23.  INFORMATION AND CONFIDENTIALITY

23.1.  The parties agree that the provisions of this Agreement shall, subject to clause 23.2, not be treated as Confidential Information and may be disclosed without restriction.

23.2.  Clause 23.1 shall not apply to provisions of this Agreement designated as Commercially Sensitive Information and listed in Part I of Schedule 23 (Commercially Sensitive Information) to this Agreement17 which shall, subject to clause 23.4, be kept confidential for the periods specified in that Part.

23.3.  The parties shall keep confidential all Confidential Information received by one party from the other party relating to this Agreement and shall use all reasonable endeavours to prevent their employees and agents from making any disclosure to any person of any such Confidential Information.

23.4.  Clauses 23.2 and 23.3, shall not apply to:-

23.4.1.  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;

23.4.2.  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 23;

23.4.3.  any disclosure to enable a determination to be made under the Dispute Resolution Procedure;

23.4.4.  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;

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

23.4.6.  any disclosure by the Authority, of information relating to the design, implementation, performance, operation and maintenance of the Services and Assets and such other information as may be reasonably required for the purpose of conducting a due diligence exercise to:

a)  any proposed new Service Provider, its advisers and lenders, should the Authority decide to re-tender this Agreement; or

b)  any person in connection with a benchmarking exercise or market testing; or

23.4.7.  any registration or recording of the Consents and property registration required;

23.4.8.  any disclosure of information by the Authority to any 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 this Agreement;

23.4.9.  any disclosure by the Authority of any document related to this Agreement to which it is a party and which the Service Provider (acting reasonably) has agreed with the Authority contains no Commercially Sensitive Information; and

23.4.10.  any disclosure for the purpose of:-

a)  the examination and certification of the Authority's or the Service Provider's accounts;

b)  any examination pursuant to the 1999 Act of the economy, efficiency and effectiveness with which the Authority has performed its functions;

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 23.4.4) compliance with the FOIA and/or the Environmental Information Regulations.

23.5.  Where disclosure is permitted under clause 23.4, other than under clauses 23.4.2, 23.4.4, 23.4.5, 23.4.7 and 23.4.10 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 Agreement.

23.6.  For the purposes of:

23.6.1.  the examination and certification of the Authority's accounts;

23.6.2.  the Local Government Finance Act 1982 (and any other Legislation relating to the inspection, examination and auditing of the Authority's accounts); and

23.6.3.  an examination pursuant to the 1999 Act of the economy, efficiency and effectiveness of which the Authority has performed its functions,

the District Auditor and the Audit Commission and their appointed external auditors may examine such documents as he or it may reasonably require which are owned, held or otherwise within the control of the Service Provider and any Sub-Contractor and may require the Service Provider and any Sub-Contractor to produce such oral or written explanations as he or it considers necessary.

23.7.  The Service Provider shall not make use of this Agreement or any information issued or provided by or on behalf of the Authority in connection with this Agreement otherwise than for the purpose of this Agreement, except with the written consent of the Authority.

23.8.  Where the Service Provider, in carrying out its obligations under this Agreement, is provided with information relating to [people/users], the Service Provider shall not disclose or make use of any such information otherwise than for the purpose for which it was provided, unless the Service Provider has sought the prior written consent of that [person/user] and has obtained the prior written consent of the Authority.

23.9.  On or before the Expiry Date, the Service Provider shall ensure that all documents or computer records in its possession, custody or control, which contain information relating to users including any documents in the possession, custody or control of a Sub-contractor, are delivered up to the Authority.

23.10.  The parties acknowledge that the Audit Commission has the right to publish details of this Agreement (including Commercially Sensitive Information) in its relevant reports to Parliament.

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17  Authorities should keep this exemption strictly limited and should be mindful of FOIA and OGC guidance (see footnote 1 above) 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.