Shenton, formerly Senior Archivist at the Public Record Office,
to accompany us to the Guildford Depository and at our request
she submitted a report on her findings. This was extremely critical
of the current arrangements and proposed a number of reforms which
we hope BAT will act on. She told us "there is no archival
reason why 12 reading room places could not be provided for 12
different visitors" and that "the constraints imposed
on the number of visitors allowed to book into the Depository
on a single day relate to the amount of staff and equipment BAT
employs at the Depository in order to retrieve documents, and
not to any issues of handling and preserving the documents".[411]
She also noted that none of the nine staff employed at Guildford
were trained in archives, and found it "surprising"
that the records manager was unqualified.[412]
238. We examined for ourselves the indexes to the
files and found that these gave no useful indication of the material
contained in the eight million pages stored at Guildford. For
example, a search for "disease" yielded only sixty nine
entries. This was because only the title of the file was indexed
and, as we discovered, this often gave absolutely no indication
of the contents.[413]
As Dr Bill O'Neill, Scientific Advisor to the BMA, put it: "What
does one do when faced with a warehouse of documents that are
not adequately indexed?"[414]
Dr Shenton suggested that it would be helpful if the index, such
as it was, could be made available on the internet. In her view
this would "require relatively little time or money".[415]
The issue of making documents available on the internet was one
we pursued with Mr Broughton. He felt that putting on the internet
the remaining "seven and three-quarter million pieces of
paper would be an extreme effort for absolutely no purpose whatsoever".
Nevertheless, he promised to look at our recommendations in this
area.[416]
239. When we visited Guildford, we learned that all
pages of documents which were requested for photocopy were first
scanned by BAT and sent to their legal department to check for
privileged or trade secret information. Once approved, a paper
copy is forwarded to the person requesting copies.[417]
Dr Shenton noted that there was, therefore, "a growing corpus
of checked scanned images (or possibly electronic text if the
scanning has been performed by optical character recognition)
available within BAT which could be made available online".[418]
240. We believe that the balance of evidence suggests
that BAT currently attaches no priority to facilitating public
access to material held in Guildford. Dr Yach of the WHO suggested
that, for the sum of $2-4 million, BAT could scan all its documents
and put them on the internet. This is the course of action some
of the American companies have taken, sometimes on cost grounds,
in that placing material on the internet reduces the staff time
required making it available in photocopied form.[419]
241. We believe that a commitment on the part
of BAT to put all non-privileged documents held at Guildford on
the internet, preferably in a searchable form, would indicate
that it was serious in its attempts to "start the new millennium
with a positive approach" to bringing an end to the allegations
and arguments which have characterised relationships between public
health authorities and the tobacco companies.[420]
At the very least, we believe BAT should automatically put all
non-privileged documents which it has already scanned, or which
it scans in the future, on the internet. Should BAT find this
simple, and relatively cheap, option beyond it, the obvious inference
should be drawn that they are resisting any attempts to have wider
public access to this material. We regard BAT's limits of one
organization, and a maximum of six visitors, per day to be indefensible.
It seems to us that BAT is failing to enter into the spirit of
the Minnesota agreement. Finally, we think that BAT should employ
professionally qualified staff and up to date computers at Guildford
- in this respect the contrast between the company's research
and development facilities, with their highly qualified staff
and state of the art equipment which we saw at Southampton, and
the archive, with its untrained staff and slow computers, was
stark.
Gallaher and Imperial
242. We also wanted to explore the willingness of
the major UK companies to place its archive material relating
to the companies' knowledge of the health risks of smoking in
the public domain. We asked both Mr Peter Wilson of Gallaher and
Mr Gareth Davis of Imperial, what the attitude of their companies
would be to such a request. Both companies have been obliged in
the recent past to make available substantial quantities of internal
documents under the discovery process as part of the recent failed
UK class action against the companies and both have millions of
pages of material in CD-ROM form.
243. Mr Wilson of Gallaher promised the Committee
that he would explore the possibility of making this documentation
available on the internet.[421]
In a subsequent written memorandum he indicated that Gallaher
had agreed to put this material in the public domain and would
be placing the health related documents on its company website.
We very much welcome the approach that Gallaher has taken to
our request that it should make its archival material on the health
risks of smoking publicly accessible. We believe that this represents
a more mature response to the public health issues than has been
evinced by UK companies in the past and that Gallaher should be
commended for its responsible approach in this area.
