Document Type
Report
English Abstract
Freedom of Information Requests (FOIRs) provide the window of access to COVID-19 vaccine supply contracts in times of crisis, yet for COVID-19 supply contracts, FOIRs have recorded limited success due to barriers which have either been legal, institutional, political or a combination of all of these. Despite State’s commitment to freedom of information and open contracting at both the national and international level, the urgency to procure vaccines led many countries to prioritize public health goals over protecting the public’s right of access to information. This empirical study examines freedom of information requests related to COVID-19 vaccine supply contracts to understand the legal, political, and instructional strategies that enabled the regime of vaccine secrecy and assesses the human rights implications using a human rights impact assessment (HRIA) framework.
Citation Information
Ojiako, Chiamaka and Ngwaba, Uchechukwu.
"Mapping of Freedom of Information Requests (FOIRs) for the Publication of COVID-19 Vaccine Supply Contracts."
The Transnational Human Rights Review
9. (2022)
: 93-131.
DOI: https://doi.org/10.60082/2563-4631.1102
https://digitalcommons.osgoode.yorku.ca/thr/vol9/iss1/4
References
1 This study was funded by a Grant awarded to the authors by Transparency International in 2022.
2 Lawyer and Health Policy Professional, MPA, LLB, BL.
3 Assistant Professor, Lincoln Alexander School of Law, Toronto Metropolitan University, Toronto, Canada; LLB, BL, LLM, DipLaw, PhD.
4 J Holder, J, "Tracking coronavirus vaccinations around the world" (29 January 2021), accessed (20 June 2022) online; https://www.nytimes.com/interactive/2021/world/covid-vaccinations-tracker.html; COVID-19 Market Dashboard, online: https://www.unicef.org/supply/covid-19-market-dashboard.
5 Larry Gostin & Jonathan M. Mann, "Towards the Development of a Human Rights Impact Assessment for the Formulation and Evaluation of Health Policies" (1994) 1:1 Health & Hum Rts 58. https://doi.org/10.2307/4065262
6 Open Contracting Initiatives are commitments, principles and contracting data standards that governments, international bodies and institutions have endorsed for government transparency in public procurement to foster participation between public bodies, businesses and civil society. See L Amin, "Making the case for open contracting in Healthcare Procurement" (January 2017) Transparency International Global Health, online: https://tihealth.org/content/making-case-open-contracting/ .
7 Europe Commission, United Kingdom, Albania, Slovakia, Hungary, Brazil, Chile, Mexico, Argentina, Panama, El Salvador, Guatemala, Colombia, Dominican Republic, Peru, China, Israel, Pakistan, Philippines, South Africa, Canada, United States, Australia.
8 Amartya Sen, Inequality Reexamined (Oxford University Press, 1992).
9 Ibid; cited in Jennifer Prah Ruger, "Toward a Theory of a Right to Health: Capability and Incompletely Theorized Agreements" (2006) 18(2) YJLH 1 at 13.
10 Ibid.
11 Holder supra note 4.
12 I Lozovsky, "In Europe's scramble to buy COVID-19 supplies, anti-corruption measures fall away" (21 April, 2020) OCCRP, online; https://www.occrp.org/en/coronavirus/in-europes-scramble-to-buy-COVID-19-suppliesanti-corruption-measures-fall-away.
13 Centre for Global Development, The Principles on Commercial Transparency in Public Contracts: Working Group on Commercial Transparency in Public Contracts. (2019), online: https://www.cgdev.org/sites/default/files/principles-commercial-transparency-public-contracts.pdf.
14 UNODC, Covid-19 Vaccines and Corruption Risks: Preventing Corruption in the Manufacture, Allocation and Distribution of Vaccines (Policy Paper, December 2020), online: https://www.unodc.org/documents/corruption/COVID-19/Policy_paper_on_COVID19_vaccines_and_corruption_risks.pdf ; Communication from the European Commission, Guidance from the European Commission on using the public procurement framework in the emergency related to the COVID-19 crisis 63 (1 April 2020), OJEU (2020/C 108 I/01) 1 at 1-5.
