Access to Public Information
Dotcom Trading 121 (PTY) Ltd v. King
Closed Mixed Outcome
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The Chilean Transparency Council partially granted an acción de amparo against the Undersecretary of Public Health, and ordered the disclosure of copies of the contracts signed by the Chilean Ministry of Health with pharmaceutical companies to acquire vaccines against COVID-19. Nicolás Massai del Real submitted an access to information request before the Undersecretary of Public Health requiring the aforementioned information, which was denied. According to the defendant, disclosing such information could affect the acquisition, delivery, and reception of the vaccines, thus affecting public health.
The Council’s decision considered that the requested information was of public interest and allowed citizens to exercise oversight regarding the national vaccination plan against COVID-19, which would in turn strengthen public trust in the vaccination process. However, the Council denied access to the information included in the contracts regarding the costs’ structure, logistics, and distribution of the acquired product since its disclosure could negatively impact the national interest and public health. This decision was later upheld by the Court of Appeals of Santiago in the case of AstraZeneca S.A. v. Transparency Council.
On December 10, 2021, Chilean citizen Nicolás Massai de Real requested from the Undersecretary of Public Health a copy of all the contracts that the Ministry of Health signed with national and international pharmaceutical companies to acquire vaccines against COVID-19. Through Resolution No. 69 of January 22, 2021, the Undersecretary of Public Health denied the request arguing that the required contracts contained confidential information on the number, delivery dates, place of reception, and distribution of vaccines acquired by Chile, therefore, it could not deliver the information for reasons of public interest and security.
On January 27, 2021, citizen Nicolás Massai del Real filed an amparo action against the Undersecretary of Public Health, arguing that his right to access public information was breached.
On February 13, 2021, the Transparency Council asked the Undersecretary of Public Health to render a response to the plaintiff’s claims. However, said body refrained from responding.
On April 26, 2021, the Transparency Council granted third parties —such as Pfizer Inc. or AstraZeneca S.A.— the possibility of participating in the process. These companies held that the requested contracts have confidentiality clauses that prevent their disclosure. Pfizer Inc. stated that the “Confidential Disclosure Agreement” meant that the contracts were absolutely confidential and that disclosing the requested information would seriously affect Pfizer’s competitive development. Pfizer argued that the requested information could be denied, following the criteria established by the Council regarding disclosure of information that could affect or impact commercial and economic rights.
On the other hand, AstraZeneca S.A. asked the Council to deny the delivery of the information because it was especially sensitive and strategic. The company stated that the information’s denial respected the constitutional guarantees of business activities.
The Transparency Council had to decide whether the Undersecretary of Public Health’s decision, denying access to information about the contracts signed by the Chilean Ministry of Health with pharmaceutical companies to acquire vaccines against Covid-19, was properly justified.
The Council began its argument by stating that the Undersecretary of Public Health mentioned that the requested information could harm the acquisition, delivery, and reception of the vaccines, without properly specifying how this could affect or compromise national security or public health.
On the other hand, the Transparency Council held that the dissemination of the aforementioned information would greatly benefit the general population by strengthening public trust in the vaccination process. This, in turn, would incentivize people to voluntarily vaccinate, fostering the right to physical and psychic integrity, as enshrined in article 19 of the National Constitution of Chile. Likewise, the Council noted that the requested information included data on the effectiveness, adverse effects and quality of the vaccines, which is all relevant information with implications on public health, thus divulging it could encourage public trust.
The Council then proceeded to analyze whether the disclosure of the requested information could harm the commercial or economic rights of any person, which would justify concealing it. The Council argued that for this exemption to the right to access information to apply, the requested information must be secret in the first place. In light of this, the Council considered this was not the case since there was plenty of information available on the Ministry of Health’s website, the internet platforms of pharmaceutical companies, and in media outlets, regarding the vaccines, their amount, composition, effectiveness, adverse effects, and price. Taking this into consideration, the Council concluded that disclosing the requested information did not affect the commercial or economic rights of any person.
Nonetheless, the Council considered that the dissemination of the information about the cost’s structure, logistics, and distribution of the vaccines —i.e. information on the acquisition, transportation, and storage— could negatively affect national interest and public health. The Council argued that upon disclosing this information, other potential buyers could know the agreed terms, which vary from state to state, affecting future prices and competitive advantages in the context of a market with few providers. Hence, the Council opined that keeping this information secret was indispensable, although it must be disclosed in full once the vaccination process ended.
The Council argued that the disclosure of the information was critical to generate public trust in the context of the pandemic. The decision mentioned that the demand for greater transparency came, not only from citizens but from the World Health Organization and the International Coalition of Pharmaceutical Regulatory Agencies (ICMRA).
Ultimately, the Council ordered the delivery of the requested contracts, excluding the information on the costs’ structure, logistics, and distribution of the vaccines
Counselors Natalia González Bañados and Francisco Leturia Infante issued concurring votes. While sharing that the partial delivery of the requested information was correct, the Counselors considered that the Transparency Council was not the best-positioned body to determine whether the information on the cost’s structure, logistics, and distribution of the vaccines could affect the national interest or public health.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this decision, the Transparency Council underscored the importance of access to information on public matters in the context of the COVID-19 pandemic to foster public trust in the vaccination process and strengthen the right to physical and psychic integrity. Nonetheless, the Council also restricted access to information by considering that the disclosure of the costs’ structure, logistics, and distribution of the vaccines could negatively impact their future provision, which could affect national interests and public health.
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This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.
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