[84.1 to 84.4]
Required drafting (see Section 26 of SoPC4) as follows:
84.1 The Parties agree that the provisions of this Contract and each Ancillary Document162 shall, subject to Clause 84.2 below, not be treated as Confidential Information and may be disclosed without restriction.
84.2 Clause 84.1 above shall not apply to provisions of this Contract or a Ancillary Document163 designated as Commercially Sensitive Information and listed in Part 1 and Part 2 of Schedule 23 (Commercially Sensitive Information) to this Contract164 which shall, subject to Clause 84.4 below, be kept confidential for the periods specified in Part 1 and Part 2 of Schedule 23 (Commercially Sensitive Information).165 The Parties agree that the provisions of the Waste Law List shall not be regarded as Commercially Sensitive Information.
84.3 The Parties shall keep confidential all Confidential Information received by one party from the other party relating to this Contract and Ancillary Documents or the Project and shall use all reasonable endeavours to prevent their employees and agents from making any disclosure to any person of any such Confidential Information.
84.4 Clauses 84.2 and 84.3 shall not apply to:
84.4.1 any disclosure of information that is reasonably required by any person engaged in the performance of their obligations under the Contract for the performance of those obligations;
84.4.2 any matter which a party can demonstrate is already or becomes generally available and in the public domain otherwise than as a result of a breach of this Clause;
84.4.3 any disclosure to enable a determination to be made under the Dispute Resolution Procedure or in connection with a dispute between the Contractor and any of its subcontractors;
84.4.4 any disclosure which is required pursuant to any statutory, legal (including any order of a court of competent jurisdiction) or Parliamentary obligation placed upon the party making the disclosure or the rules of any stock exchange or governmental or regulatory authority having the force of law or if not having the force of law, compliance with which is in accordance with the general practice of persons subject to the stock exchange or governmental or regulatory authority concerned;
84.4.5 any disclosure of information which is already lawfully in the possession of the receiving party, prior to its disclosure by the disclosing party;
84.4.6 any provision of information to the Parties' own professional advisers or insurance advisers or to the Senior Lenders or the Senior Lenders' professional advisers or insurance advisers or, where it is proposed that a person should or may provide funds (whether directly or indirectly and whether by loan, equity participation or otherwise) to the Contractor to enable it to carry out its obligations under the Contract, or may wish to acquire shares in the Contractor [and/or Holdco] in accordance with the provisions of this Contract to that person or their respective professional advisers but only to the extent reasonably necessary to enable a decision to be taken on the proposal;
84.4.7 any disclosure by the Authority of information relating to the design, construction, operation and maintenance of the Project and such other information as may be reasonably required for the purpose of conducting a due diligence exercise, to:
(a) any proposed new contractor, its advisers and lenders, should the Authority decide to retender the Contract; or
(b) any person in connection with Clause 34 (Market Testing);
84.4.8 any registration or recording of the Consents166 and property registration required;
84.4.9 any disclosure of information by the Authority to any other department, office or agency of the Government or their respective advisers or to any person engaged in providing services to the Authority for any purpose related to or ancillary to the Contract; or
84.4.10 any disclosure for the purpose of:
(a) the examination and certification of the Authority's or the Contractor's accounts;
(b) any examination pursuant to the 1999 Act of the economy, efficiency and effectiveness with which the Authority has used its resources;
(c) complying with a proper request from either party's insurance adviser, or insurer on placing or renewing any insurance policies; or
(d) (without prejudice to the generality of Clause 84.4.4 above) compliance with the FOIA and/or the Environmental Information Regulations,
provided that, for the avoidance of doubt, neither Clause 84.4.2 nor Clause 84.4.10(d)) above shall permit disclosure of Confidential Information otherwise prohibited by Clause 84.3 above where that information is exempt from disclosure under section 41 of the FOIA;
84.4.11 where disclosure is permitted under Clause 84.4, other than Clauses 84.4.2, 84.4.4, 84.4.5, 84.4.8 and 84.4.10, the party providing the information shall procure that the recipient of the information shall be subject to the same obligation of confidentiality as that contained in this Contract; or
84.4.12 any disclosure by the Authority to any WCAs.
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162 See definition.
163 Clauses 84.1
164 Authorities should keep this exemption strictly limited and should be mindful of FOIA and OGC guidance (see the Freedom of Information (Civil Procurement) Guidance on the OGC website at www.ogc.gov.uk) when agreeing what parts of the documents should be treated as Commercially Sensitive Information. Proper due diligence is required here in order to avoid the Authority being in a position where it is required to disclose information under FOIA which has been designated as Commercially Sensitive.
165 Authorities should keep this exemption strictly limited and should be mindful of FOIA and OGC guidance when agreeing what parts of the documents should be treated as Commercially Sensitive Information. Proper due diligence is required here in order to avoid the Authority being in a position where it is required to disclose information under FOIA which has been designated Commercially Sensitive.
166 For example, any planning permission application.