15 M Apuzzo, & S Gebrekidan "Governments sign secret vaccine deals. Here's what they hide" (28 January 2021) The New York Times, online: https://www.nytimes.com/2021/01/28/world/europe/vaccinesecret-contracts-prices.html.
16 Karen Hussmann, "Global access to Covid-19 vaccines: Lifting the veil of opacity" 2021:12 U4 Anti-Corruption Resource Centre, online: https://reliefweb.int/sites/reliefweb.int/files/resources/lifting-the-veil-of-opacity-in-covid19-vaccines-to-combat-the-pandemic.pdf.
17 "For whose benefit? transparency in the development and procurement of COVID-19 vaccines" (Policy Brief, May 2021), online: https://ti-health.org/wp-content/uploads/2021/05/For-Whose-Benefit-summary-TransparencyInternational-Global-Health.pdf.
18 EJ Emanuel et al., "What are the obligations of pharmaceutical companies in a global health emergency?" (2021) 398:10304 Lancet 1015-20, online: https://doi.org/10.1016/S0140-6736(21)01378-7. https://doi.org/10.1016/S0140-6736(21)01378-7
19 B Telford, L Hoemeke & J Barnes-Weise, "The global covid-19 contract conundrum: Think global health" (8 December 2021), online: https://www.thinkglobalhealth.org/article/global-covid-19-contract-conundrum ; CE Wagner et al.,"Vaccine nationalism and the dynamics and control of SARS-CoV-2" (2021) 373:6562 Science https://doi.org/10.1126/science.abj7364.
20 SS Bajaj, L Maki and FC Stanford, "Vaccine apartheid: global cooperation and equity" (2022) 399:10334 Lancet. 1452. https://doi.org/10.1016/S0140-6736(22)00328-2
21 L Stein & L Camai "Freedom of Information" (2018) Oxford Research Encyclopedia of Communication, online: https://oxfordre.com/communication/view/10.1093/acrefore/9780190228613.001.0001/acrefore9780190228613-e-97. https://doi.org/10.1093/acrefore/9780190228613.013.97
22 Maximum Disclosure: Secrecy in COVID-19 Vaccine Contracts and Other Shortcomings of Colombia's Vaccine Rollout (Briefing Paper, 2021), online,: https://opiniojuris.org/2021/08/02/covid-19-and-courts-symposiummaximum-disclosure-colombian-tribunal-leads-way-in-ensuring-transparency-over-covid-19-vaccine-contracts/.
23 According to a UNESCO report, about 125 countries have adopted Freedom of Information (FOI) or similar laws which establish rights and procedures for accessing information. See UNESCO "Powering Sustainable Development with Access to Information: Highlights From the 2019 UNESCO Monitoring and Reporting of SDG Indicator 16.10.2", online: https://unesdoc.unesco.org/ark:/48223/pf0000369160.
24 UNESCO, Toby Mendel and Laura Notess "The Right to Information in Times of Crisis: Access to Information - Saving Lives, Building Trust, Bringing Hope!" (2020), online: https://unesdoc.unesco.org/ark:/48223/pf0000374369.
25 M Davies et al, "'Held to ransom': Pfizer demands governments gamble with state assets to secure vaccine deal" (23 February 2021) online: https://www.thebureauinvestigates.com/stories/2021-02-23/held-to-ransom-pfizerdemands-governments-gamble-with-state-assets-to-secure-vaccine-deal.
26 R Radu, "Fighting the 'Infodemic': Legal Responses to COVID-19 Disinformation" (2020) Soc. Media Soc., online: https://doi.org/10.1177/2056305120948190. https://doi.org/10.1177/2056305120948190
27 To preserve the anonymity of our interview subjects, we refer to them in numeric terms, maintaining a specific number for each interview subject. We have also offered only a general description of the background of respondents to give a good sense of their subject matter expertise without disclosing their identity; Respondent One (R1) works in a civil society organisation in South Africa dedicated to seeking mandatory disclosure of information, and whose work has specifically dealt with seeking disclosure of COVID-19 vaccine contracts.