244. In contrast to the openness of Gallaher came
the much more disappointing response of Imperial. During our hearings
Mr Gareth Davis promised to look at the possibility of making
electronically available the equivalent documents for Imperial.
But in the end Imperial has not complied with our wishes that
such material should be freely available in the public domain.
Correspondence with Imperial's lawyers indicated that they would
only release material for the purposes of the Committee's own
research. Given the fact that the material they produced was indexed
in a fairly meaningless way, that the text was not searchable,
and that the documents concerned ran to hundreds of thousands
of pages this offer was, effectively, worthless. Imperial submitted
a file index of all their documents, and suggested that the Committee
might select particular documents for examination. Again, these
files were not indexed in any useful way. For example, files were
listed by the name of the recipient and sender rather than by
subject matter.
245. In the end, Mr Gareth Davis's promise to co-operate
with the Committee in what ways he could proved worthless. We
believe that Imperial have adopted a reactionary and defensive
posture. Their refusal to place in the public domain documents
which may have a real bearing on the public health community's
knowledge of the health risks of smoking seems to us lamentable.
According to Mr Martyn Day, who did at one time have access to
all the documentation, Imperial at one stage adopted an even more
unhelpful approach:
"one of the rather disturbing
things is that somebody who came into Imperial in the late 1980s
destroyed a lot of documents, had a big fire, so there may be
a lot of fire dust on the documents ...."[422]
246. We agree with Mr Day that it would be "to
everybody's advantage" if all the UK tobacco documents came
into the open.[423]
It has been a consistent theme of our report that for too long
the UK tobacco companies have operated in a totally artificial
environment, where they have been able to deny the truth about
the health risks of smoking while Government has failed to take
responsibility to regulate the product. It might be felt in some
quarters that it was now too late to take regulatory issues seriously.
After all, the tobacco companies themselves make much of the fact
that smokers have received a mass of information, both from public
health bodies and the media, to the effect that smoking is an
extremely dangerous activity. From this they conclude that smokers
who persist in smoking are making an informed choice.
247. Laying aside the arguments we have put forward
that smoking is an addiction normally entered into in childhood
before an adult choice can be made, we believe it is important
to consider who is actually likely to die from tobacco today and
where the epidemic of tobacco deaths will strike most hard in
the future. In the West, as evidence we have cited earlier suggests,
nicotine addiction is increasingly the preserve of the poor and
least educated. In the future, as rates fall in the West, it is
to the developing world that the companies are turning. There
it would appear they will find a more congenial environment, with
populations less well informed of the risks, public health authorities
less well armed to counter these, and few restraints on the marketing,
sale and composition of tobacco products. Far from dying out,
the practice of smoking is actually fast-growing. Whilst one in
three adults worldwide currently smoke (about 1.1 billion) that
figure is predicted to rise to 1.6 billion by 2025.[424]
According to the World Bank, some 80% of these live in the low
and middle income countries. The figures of 60 million deaths
worldwide since 1950 will be dwarfed by the figures for the next
50 years if current trends continue and ten million people die
each year by 2030. The fact that, in terms of total mortality,
the tobacco epidemic has hardly begun makes strong and effective
counter measures on the part of public health authorities, in
our view, a moral necessity.
398 The defendants were Philip Morris Incorporated,
R J Reynolds Tobacco Company, Brown and Williamson Tobacco Corporation,
BAT Industries plc, Lorillard Tobacco Company, the American Tobacco
Company, Liggett Group Inc, the Council for Tobacco Research and
the Tobacco Institute. See Michael Ciresi et al, "Decades
of Deceit: Document Discovery in the Minnesota Tobacco Litigation",
William Mitchell Law Review, 1999:477 pp.477-566. Back
399
Q260. Back
400
Ev., p.338. Back
401
Ev., p.337. Back
402
Ev., p.338. Back
403
Ev., p.524. Back
404
Ev., pp.524-25. Back
405
Ev., p.351. Back
406
Ev., p.525. Back
407
Ev., p.337. Back
408
Q938. Back
409
Ev., p.636. Back
410
Q964. Back
411
Ev., p.542. Back
412
Ev., p.543. Back
413
Q936. Back
414
Q314. Back
415
Ev., p.543. Back
416
Q942. Back
417
Ev., p.543. Back
418
Ev., p.543. Back
419
Q3268. Back
420
Q388. Back
421
QQ905-907; QQ924-27. Back
422
Q1239. Back
423
Q1225. Back
424
Curbing the Epidemic: Governments and the Economics of
Tobacco Control, 1999, p.13. Back
