The federal health department is considering taking action against big tobacco for lodging “vexatious” Freedom of Information (FOI) claims as part of the industry’s fight against Labor’s plain-packaging push.
Health department secretary Jane Halton says the department is being “swamped” with FOI requests as part of a deliberate campaign by cigarette manufacturers.
“This is a very specific and deliberate attempt to divert resources,” Ms Halton told a Senate estimates hearing on Wednesday.
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“There will come a point where we will have to consider what to do about that.”
Ms Halton said there was a provision in the FOI legislation relating to vexatious applicants.
“We are intending to take advice on that,” she said.
“It is being discussed.”
The health department has received 63 FOI requests, of which 52 were from big tobacco. Some 35 are still being dealt with.
The Gillard government wants to force all cigarettes to be sold in drab olive-brown packs from mid-2012.
Cigarette manufacturers have threatened to challenge the world-first laws in court after they pass the Senate later this year.
Ms Halton said on Wednesday big tobacco’s FOI requests had cost the department “an awful lot”. Industry is disputing some of the charges.
The department secretary said she supported the principle of openness but “the way the current FOI laws are written there are huge opportunities for people who wish to abuse process to do so”.
The amount the department can charge for processing requests “goes nowhere near meeting our costs”, Ms Halton said.
It can only charge $15 per hour for search and retrieval and $20 an hour for decision-making time. The staff doing the work can earn up to $50 an hour.
“So we are hardly talking reasonable recompense for the amount of time and energy it’s taking,” Ms Halton said.
British American Tobacco Australia (BATA) argues it’s been forced to rely on freedom of information applications because Health Minister Nicola Roxon refuses to consult industry.
BATA has lodged 15 FOI requests with the health department in the past 18 months and is currently waiting on six to be finalised.
“Documents (already obtained) from the government show they have concerns about the need to pay compensation to the tobacco industry for removing our intellectual property, the growth in illegal tobacco once all packs look the same and an increase in smoking rates due to cheaper cigarettes,” BATA spokesman Scott McIntyre told AAP in a statement.
An April 2010 briefing note from the government body which administers Australia’s intellectual property rights system states plain packaging would impinge on trademark rights.
But, IP Australia points out, that might not be a problem if it serves the public interest.
Greens health spokesman Richard Di Natale says big tobacco is using every tactic possible to derail plain packaging.
“They have resorted to trying to clog up the health department with vexatious FOI requests,” he said in a statement on Wednesday.
“The tobacco industry should halt their campaign of mischief and let the health department do its job protecting the public’s health.”
Under Australia’s FOI laws an applicant can be declared “vexatious” by the information commissioner.
© 2011 AAP