28 Z Rizvi, "Pfizer's power" (19 October 2021), online: https://mkus3lurbh3lbztg254fzode-wpengine.netdnassl.com/wp-content/uploads/Pfizer-power-Oct-19-final-1.pdf.
29 All respondents who were asked this question shared similar views.
30 J Deutsch "Commission: AstraZeneca's plan to publish vaccine contract coming Friday" (28 January 2021) POLITICO, online: https://www.politico.eu/article/commission-astrazeneca-to-make-proposal-topublish-vaccine-contract-friday/.
31 Because of the secrecy surrounding the terms of these contracts, our respondents could only speculate on what must have happened behind the scenes or what has been hidden in the redacted contracts that were released to the public in some countries.
32 A. DSo, & J Woo, "Reserving coronavirus disease 2019 vaccines for Global Access: Cross Sectional Analysis" (15 December 2020) BMJ, online: https://www.bmj.com/content/371/bmj.m4750. https://doi.org/10.1136/bmj.m4750
33 Respondent Two (R2) leads a Global Health Policy Program in the United States of America.
34 Person "South Africa to pay $5.25 a dose for AstraZeneca vaccine from India's SII" (21 January 2021), online: https://www.reuters.com/business/healthcare-pharmaceuticals/south-africa-pay-525-dose-astrazeneca-vaccineindias-sii-2021-01-21/. 35 A.de Bengy Puyvallée and K.T. Storeng, "COVAX, vaccine donations and the politics of global vaccine inequity" (2022) Global Health 18 at 26.
36 K Eban, "We are hoarding": Why the U.S. still can't donate covid-19 vaccines to countries in need" (6 April 2021) Vanity Fair, online: https://www.vanityfair.com/news/2021/04/why-the-us-still-cant-donate-covid-19-vaccines-tocountries-in-need.
37 Ibid 28.
38 R Gestión, "Covid-19 Vaccine: Minsa will only publish information that does not affect confidentiality with Laboratories" (16 January 2021) Emergency Decree 003-2021.
39 Article 74 of the Political Constitution of Colombia.
40 International Institute of Anticorruption Studies (Instituto Internacional de Estudios Anticorrupción) v The National Unit for Disaster Risk Management (Unidad Nacional de Gestión del Riesgo de Desastres, 2021-05-081 R1 (Recurso de insistencia), online: https://www.covid19litigation.org/case-index/colombia-council-state-no-11001-03-15-0002021-03032-00-2021-07-19).
41 All respondents who were asked this question reached largely similar conclusions on this point.
42 Respondent Three (R3) works in a senior capacity at a global organisation dedicated to research, education, and advocacy in global health.
43 Respondent Four (R4) works in the same organisation as Respondent 3 and they were interviewed together.
44 Respondent Five (R5) works for a global organisation dedicated to promoting transparency and accountability in the public sector and has worked extensively in coordinating a global action plan for securing FOIRs onCOVID-19 vaccine supply contracts. 45 Respondent Six (R6) works in a global organisation dedicated to promoting values around transparency and openness in contract negotiations.
46 Although this concern is mostly limited to low-and middle-income countries and not high-income countries who are host-countries of the leading pharmaceutical companies in the world.
47 The United State and South Africa are two jurisdictions where we observed the ready engagement of a legal strategy in circumventing restrictions to information about COVID-19 vaccine supply contracts. There are also some Latin American countries where this strategy has been engaged.
48 Ibid 40.
49 European Parliament, "Covid-19: Parliament wants more transparent EU vaccine policies: News: European parliament" (21 October 2021), online: https://www.europarl.europa.eu/news/en/pressroom/20211014IPR14927/covid-19-parliament-wants-more-transparent-eu-vaccine-policies.
50 The Freedom of Information Law mandates response to FOIRs within 20 days and an additional extension not exceeding 10 days, online: http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/Mpv/mpv928.htm.
