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Chief Ombudsman’s opinion on OIA complaints about the refusal of Covid-19 vaccine contracts

Opinions
Legislation:
Official Information Act 1982
Legislation display text:
Official Information Act 1982, ss 9(2)(b)(ii), 9(2)(ba)(ii), 9(2)(c)
Ombudsman:
Peter Boshier
Case number(s):
560655,
566252,
569072 et al
Issue date:
Format:
PDF,
Word
Language:
English
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Summary

The Ministry of Health, Minister for COVID-19 Response, and Minister of Finance received multiple OIA requests for copies of the contracts between the Government and pharmaceutical companies for the supply of Covid-19 vaccines. These requests were refused on the grounds that release would unreasonably prejudice the commercial position of the companies, and that the contracts were subject to confidentiality obligations and release would therefore be likely to otherwise damage the public interest (sections 9(2)(b)(ii) and 9(2)(ba)(ii) of the Official Information Act 1982 (OIA)).

The Chief Ombudsman investigated a group of 17 complaints he received about these refusal decisions. He formed the opinion that there were good reasons under sections 9(2)(b)(ii), 9(2)(ba)(ii) and 9(2)(c) of the OIA to refuse the requests for full, or redacted, copies of the contracts, however the public interest in transparency and accountability required the release of summary information in aggregate form which summarises the nature of the commitments made by the Government across all the contracts.

The Ombudsman recommended that the Ministry of Health work with officials from Pharmac and Treasury, and in consultation with the COVID-19 vaccine suppliers, to develop a summary statement for public release by 18 September 2023.

Background

  1. I received complaints from 17 different requesters about the refusal of their requests for copies of, or information from, the Government’s contracts with suppliers of the COVID-19 vaccines. These refusals cited sections 9(2)(b)(ii) and 9(2)(ba)(ii) of the OIA as providing good reason to withhold the information.
  2. These complaints span requests made to the Ministry of Health, the Minister for COVID-19 Response, and the Minister of Finance. The majority of requests were for the contract with Pfizer/Biotech, however there were also requests for copies of the contracts with Janssen, Oxford/AstraZeneca and Novavax.
  3. I have already formed an opinion on the refusal of information about vaccine prices and delivery schedules. This was published as a case note on my website in December 2021.[1] In that opinion, I concluded that section 9(2)(ba)(ii) provided good reason to withhold this information. My opinion on the decisions to withhold the contracts is published in full and deals with the remaining information in the contracts, and does not revisit the withholding of vaccine prices or delivery schedules.
  4. During my investigation, and before providing my final opinion, I reviewed the vaccine supply contracts. I received comments, and additional information from the Ministry of Health, the Minister of Finance and the Minister for COVID-19 Response. [2] I received written comments from the vaccine suppliers about the impact release of these agreements might have, including their views on the release of summary information. I also received comments from the requesters at various stages of my investigation, and in response to my provisional opinion.
  5. Having carefully considered the comments provided from all parties, I formed my final opinion.

Recommendations

I recommend that the Ministry of Health work with officials from Pharmac and Treasury, and in consultation with the COVID-19 vaccine suppliers, to develop a summary statement to cover the following: 

  1. A description of the approach and evaluation steps adopted for potential COVID-19 vaccine purchases, which addresses the use of Advance Purchase Agreements, and explains any differences in approach taken due to the urgency of the circumstances in the context of the global pandemic.
  2. A high level summary of the kinds of terms agreed to across all the contracts in relation to the following issues:
    • Confidentiality commitments
    • Indemnities / exclusions from liability
    • Warranties
    • Safety and efficacy
    • Donations to other nations
    • Clauses relating to supply, and obligations to purchase
    This summary should, as far as possible, include the matters set out in my letter of 22 December 2022 to the Ministry and Ministers.
  3. Clarification on matters of concern raised by the requesters; such as whether any terms sought exclusivity, or to limit New Zealand’s ability to purchase other COVID-19 vaccines or treatments, or whether any terms had the effect of ‘assigning sovereign resources’ or taking state assets as collateral.
  4. The total cost, in aggregate, of the financial liabilities the Government assumed at the point of signing the contracts (these figures were estimated by Treasury in its reports to the Minister of Finance on its assessment of the indemnity requests).

I recommend that the Ministry release this statement directly to the requesters, and publish it on the Ministry’s website by 18 September 2023.

Footnotes

[1] https://www.ombudsman.parliament.nz/resources/requests-vaccine-pricing-and-contracted-delivery-schedules

[2] The separate Ministerial portfolio for COVID-19 Response, last held by Minister Verrall, ceased following the Cabinet reshuffle announced on 31 January 2023. From 1 February 2023, Minister Verrall responded in her capacity as the Minister of Health.

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