Slovenian Information Commissioner has granted partial access to the contract on supplying the vaccine for pandemic flu

Source: Slovenian Information Commissioner

http://www.ip-rs.si/index.php?id=272&tx_ttnews[tt_news]=784&cHash=c7e0833fbf

Date: January 22, 2010

Information Commissioner has granted the appeal of the journalist Jure Bračko, Pop TV against the decision of Ministry of Health of the Republic of Slovenia by which it denied the journalist’s request to get access to the contract on supplying the vaccine for pandemic flu.

The Commissioner had to establish in his decision making process whether the requested contract represents a business secret or whether the public interest for disclosing parts of the document overrides. Furthermore it was necessary to establish whether the contract includes information which is public by law. Namely every person, entering a contract with the state, needs to be ready to become subjected to a special regime in concluding contracts. Thus, when entering a contract with the sate the suppliers need to be aware that according to statutory provisions, it is impossible to expect total protection of their business secrets.

The Commissioner established that the document was properly marked as business secret in accordance with the Companies Act, however, in this case it was necessary to find out whether the agreement contained the data which could not be treated as business secret according to the Companies Act.

According to the European legislation, the components of the medicinal product, which has received marketing authorisation by the European Medicines Agency and has obtained the European Public Assessment Report (herein after: EPAR) cannot represent a business secret, since the Regulation (EC) No. 726/2004 of the European Parliament and the Council, Art. 13 of March 31, 2004 on the procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency stipulates that the information must be made public.
 
Also, exemptions from business secret can not be made for the data on financial conditions, data on time schedule of payments, data on the unit price for the vaccine which the body will cover from public funds, since these are the data on the use of public funds, and are defined as public according to the Slovenia’s Access to Public Information Act. The Commissioner explains that the data on total contractual value alone can not ensure adequate public control, pursued by the institution of transparency, i.e. promotion and ensuring effective and fair competition and cost-effective use of public funds. The latter can be achieved only by allowing the public to access above mentioned information. Only with complete information, it is possible to ensure an efficient control over the use of public funds.

Since the Commissioner established that part of the contract represents business secret, the Commissioner had to assess whether the public interest for disclosing this part of the document is stronger than the interest for which these information has been protected as business secret. Public interest for disclosing information is, for example, very strong in situations which concern obtaining or spending public funds, public security, public health, responsibilities and transparency of decision making which trigger public or parliamentary debates.

In Slovenia, as well as in Europe, the supply of the vaccine against pandemic flu H1N1 triggered numerous concerns and dilemmas. This issue was the subject of debate among professional institutions, the media, as well as among the broader public. Those who have already been vaccinated or are planning to do so, have the right to receive complete information whether the vaccine is safe and what responsibilities for the supply of this vaccine the state will take by this agreement, considering that the state will potentially take financial obligations which consequently means spending taxpayer’s money. The question about the responsibility of the state in such a delicate problem as public health can never be of no public interest, also for the reason that by taking such responsibility further financial consequences for the state budget can be expected, i.e. spending public funds.

Commissioner’s decision is available here.