51 OLM Ferraz et al, 'Brazil: Legal Response to Covid-19', in Jeff King and Octávio LM Ferraz et al (eds), The Oxford Compendium of National Legal Responses to Covid-19 (OUP 2021). 52 The media has engaged in investigative journalism to reveal some of the behind-the-scenes events that exposed the regime of secrecy. A Taylor, "In secret vaccine contracts with governments, pfizer took hard line in push for profit, report says" (20 October 2021) The Washington Post https://www.washingtonpost.com/world/2021/10/19/secret-vaccine-contracts-with-governments-pfizer-took-hardline-push-profit-report-says/; Adriaan Alsema, "Emergency talks in Colombia after Covid vaccine deals leaked" (12 August 2021) Colombia Reports, online: https://colombiareports.com/emergency-talks-in-colombias-aftercovid-vaccine-deals-leaked/; Reuters "Leaked EU-Pfizer contract shows price for Covid vaccines set at 15.5 euros per dose" (21 April 2021), online: https://www.reuters.com/article/health-coronavirus-eu-pfizer/leaked-eu-pfizercontract-shows-price-for-covid-vaccines-set-at-15-5-euros-per-dose-idUSL1N2ME0Z5.
53 T McIntosh "How to investigate COVID-19 vaccine contracts" ( 13 July 2021) Global Investigative Journalism Network, online; https://gijn.org/2021/02/04/how-to-investigate-covid-19-vaccine-contracts/.
54 Amartya Sen, Inequality Reexamined (Oxford University Press, 1992).
55 Respondent Seven (R7) is the Head of Advocacy in a global organisation dedicated to promoting values around transparency and openness in contract negotiations.
56 Erin Webb et al, "What are the implications of policies increasing transparency of prices paid for pharmaceuticals? A primer for understanding the policy perspective in light of the empirical evidence" (2022) European Observatory on Health Systems and Policies, World Health Organization. Regional Office for Europe, online; https://apps.who.int/iris/handle/10665/354271.
57 The Freedom of Information Law mandates response to FOIRs within 20 days and an additional extension not exceeding 10 days, online: http://www.planalto.gov.br/ccivil_03/_ato2019-2022/2020/Mpv/mpv928.htm.
58 R Gestión, Covid-19 Vaccine: Minsa will only publish information that does not affect confidentiality with Laboratories, Emergency Decree 003-2021 (January 16 2021).
59 I, Nikolic et al, "Central and eastern europe freedom of information rights 'postponed'" (4 June 2020) Balkan Insight, online: https://balkaninsight.com/2020/04/06/central-and-eastern-europe-freedom-of-information-rightspostponed/.
60 By virtue of criteria CT -957-20 and CT-952-20.
61 "Monitoring and Reporting of SDG Indicator 16.10.2", online: https://unesdoc.unesco.org/ark:/48223/pf0000369160.
62 In our interview, R1 repeatedly characterised the contract which pharmaceutical companies negotiated with countries for the supply of COVID-19 contract as giving rise to a hostage situation.
63 Respondent 8 (R8) is a global institution that was involved in COVID-19 vaccine procurement and distribution.
64 C Caduff "What Went Wrong: Corona and the World after the Full Stop" (2020) 34:4 Med Anthropol Q. 467 https://doi.org/10.1111/maq.12599 ; LO Gostin "The Coronavirus Pandemic 1 Year On-What Went Wrong?" (2021) 325:12 JAMA 1132 https://doi.org/10.1001/jama.2021.3207 ; Rohit C Khanna et al, "COVID-19 pandemic: Lessons learned and future directions" (2020) 68:5 Indian Journal of Ophthalmology https://doi.org/10.4103/ijo.IJO_843_20.
65 OJ Wouters et al, "Challenges in ensuring global access to COVID-19 vaccines: production, affordability, allocation, and deployment" (2021) 13:397(10278) Lancet 1023 https://doi.org/10.1016/S0140-6736(21)00306-8 ; S Sciacchitano and A Bartolazzi "Transparency in Negotiation of European Union with Big Pharma on COVID-19 Vaccines" (18 February 2021) 9:647955Front Public Health. https://doi.org/10.3389/fpubh.2021.647955
66 See the discussion in Section IV of this study.
