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Legal Weapon

Tobacco companies, facing increasingly strong opposition, have turned to open-records laws to fight back, inundating state offices with requests for documents and, in some cases, using information from them to charge antismoking groups with improper use of public funds.


U.S. cigarette makers, using open-records laws as a surveillance tool, have been engaged in a quiet but far-reaching campaign to investigate and discredit government-sponsored antismoking programs, a tactic health officials acknowledge has put them on the defensive and disrupted their work, interviews and public documents show.

From California to Minnesota, Massachusetts to Washington state, tobacco lawyers and consultants have swamped health departments with requests for thousands of pages of documents relating to their antismoking efforts. In some cases, information from the records has been used to charge health officials and antismoking groups with improperly using public funds to lobby.

Although the industry campaign has been going on for at least three years, it has intensified recently as state and local authorities have stepped up their efforts to combat smoking, which health authorities say kills more than 400,000 Americans annually and is the leading preventable cause of disease and death.

The industry's counteroffensive reflects a strategic shift in the war on smoking. Where health officials once stuck to such tactics as lecturing pupils and running smoking-cessation clinics, they now advocate policy measures to discourage smoking--such as cigarette tax increases, curbs on smoking in public and crackdowns on illegal sales to minors.

Equally worrisome to tobacco firms is the growing clout of the antismoking movement, which now enjoys increasing financial support from public health agencies and private foundations. Once a small cadre of academics and volunteers churning out fliers in dim church basements, the movement is now a small but growing industry that helps support thousands of people.

Tobacco officials said they are concerned about public support for programs that go beyond mere persuasion to regulating smoking. When federal agencies give millions of dollars to the states "to attack tobacco--to pass tax increases, smoking bans and other restrictions--it gets our attention," said Brennan Dawson, spokeswoman for the Tobacco Institute, the industry's Washington-based lobbying and public relations arm.

"This is not anything but taxpayer money, and there are rules and regulations about how taxpayer money can be spent," Dawson said.

The flood of records requests has proved a severe distraction for public health workers, who say they have been diverted from regular duties for days or even weeks to collect and reproduce mountains of paper.

In some cases, tobacco companies have worked behind the scenes, filing requests for records through allies or proxies with no obvious ties to the industry, interviews and documents show.

But Dawson said other requests have been filed by smokers'-rights advocates acting "of their own volition because they don't like what they're seeing."

The cigarette makers are facing a wave of high-profile assaults, including litigation by seven state attorneys general to recover smoking-related health-care costs and the Food and Drug Administration's proposal to regulate nicotine as a drug. However, the industry's rear-guard campaign to bog down the antismoking forces has gone unpublicized.

Under the federal Freedom of Information Act and parallel state laws, residents have the right of access to public records. Journalists and citizens groups frequently use the laws to monitor government activities.

Although businesses have the same rights to public records, health authorities say the tobacco industry is abusing its rights.

Some examples they cite:

* In Colorado, health officials turned over 6,000 pages of documents and copied 7,000 more that industry lawyers requested but did not pick up, said Walter F. Young, former director of prevention programs for the state health department.

The cost in staff time to respond to the requests can "very safely" be put at $50,000 to $60,000, said Young, who recently left the agency for another job.

* In Washington, the state health department provided more than 5,000 pages of records to tobacco lawyers, said Kim Dalthorp, a state tobacco-control official, who said she and her colleagues spent about 360 hours retrieving and copying the records.

Now they are spending additional time responding to a complaint to the state Public Disclosure Commission that accuses the health department of allowing the use of federal funds for lobbying purposes, a charge agency officials have denied.

* In October, Indiana's health department was asked by a law firm that lobbies for Philip Morris Cos. for "all documents that relate, in any way, to requests for--or expenditure of"--funds for tobacco control. And in Massachusetts, a Boston law firm that represents Philip Morris recently filed two sweeping requests for records.

"It's clearly a harassment strategy that they're using," said Gregory Connolly, head of tobacco control for Massachusetts. The industry "has asked for everything," Connolly said. "They've asked, basically, for our building."

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