Access to Public Information
Company Doe v. Public Citizen
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The Court of Appeals of Santiago upheld a decision by the Chilean Transparency Council which ordered the disclosure of the contracts signed by the Ministry of Health with pharmaceutical companies for the acquisition of vaccines against COVID-19. AstraZeneca S.A. appealed the order arguing that the information was protected by commercial secrecy and that its disclosure could harm the acquisition and delivery vaccines. The Court argued that the Subsecretary of Public Health, as well as the pharmaceutical companies, failed to prove a pressing concern or probable harm and with sufficient specificity to the national interest or to public health. Thus, the Court fully affirmed the grounds of the Transparency Council’s decision and rejected the appeal.
Chilean citizen Nicolás Massai del Real, requested from Chile’s Subsecretary of Public Health a copy of all the contracts that the Ministry of Health signed with national and international companies for the acquisition of vaccines against COVID-19. Through Resolution N. 69 of January 22, 2021, the Subsecretary of Public Health answered the request arguing that the requested contracts contained confidential information on the number, delivery dates, place of reception and distribution of vaccines acquired by Chile, so it couldn’t deliver the information for reasons of public interest and security. Later, on January 27, 2021, Mr. Massai del Real filed an appeal under the Transparency Council against the Subsecretary of Public Health for the violation of his right to access to public information.
On April 26, 2021, the Transparency Council decided to grant the possibility to third parties to make a pronouncement with respect to the action. In response, the interested third party, AstraZeneca S.A., presented its respective arguments, assuring that the contracts have confidentiality clauses that prevent their publicity. AstraZeneca S.A. requested to deny the delivery of the requested information because it was especially sensitive and strategic, being highly confidential and whose content must be shared exclusively by the health authority. It stated that they are protected by business confidentiality which protects economic and commercial rights. Thus, it assured that the confidentiality of the information implied the respect for the constitutional guarantees of business activity.
The Transparency Council, in decision C585-21 of June 22, 2021, ruled to partially accept the protective action and ordered the delivery of the copies of the contracts with the pharmaceutical companies, omitting the information corresponding to the costs and logistics or distribution of the vaccines.
AstraZeneca S.A. appealed the decision before the Court of Appeals of Santiago.
The Court of Appeals of Santiago had to decide whether the decision of the Transparency Council to disclose the contracts of the Ministry of Health with the pharmaceutical companies in relation to Covid-19 vaccines violated commercial secrecy and national interests in accordance with the Chilean legal system. The Court rejected the appeal submitted by AstraZeneca S.A. against the decision C585-21 of June 22, 2021, of the Council which partially accepted the request of information filed by the citizen Nicolás Massai del Real against Subsecretary of Public Health, ordering the delivery of a copy of the contracts signed by the Ministry of Health with pharmaceutical companies for the acquisition of vaccines against COVID-19.
The appellant affirmed that the disclosure will affect commercial and property rights of AstraZeneca, since it was highly sensitive and secret information. Moreover, it claimed that the company and its agreement with the government were protected by commercial secrecy. Furthermore, AstraZeneca S.A. argued that the Council’s decision affected the national interest as it related to public health. Additionally, the petitioner alleged that there was a lack of motivation in the challenged act, and it did not respect Articles 11 and 41 of Law No. 19.880 because it only contained generic mentions of norms and facts.
The Court of Appeals of Santiago held that the appellant referred to the criteria for restricting information established in article 21 N° 4 of the Transparency Law but only provided generic arguments referring to how the disclosure of the information could harm the acquisition, delivery, or reception of the vaccines for COVID-19. Thus, the Court considered that it was not relevant for the appellant to point out that the Council did not apply the damage test to resolve the action, since precisely the aforementioned test was carried out, and by virtue of that test it was concluded that in the merit of the claimant’s generic allegations, it was not possible to determine a damage or concrete and real justification. Therefore, it concluded that the appellant failed to indicate how the national interest and public health would be affected with sufficient specificity.
As for the allegation of potential violation of the economic, property and commercial rights of AstraZeneca, since the company was also unable to provide suitable and sufficient evidence to prove this fact, the claim was rejected. Additionally, regarding the confidentiality clauses agreed in the contracts signed by the claimant, the Court noted that the supremacy of contracts and the autonomy of the will as a basic principle in contractual matters cannot be placed before a mandatory constitutional rule on transparency, since these do not fall within the scope of Article 8 of the Chilean Constitution which protects the transparency of government acts.
Moreover, the Court pointed out that it fully affirmed the grounds of the appealed decision, because the partial publicity of the vaccine procurement contract strengthened the confidence of the citizens in the vaccination process, thus encouraging greater participation in the voluntary national vaccination plan, for the benefit and interest of the population. Therefore, the information requested turned out to be relevant for verification purposes in relation to what was reported by the authority, regarding the data on the characteristics of the vaccines acquired, such as their effectiveness, adverse effects, and manufacturing quality, among others.
Finally, the Court concluded that, notwithstanding the above, this matter had already been solved because the contract that was the object of the present claim had already been published. Therefore, the appeal filed by AstraZeneca S.A. against the Chilean Transparency Council, on its decision Rol C585-21, was rejected.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In its ruling, the Court of Appeals of Santiago strengthened the right of citizens to access information regarding contracts on COVID-19 vaccines that had been classified as secret by the Chilean Ministry of Health. The Court of Appeals pondered the primacy of the right of access to public information on matters relating to public health over the petitioner’s excessively generic arguments about the potential harm that could be caused by publicizing the terms of the pharmaceutical companies’ contracts with the government. In particular, the Court of Appeals reinforced the effectiveness of the right of access to public information provided for in Article 8 of the Chilean Constitution and the Transparency Law.
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