Recurrent: Ministry of Health

Recurred resolution: R/0052/2023

In exercise of the right of access to public information, the Ministry of Health was asked for the financing price approved by the National Health System for a certain drug, as well as its impact on the health budget.

The Ministry, after giving a hearing to the affected laboratory in accordance with the provisions of art. 19.3 LTAIBG denied access, considering that there is a specific legal regime for access to information that determines the confidentiality of the information requested, and that, even if the LTAIBG is understood to be applicable, the access requested would be affected by the limits established in its article 14.1.h), j) and k): the protection of commercial interests, intellectual and industrial property and the duty of confidentiality, respectively.

The Council estimates the claim — excluding, if any, the information relating to the technical, economic or financial aspects provided by the company in the negotiation process — showing that what is requested is not access to the information provided by the laboratory in the negotiation, but only the financing price approved by the National Health System. Likewise, the application of the limit provided for in article 14.1.j) LTAIBG is ruled out, since the damage to professional secrecy and intellectual property has not been justified, and that of the limit of article 14.1.k) LTAIBG since the disclosure of the resolution that publishes the final price of the drug (and not the documents provided by the pharmaceutical company for its negotiation) has not affected confidentiality, having concluded the process of negotiation and authorization of the drug. It is recalled that the provision of confidentiality contained in article 97. 3 TRLGURMPS provides for a confidentiality clause regarding the information that, for the purpose of pricing, the pharmaceutical laboratories provide to the General Administration of the State on the technical, economic and financial aspects; which is not the information requested (final price of the drug).