On 9 November 2021, a Chilean woman requested the Undersecretariat of Public Health copy of the vaccines' patents, the details of each of their components, information on their origin and common uses, their usual uses, as well as what function they fulfill in the formula of each of the vaccines. The claimant also asked whether there had been any changes in the composition of each of the vaccines for SARS-CoV-2 that have been used in Chile and the information on each component.
By email of 22 April 2022, the company that develops the vaccines – in its capacity as the sanitary representative responsible for the application for emergency use and local distribution of the vaccine – opposed the request, arguing that the requested information is not public and is of a strategic commercial nature, so that its publication could affect it economically vis-à-vis third parties and competitors.
By Amparo Decision Rol. C9436-21, adopted on 17 May 2022, the Council for Transparency partially accepted the amparo for denial of access to information filed by the woman, requiring the Undersecretariat of Public Health to disclose a copy of the vaccines’ patents that are being applied for study at the national level, the details of each of their components, information on their origin and their usual uses, and the information on the origin and usual uses of the vaccines, as well as information on whether there have been changes in the composition of the vaccines.
Following the decision, the requesting party filed a complaint for the protection of her right of access to public information against MINSAL in accordance with Article 24 the Transparency Law. By decision Rol. 268-2022 of 3 January 2023, the Constitutional Court in Santiago upheld the claimant’s request. The Court considered that the legislator has expressly provided that any information in the possession of public administrations – whatever its origin or format – must be considered public, unless it is subject to exceptional grounds of confidentiality or secrecy established in the law as required by Article 8, second paragraph of the Political Constitution of the Republic. Exceptions to the general principle of publicity must be interpreted restrictively and supported by adequate evidence. It is not sufficient to merely invoke or reference to such grounds, in merely formal terms, but it is necessary to determine whether or not the publication of the information in question affects any of the legal interests set out in Article 8 of the Political Constitution of the Republic.
In the case at stake, the Court has found that the requested information does not affect the commercial and economic rights of the claimant, and therefore the grounds for secrecy or confidentiality invoked in Article 21 N° 2 of the Transparency Law do not apply. In particular, the publicity of the information requested does not affect the commercial and economic rights of the company and, therefore, there is no cause of reserve of Article 21 N° 2 of the Transparency Law.
