61.2  Permitted Disclosure178

Clauses 61.1.2 and 61.1.3 (Duty of Confidentiality) shall not apply to:

(a)  any disclosure of information that is reasonably required by any person engaged in the performance of their obligations under this Agreement for the performance of those obligations;

(b)  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 61 (Freedom of Information and Confidentiality);

(c)  any disclosure to enable a determination to be made under the Dispute Resolution Procedure or in connection with a dispute between the Contractor or any of its sub-contractors;

(d)  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;

(e)  any disclosure of information which is already lawfully in the possession of the receiving party, prior to its disclosure by the disclosing party;

(f)  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 [and/or Holdco] to enable it to carry out its obligations under this Agreement, or may wish to acquire shares in the Contractor [and/or Holdco] in accordance with the provisions of this Agreement 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;

(g)  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:

(i)  any proposed new contractor, its advisers and lenders should the Authority decide to re-tender this Agreement; or

(ii)  any person in connection with clause 27 (Market Testing);

(h)  any registration or recording of the Necessary Consents179 and property registration required;

(i)  any disclosure of information by the Authority to any other department, office or agency of the Government or their respective advisors or to any person engaged in providing services to the Authority for any purpose related to or ancillary to the Agreement; and

(j)  any disclosure for the purpose of:

(i)  the examination and certification of the Authority's or the Contractor's accounts; or

(ii)  any examination pursuant to the 1999 Act of the economy, efficiency and effectiveness with which the Authority has used its resources; or

(iii)  complying with a proper request from either party's insurance advisers or insurers on placing or renewing any insurance policies; or

(iv)  (without prejudice to the generality of clause 61.2.4 above) compliance with the FOIA and/or the Environmental Information Regulations.

provided that, for the avoidance of doubt, neither clauses 61.2.10(d) (Permitted Disclosure) or 61.2.4 (Permitted Disclosure) above shall permit disclosure of Confidential Information otherwise prohibited by clause 61.1.3 (Duty of Confidentiality) above where that information is exempt from disclosure under section 41 of the FOIA.

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178  References to any other public body participates if the Facility is a joint facility may be required to enable a permitted disclosure by that body.

179  For example, any planning permission application.