Covid-19 vaccine contracts must be disclosed

Between 2020 and 2022, the Federal Office of Public Health (FOPH) and the Armed Forces Pharmacy concluded a number of contracts with various manufacturers for the procurement of Covid-19 vaccines. Numerous applicants requested disclosure of the contracts. The Federal Data Protection and Information Commissioner (FDPIC) recommended that access to the requested sections be largely granted. Notwithstanding, the FOPH ruled that no further information about prices, delivery terms, places of jurisdiction, etc. would be disclosed. Three private individuals lodged appeals with the Federal Administrative Court (FAC) against two of these rulings dated 22 December 2023 concerning Novavax Inc., Moderna Tx. Inc., and Moderna Switzerland GmbH.

No grounds for exception stated
The Freedom of Information Act provides for various exceptions. If one of these exceptions applies, right of access to the requested document is restricted, deferred or refused. The FOPH based its ruling on three grounds for exception. It argued that the disclosure (1) would obstruct an authority from achieving the intended objectives when taking specific measures; (2) may affect Switzerland’s interests in matters of foreign policy and international relations; and (3) that it may reveal professional, business or manufacturing secrets. The appellants claimed that these grounds for exception were not justified, and that they should be granted access to the information to the extent requested in each case.

In its judgments, the Federal Administrative Court stated that granting access would not, with any significant likelihood, impede an existing specific measure from achieving its intended objectives. After all, in the event of a new pandemic, new negotiations would have to be conducted under new circumstances anyway. There was also nothing to suggest that the disclosure of the documents was liable to affect Switzerland's interests in matters of foreign policy, or its international relations and reputation. Furthermore, the existence of an objective interest in maintaining confidentiality with regard to the information at issue, namely the agreed prices, delivery terms, places of jurisdiction, etc., had not been demonstrated. The price indications could not be used for pricing calculations. Moreover, the FOPH did not substantiate how information about the prices and order quantities at that time might still be relevant in today's market. Consequently, the Court upholds the three appeals and grants the appellants access to the contracts to the extent requested in each case.

These judgments may be appealed to the Federal Supreme Court.