APPENDIX 15
Memorandum by Judith Watt (TB 32)
This submission is made by Judith Watt, a British
citizen with expertise in smoking and health issues. From 1988
to 1995, she worked for the Health Education Authority as a Tobacco
Control Project Manager. From 1995 to early 1999, she was Executive
Director of the Victoria Smoking and Health Program in Australia.
She now resides in the UK and is working on a number of tobacco
control projects.
EXECUTIVE SUMMARY
As part of the settlement of a court action
by the Minnesota Attorney General against all major tobacco companies
operating in the United States, BAT Industries plc (the parent
company of Brown & Williamson, a party to the case) agreed
to establish a depository of all UK documents which were furnished
during the discovery phase of the action and to make it accessible
to the public for 10 years. This has become known as the Guildford
Depository. There is another depository in Minneapolis for the
US documents.
The opening hours and manner of operation was
carefully detailed as far as the plaintiffs were concerned. For
example the facility has to be available between 8 a.m. and 8
p.m. No such detail was laid down by the court for public access.
Consequently, BAT has been in a position to decide what procedures
will apply. They have deemed the opening hours to be 10 a.m. to
4 p.m. in Guildford (although the Minneapolis depository is open
from 8 a.m. to 8 p.m.), and have now restricted access to one
organisation at a time. This means the Depository frequently has
only one visitor at a time and bookings stretch into next year.
It has been my experience that BAT has restricted
public access to an unreasonable degree without justification.
This has serious consequences for parties (other
than the US plaintiffs and their lawyers) who are seeking redress
for the harm caused by BAT's products or who are seeking to reveal
the potentially misleading conduct of the company.
Furthermore, there are indications that, in
the near future, lawyers acting for the US federal government
may have exclusive use of the Depository in the preparation of
their case against US tobacco companies, thereby denying the British
public any access whatsoever for a significant period of time.
Other parties to the Minnesota case, including
Brown & Williamson, have placed the documents furnished during
the discovery phase on the Internet thereby making public access
easier.
It is not clear why BAT has chosen not to do
this with the UK documents as the financial and administrative
burden of running the Depository in the current manner would appear
to greatly outweigh such a move.
RECOMMENDATION
That the Committee propose to Government that
BAT be required to provide to the public the same level of access,
under the same terms and conditions, as they are required to provide
to the US plaintiffs. Furthermore that BAT be required to electronically
scan all documents in the Guildford Depository, indicating which
are deemed privileged and trade secret and why, and to make these
publicly available via the Internet.
BACKGROUND
In August 1995, a Minnesota Court Order set
out the terms of settlement between the State of Minnesota, Blue
Cross and Blue Shield of Minnesota and nine tobacco industry organisations,
including BAT Industries plc.
The order stipulated that BAT should establish
a depository in Guildford (Annex 1, see sections 8 and 10)[17]to
contain all the documents which had been furnished by the company
during the discovery phase of the proceedings. The order further
stipulated that BAT should make this depository accessible not
only to the US plaintiffs and their lawyers but open to the public
from February 1998 for a period of 10 years.
The Depository finally opened in February 1999.
I have visited the Guildford Depository on nine occasions since
June of this year in the course of my research. It has never been
easy to gain access but it has grown significantly more difficult
as time has gone by.
I attach copies of the correspondence between
BAT and myself on this matter (Annex 2).* A summary of my dealings
with BAT is as follows:
— 1 June: JW applies in writing
to attend "as soon as possible". Letter is hand-delivered
to BAT in London.
— 3 June: BAT reply indicates availability
in June and July except for two specified weeks.
— 7 June: JW requests 8 to 11 June
in writing but is told later by telephone that the Depository
is closed all week "for re-wiring" and will be closed
for much of July "for staff holidays". Offered 14 to
16 June instead and is advised that two or three researchers from
ASH will be present.
— 14 & 16 June: JW attends
Depository. JW is unable to attend on 15 June but contracts with
ASH researchers to order documents for her. This is agreed to
by BAT staff at Guildford.
— 16 June: JW telephones Lovell
White Durrant (BAT's lawyers) to request date for delivery of
copies and is told "in a couple of weeks".
— 21 June: BAT requests £4,000
advance payment.
— 24 June: JW arranges banker's
draft for £4,000 to be hand-delivered.
— July: JW telephones LWD more
than 10 times to ascertain when she can collect the copies.
— 3 August: JW is told by LWD she
can collect the copies, some seven weeks after ordering them and
six weeks after paying for them.
— 18 August: JW telephones LWD
to request further visits in September and is told that the Depository
is "fully booked until mid-December". JW phones BAT
in Guildford and is told that she can attend alongside another
organisation on 6 and 7 September.
— 6 and 7 September: JW attends the
Depository. BAT Guildford staff agree she can also attend on 9
and 10 September, 20 and 21 September; and 11 and 12 October alongside
other organisations provided she puts requests in writing to BAT
London. JW asks BAT staff for future dates and is told the Depository
is now booked until mid-February. JW requests four weeks from
14 February to 10 March.
— 8 September: JW faxes written request
to BAT London for access on 9 and 10 September.
— 9 and 10 September: JW attends the
Depository alongside the US Center for Public Integrity and takes
part in two meetings with LWD lawyers to discuss difficulties
with access and other procedures.
— 11 September: JW faxes written request
to BAT London for access on 20 and 21 September.
— 20 September: JW arrives at Depository
and is told by BAT and LWD staff that she is not expected as no
fax had been received and, therefore, cannot be admitted. JW provides
copy of fax; arranges for evidence of transmission to be provided;
confirms fax number was correct for BAT London; establishes there
are two free places; but continues to be denied access for six
hours. Offered 29, 30 September and 1 October due to "a cancellation".
— 21 September: JW confirms she will
attend on 29, 30 September and 1 October and seeks clarification
of the number of places available on any one day.
— 23 September: BAT confirms six places
are available on any day. BAT writes that 11 and 12 October are
now not available. This is in spite of prior agreement that JW
could attend along with two people from ASH on those days.
— 28 and 30 September: JW attends the
Depository. BAT staff suggest that the Depository may be closed
to the public indefinitely if the US federal government lawyers
require access in preparation for their case against US tobacco
companies.
— 28 September: JW seeks clarification
of the number of organisations which may attend on any one day,
given there are places for six people.
— 1 October: BAT replies six organisations
would "not be practicable".
— 4 October: JW proposes up to six
people from a maximum of three organisations, as she has been
told by BAT staff that this was the agreed, but not advertised,
policy. JW repeats request for 12 October as only two people from
one other organisation, ASH, will be present.
— 11 October: BAT replies that access
cannot be granted for 12 October.
— 12 October: JW requests explanation
for apparent policy of one organisation at a time even if only
one person attends.
— 21 October: BAT replies that access
is now limited to one organisation at a time "for the time
being" because of the "considerable strain on our resources"
occasioned by the number of requests for copies of documents.
17 Annex not printed. Back
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