Case Summary and Outcome

Colombia’s Administrative Court of Cundinamarca ordered the National Unit for Disaster Risk Management (NUDRM) to deliver to More Information More Rights Alliance (Alianza Más Información Más Derechos) the confidentiality clauses of the agreements signed by the National Government for the acquisition of vaccines in the context of the COVID-19 pandemic. The Government denied the request for information on the ground that they were confidential under an exceptional legal regime that regulates contracts with foreign agencies and companies. NUDRM further argued that disclosing such clauses would be a violation of the contracts signed with pharmaceutical companies and, therefore, could result in these companies not supplying them with COVID vaccines, which could harm the public health of the Colombian population. The Court held that the refusal to disclose the confidentiality clauses violated the petitioner’s right of access to information. In particular, it established that the NUDRM’s position was neither appropriate, necessary nor proportional. It also held that the refusal to provide such information violated standards of international human rights law and Colombian domestic law. Consequently, the court ordered the release of the information because it did not affect public health and there was no reason to limit the petitioners’ right of access to information.

Facts

On April 5, 2021, the Transparency for Colombia Corporation -which is the local office of Transparency International for Colombia-, the Center for the Study of Law, Justice and Society – Dejusticia, the Ocasa Corporation and the Antonio Nariño Project, all members of the alliance “More Information More Rights” submitted a request for information before the National Unit for Disaster Risk Management (NUDRM) requesting the confidentiality clauses of the agreements signed by the National Government with pharmaceutical companies for the acquisition of vaccines in the context of the pandemic caused by COVID-19. 

On April 17, 2021, the NUDRM denied the petition because the requested information was confidential according to the agreements made by the government with the pharmaceutical companies. 

The Alliance More Information More Rights submitted an appeal under Colombia’s Administrative Court of Cundinamarca against the negative response of NUDRM because it considered that its right to access to information was violated. The petitioner argued that the government’s reasons were unreasonable. In this regard, it stated that the disclosure of the confidentiality clauses of the contracts for the COVID-19 vaccines did not necessarily mean that these companies will stop supplying vaccines. 

Decision Overview

The central issue before the Court was whether the Government’s refusal to disclose the confidentiality clauses of the contracts for COVID-19 vaccines was in accordance with Colombian law and its international obligations. 

The NUDRM argued that the documents requested were confidential because they were part of an international negotiation. It also claimed that providing this information would put at risk the supply of vaccines against COVID-19, either because the contracting party would initiate a dispute or it would unilaterally conclude the contract for breaching the confidentiality clauses stipulated in the negotiation. The Alliance More Information More Rights claimed that it was not requesting the complete content of the contract, only the confidentiality clauses. It argued that the disclosure of the confidentiality clauses does not imply that pharmaceutical companies will stop the provision of vaccines against COVID-19. It also added that although the negotiation and purchase of the vaccines were done in the framework of international private law, these contracts were still financed by public resources. Further, it claimed that by not providing the confidentiality clauses, it would be unknown whether they actually exist and the scope of such clauses.

 The Administrative Court of Cundinamarca held that NUDRM’s denial to provide to the public the content of the confidential clauses was in contradiction with the principle of Article 19 of the Universal Declaration of Human Rights (1948) and Article 13 of the American Convention on Human Rights (1960), in which access to information is developed as a basis for freedom of expression. To reach such conclusion, the Court began by explaining the valid limitations to the right of access to information. 

To that extent, it is emphasized that, the legislator established in Article 25 of Law 1755 of 2015 the restricted nature of the instructions in diplomatic matters and private negotiations in order to respect the independence and confidentiality required for the exercise of the constitutional functions proper to the Government. Nonetheless, the reservations alleged by the NUDRM’s could not be the mere noting or registering of the reservations since it was insufficient by itself to justify the restriction of a fundamental right. This is because many of these exceptions constitute, in a way, open clauses or indeterminate legal concepts that must be specified and defined.  

Futher, the Court defined diplomatic relations by reference to different international instruments such as the Vienna Convention on Diplomatic Relations (1961), the Vienna Convention on Consular Relations (1963), the Vienna Convention on Treaties (1969) and the Vienna Convention on the Representation of States before International Organizations (1975), instruments that do not cover international companies as the pharmaceuticals. 

Moreover, the Court had to define what a confidential negotiation was and its scope in order to define whether the requested information was privileged. The Court pointed out that the reservation, in relation to access to instructions in diplomatic matters and other reserved negotiations, corresponded to the need to respect the independence and confidentiality required for the exercise of the constitutional functions of the Government. 

However, the Court held the confidential clauses did not comply with the standards of suitability, necessity and proportionality of Resolution No. 1/2021 of the Inter-American Commission on Human Rights which established standards of access to information in particular regarding the public resources destined to avert the crisis produced by COVID-19. 

To support its argument, the Court mentioned that the Inter-American Court has explained that the importance of the discussion of matters of public interest leads to the reinforced protection of the right of access to information under State control so that citizens can question, inquire and consider whether public functions are being adequately fulfilled. In particular, in the case of Tristán Donoso v. Panama, the Inter-American Court affirmed that judges must positively value democratic debate on issues of public interest when considering a case related to freedom of expression and its restrictions, as these must incorporate the just demands of a democratic society.

The Court held that once a negotiation concludes with a signed agreement, treaty or contract, the negotiation phase is complete. With this in mind, the Court considered that NUDRM cannot continue to rely on an exception that was temporary and for a specific stage (negotiation) and not based on its result, that is, the “contract”. The exception was no longer valid as the purpose for which it was created, the agreement, had already been finalized.

Moreover, the Court stated that the American Convention on Human Rights requires the following test must to be met in order to restrict the right of access to information. First, the restriction must be legal and stated in a clear and precise manner. Second, the restriction must be exceptional, temporary or limited by the duration of the cause. Third, it must be necessary, suitable, proportional, and reasonable. Finally, it must pursue legitimate objectives such as the protection of national security, public order, public health, public morals, and the rights of others; it must be demonstrated that the disclosure of the information effectively threatens to cause substantial harm to that legitimate objective.

To conclude, the Administrative Court of Cundinamarca held that the test was not met because the NUDRM did not justify the alleged harm that would be caused by the disclosure of confidential clauses. Likewise, the document was not subject to confidentiality since the negotiation stages had been concluded. Moreover, it was empirically proved in several countries (such us United States, Argentina, among others) that the disclosure of the contracts allowed for transparent processes, improved contracting ideas, and did not affect in any way the obtaining of vaccines and, ultimately, the immunity of nationals. The Court ordered the National Unit for Disaster Risk Management to deliver to the petitioner, within three days following the notification of the ruling, the confidentiality clauses of the agreements signed by the National Government for the acquisition of vaccines in the context of the pandemic caused by COVD-19.