The information was then used by the tobacco company last year in Britain to contest plain packaging laws. It's understood the Victorian school survey has produced early data that suggests plain packaging is effective. The Victorian Cancer Council is spending thousands of dollars fighting the FOI application in the Victorian Civil and Administrative Tribunal. Director Todd Harper told Fairfax Media that releasing the data would be in "direct conflict with the wishes of parents and schools" who gave permission for students to conduct the surveys on the basis of confidentiality and that it would be used in the interests of public health. "If this information were to be used for commercial purposes, for instance to hone or localise tobacco or alcohol marketing and pricing strategies to appeal to the young, provision of such information would be highly detrimental to Victoria's children," Mr Harper said. NSW's Chief Cancer Officer, Professor David Currow said the Cancer Institute NSW did not support the efforts of Big Tobacco to fight plain-packaging legislation "aimed at reducing the thousands of people dying from smoking-related cancer each year".

"The Cancer Institute NSW was compelled to provide tobacco survey data requested under the NSW Government Information (Public Access) Act," he said. A spokesperson for British American Tobacco defended the FOI applications, stating that the company was seeking information to bolster its case that "instead of Australian youth smoking rates going down because of plain packaging, they're going up". "Any other evidence to prove the latter needs to be highlighted so that other countries around the world don't make the same mistake. Any such evidence is also relevant to the government's Post Implementation Review into plain packaging, which is still underway. "In this context any such request for an FOI to obtain this information is both reasonable and legitimate. Importantly, in none of the FOI applications was any personal data or information in respect of children or adolescents sought." In completing the surveys, thousands of Victorian school children detail their age, gender, postcode and school type, pocket money and school results, and answer questions about their smoking and drinking practices, including what brands they prefer.

They are shown cigarette packages and asked which brand is considered "daggy" or "cool". They are also asked if they use an older sibling or adult friends to buy cigarettes; to describe how they obtained the cigarette they most recently smoked and if they have seen cigarettes being sold by the stick. They are also tested on anti-tobacco health messages. In the alcohol section of the survey, the students are quizzed about what alcoholic beverages appeal to them and how they obtain them. "Schools participated on the basis of confidentiality and it would be a breach of trust to schools, parents and students if that information was able to be accessed by the tobacco industry or other industries," Mr Harper said.

In 2011, a public outcry in Britain forced tobacco giant Philip Morris International to back away from attempt to access, under FOI laws, university interviews with British teenagers about smoking. The lawyer fighting to obtain the data on behalf of British American Tobacco is Graeme Johnson, a senior partner at Herbert Smith Freehills. Several of the firm's top US lawyers recently travelled to Australia to warn that regulators could potentially force alcohol, soft-drink or fast-food firms to label their products with graphic health warnings. Mr Johnson declined to comment when called by Fairfax Media about his precise motive for lodging the FOI application seeking children's survey answers. The British Medical Journal recently published several studies that suggested plain packaging reforms were producing beneficial public health outcomes.

Professor of Health Policy at Curtin University Mike Daube, who chaired the federal government's Expert Committee that recommended plain packaging and other tobacco control measures, said the FOI application for the school survey data "takes even the tobacco industry into new lows". Professor Daube said there was no guarantee the survey data would not also be accessed by alcohol companies if released, while warning that future FOI applications by tobacco and alcohol companies could be used to frustrate public health research. "The companies claim that they have no interest in children – yet they are going to extraordinary lengths to access research data about children and tobacco, alcohol and drugs." He warned that even if the FOI application was defeated, Big Tobacco or its lawyers would still "have distracted a Cancer Council and world-leading researchers from their work". "This use of FOI legislation by the world's most lethal industry raises another issue of enormous concern. If Big Tobacco can use FOI to harass a cancer council, what is to stop them using FOI to obtain information from any researchers employed by universities, or to tie them up in endless legal battles?"

He said governments might need to amend FOI legislation to prevent it being used in this way.