Case Summary and Outcome

The Agency for Access to Public Information (AAIP) granted an access to information request regarding information about the negotiations and all available data on the acquisition of the Russian Federation’s COVID-19 vaccine, Sputnik V. The Ministry of Health denied access to the information mentioned above, arguing that the negotiations were carried out under confidentiality clauses and that the information resulting from them is confidential. The petitioner, Lisandro Marco Benetti, given the refusal, filed a complaint to the Agency for Access to Public Information. The Agency argued that the Ministry failed to justify why it kept of all the information confidential when it could have redacted sensitive information —that is, as long as it justified.

Facts

On January 6, 2020, Mr. Lisandro Marco Benetti submitted an access to information request from Argentina’s Ministry of Health. He requested: “(…) a copy of the agreement signed in December between the Argentine Republic and the Russian Federation for the arrival of the Sputnik V vaccine to the country. A copy of all annexes, appendices, or amendments that may exist is also requested. If it has been signed in more than one language, I request that a copy of the agreement be delivered in all its official languages” [p. 1].  

On January 15, 2021, the Ministry of Health answered Mr. Benetti’s request stating that: “(…) Law 27.573, in its article 4, second paragraph, empowered the National Executive Power, through the State Portfolio, to include clauses or confidentiality agreements in the negotiations for vaccines intended to generate acquired immunity against Covid-19. Additionally, article 5° enabled the incorporation of other clauses in accordance with the international market, all under Law 27.275 on Access to Public Information” [p. 2]. The Ministry explained that actions carried out for obtaining the vaccine have been undertaken under confidentiality agreements and, consequently, they are treated as confidential files. 

On February 22, 2021, Mr. Benetti filed a claim before the  Agency for Access to Public Information (AAIP), considering that the Ministry’s decision breached his right of access to information.

Decision Overview

The Agency for Access to Public Information had to decide whether the requested information—regarding information about the negotiations and all available data on the acquisition of Russian vaccines—was confidential and, if so, if the Ministry of Health properly justified denying access to it.

In the first place, the Agency considered that Law No. 27.573, in fact, allowed the inclusion of confidentiality clauses or agreements in accordance with the international market. For this reason, it recognized that domestic laws allowed the Ministry of Health to include confidentiality clauses in contracts with potential countries and/or laboratories for the acquisition of vaccines against COVID-19. However, contrary to what was said by the Ministry, following the provisions of Law No. 27.573 and Law No. 27.275, the access to information request should not have been denied, since some of the information could have been delivered using redaction methods to hide confidential clauses. For the Agency, vaccine access agreements are considered public information, and citizens have the right to know their content.

Additionally, the Agency determined that confidential clauses should be crossed out of the document, and the reasons for their confidentiality should be explained to the public. Furthermore, the AAIP considered that the response provided by the Ministry was against good practices regarding the right of access to information, since it seemed like the Ministry considered that the entire agreement was confidential.

In this sense, the Agency determined that it was necessary and adequate for citizens to know the content of the requested agreement because this fostered greater transparency regarding the government’s involvement in the vaccines negotiations. Likewise, the Agency cited the Office of the Special Rapporteur for Freedom of Expression of the OAS to highlight that limitations to the right of access to information must pursue a legitimate interest, accredit the existence of potential harm to a protected right upon disclosing the information, and prove that the protection of this legitimate interest outweighs the public interest that may exist on the information. In this sense, as mentioned above, the Ministry of Health should have taken this into account to balance the rights in tension and determine to which extent it could disclose the information or limit its access.

Therefore, the Agency concluded that the claim made by Mr. Benetti had a legal basis and that the Ministry of Health had to deliver the requested information promptly and, if necessary, to use data anonymization techniques to conceal the confidential clauses, justifying the basis on which they were established.