Contracting information should not be confidential unless there is a sound reason, informed by legal principle, for maintenance of the confidentiality of that information. Where information is determined to be confidential61, the contract should contain appropriate confidentiality clauses. In addition, contract managers must ensure that confidential information is appropriately handled and protected and that confidentiality provisions are reported correctly on AusTender.62 Australian Government entities are subject to a number of obligations whereby they are required to disclose information, regardless of any contractual obligations to maintain confidentiality. Disclosure obligations, which should be reflected by appropriate clauses in the contract, include: • an entity may be required to disclose information to Parliament, its committees or the Auditor General to comply with accountability obligations; • under the Freedom of Information Act 1982 (FOI Act), a person can request access to information held by an entity. Unless the information is subject to one of the exemptions set out in the FOI Act, the entity will be obligated to disclose it; and • an entity will be required to disclose discoverable information which is relevant to a case before a court. | Contracting information should not be confidential unless there is a sound reason, informed by legal principle, for maintenance of the confidentiality of that information. |
Contract managers should ensure that the contract contains clauses providing for the protection and handling of confidential information. Where information is identified in the contract as being confidential, contract managers should ensure that it is appropriately handled and protected. For entities subject to the CPGs, certain criteria must be met in order for information to be treated as confidential.63 As a general principle, contracts should provide for access to contract-related information by the Parliament and its committees. | Contract managers should ensure that the contract contains clauses providing for the protection and handling of confidential information. |
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61 For entities subject to the CPGs, certain criteria must be met before a contractor's information can be determined confidential. Criteria and guidance on the confidentiality of contractors' commercial information can be accessed from the Department of Finance and Deregulation website, <http://www.finance.gov.au/procurement/>, Confidentiality throughout the Procurement Cycle guide.
62 For further guidance see the Department of Finance and Deregulation website, <http://www.finance.gov.au/ procurements, Additional Reporting on Confidentiality guide. Contract listings placed on agency websites in accordance with the Senate Order for Departmental and Agency Contracts also requires, among other things, the identification of contracts that contain confidential information.
63 Criteria and guidance on the confidentiality of contractors' commercial information can be accessed from the Department of Finance and Deregulation website, <http://www.finance.gov.au/procurementt/>, Confidentiality throughout the Procurement Cycle guide. Contract listings placed on agency websites in accordance with the Senate Order for Departmental and Agency Contracts requires, among other things, the identification of contracts that contain confidential information.