Recurrent: Ministry of Health
Resolution appealed: R CTBG 0596/2023
In exercise of the right of access to public information, the Ministry of Health was requested to access the contracts signed by the Administration with the pharmaceutical companies for the purchase of oral medicines against COVID-19, indicating the number of units purchased, the date of purchase, the date of arrival, identification of the seller and price paid, broken down by autonomous communities, agencies or administrations.
The requested Ministry refused access after granting a hearing to PFIZER, S.L.U., which expressed its opposition. It was argued that its disclosure could harm the economic and commercial interests of the companies affected (art. 14.1.h LTAIBG), since it would allow access to information relating, among others, to product costs, commercial costs, sales forecasts or market shares, which are data of reserved knowledge and which, in addition, are protected by professional secrecy (art. 14.1.j) LTAIBG). And it also invokes the limit of Article 14.1.k) LTAIBG, which justifies the existence of a legal obligation of confidentiality that Article 97 of Royal Legislative Decree 1/2015, of July 24 (TRLGURMPS, hereinafter), imposes with respect to all information on the technical, economic and financial aspects of the medicines that laboratories deliver to the Ministry of Health during the pricing procedure.
The Council partially upheld the claim, noting that the argument given with respect to the assets protected by the limits of article 14.1.h) and 14.1.j) LTAIBG is not sufficient, since the damage that disclosure would cause has not been specified and a weighting has not been made between the conflicting interests or the possibility of providing partial access has been considered. It states that the confidentiality reserve of TRLGURMPS is not absolute, being projected on the prior information that the laboratory provides to the Ministry in the negotiation process, which is not extensible to the information regarding the price paid for the medicines contained in the purchase contract. Therefore, it resolves to grant access to the contracts requested —which would be understood to include the requested breakdown—, omitting confidential information and whose disclosure would cause damage to economic and commercial interests, prior and express justification.