31.9.1 Stock Exchanges have publicity requirements with which listed companies are required to comply. Companies raising finance through capital markets (e.g. through bond issues), in particular, must disclose details of contracts and related documents. There are some exceptions to disclosure requirements, for example, where national security would be prejudiced. These types of disclosure requirements should be taken into account, particularly if it is anticipated that a bond issue will take place to refinance the project after contract signature.
31.9.2 Authorities should recognise in any event that attempts by the private sector and financial community to keep contractual terms confidential are to some extent cosmetic, as details of signed contracts will often become known over time. The advantage of greater openness on the public sector side is that Authorities planning projects should benefit similarly from gaining knowledge of positions agreed by Contractors and financiers on projects similar to those planned and to gain the benefits of competition; there is accordingly some advantage in making positions known. If there is a public offering or wide syndication, the prospectus or information memorandum will usually contain a great deal of detail on the contents of the Contract and other documents.
31.9.3 Contractors should note that the National Audit Office will require access to all relevant information from the Contracts which it requires for its audit purposes, irrespective of whether it is confidential or sensitive. The National Audit Office may also publish any information (including key contract terms, the contract price and results of bid evaluations) in its reports to Parliament. The 31.9.1 Contract should ensure that the Comptroller and Auditor General is entitled to examine the Contractor's records.
31.9.4 The Authority should make it a condition of its becoming involved in the underlying financing (such as entering into the Funders' Direct Agreement) that the Authority is entitled to receive from the Contractor a copy of any information memorandum, prospectus or other similar document containing information relating to the project.
Required drafting is as follows:
31.9 Confidentiality
(a)
(i) The parties agree that the provisions of this Contract and each Project Document18 shall, subject to sub-paragraph (ii) below, not be treated as Confidential Information and may be disclosed without restriction and the Contractor acknowledges that the Authority intends to publish, subject to sub-paragraph (ii) below, the Contract and some of the Project Documents on a website.
(ii) Sub-paragraph (i) above shall not apply to provisions of this Contract or a Project Document19 designated as Commercially Sensitive Information and listed in Part I of Schedule [ ] (Commercially Sensitive Information) to this Contract20 which shall, subject to sub-paragraph (b) below, be kept confidential for the periods specified in that Part.
(iii) The parties shall keep confidential all Confidential Information received by one party from the other party relating to this Contract and Project 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.
(iv) The parties agree that the internal rate of return information provided pursuant to Clause 31.2 (h) (iv) above shall not be treated as Confidential Information and the Contractor acknowledges that the government intends to publish such information on a website.
(v) The parties agree that information provided pursuant to Clause 6.1(g) (Ownership Information) in respect of any change in ownership which has actually taken place shall not be treated as Confidential Information.
(b) Paragraphs (a) (ii) and (iii),above shall not apply to:
(i) 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;
(ii) 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;
(iii) any disclosure to enable a determination to be made under Clause 34 (Dispute Resolution) or in connection with a dispute between the Contractor and any of its subcontractors;
(iv) 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;
(v) any disclosure of information which is already lawfully in the possession of the receiving party, prior to its disclosure by the disclosing party;
(vi) 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;
(vii) 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 any proposed new contractor, its advisers and lenders, should the Authority decide to retender the Contract or undertake any market testing.
(viii) any registration or recording of the Consents21 and property registration required;
(ix) 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
(x ) 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 [Section 6(1) of the National Audit Act 1983]22 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 paragraph (b)(iv) above) compliance with the FOIA and/or the Environmental Information Regulations,
provided that, for the avoidance of doubt, neither paragraph (x) (D) nor paragraph (iv) above shall permit disclosure of Confidential Information otherwise prohibited by paragraph (a) (iii) above where that information is exempt from disclosure under Section 41 of the FOIA.
(c) Where disclosure is permitted under paragraph (b), other than paragraphs (ii), (iv), (v), (viii) and (x), 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.
(d) For the purposes of the [National Audit Act 1983 the Comptroller and Auditor General] may examine such documents as he may reasonably require which are owned, held or otherwise within the control of the Contractor and any sub-contractor and may require the Contractor and any sub-contractor to produce such oral or written explanations as he considers necessary. For the avoidance of doubt it is hereby declared that the carrying out of an examination under [Section 6(3) (d) of the National Audit Act 1983] in relation to the Contractor is not a function exercisable under this Agreement.
(e) The Contractor shall not make use of the Contract or any information issued or provided by or on behalf of the Authority in connection with the Contract otherwise than for the purpose of the Contract, except with the written consent of the Authority.
(f) Where the Contractor, in carrying out its obligations under the Contract, is provided with information relating to [people/users e.g. prisoners, patients, pupils], the Contractor shall not disclose or make use of any such information otherwise than for the purpose for which it was provided, unless the Contractor has obtained the prior written consent of that [person/user e.g. prisoner, pupil, patient] and has obtained the prior written consent of the Authority.23
(g) On or before the Expiry Date, the Contractor shall ensure that all documents or computer records in its possession, custody or control, which contain information relating to [people/users e.g. prisoners/patients/pupils] including any documents in the possession, custody or control of a sub-contractor, are delivered up to the Authority.
(h) The parties acknowledge that the [National Audit Office] has the right to publish details of the Contract (including Commercially Sensitive Information) in its relevant reports to Parliament.
(i) The provisions of this Clause 31 are without prejudice to the application of the Official Secrets Acts 1911 to 1989.
"Commercially Sensitive Information"
means [the sub-set of Confidential Information listed in column 1 of Part 1 (Commercially Sensitive Contractual Provisions) and column 1 of Part 2 (Commercially Sensitive Material) of Schedule [ ] (Commercially Sensitive Information) in each case for the period specified in column 2 of Parts 1 and 2 of Schedule [ ].]
means:
(a) information that ought to be considered as confidential (however it is conveyed or on whatever media it is stored) and may include information whose disclosure would, or would be likely to, prejudice the commercial interests of any person, trade secrets, commercially sensitive Intellectual Property Rights and know-how of either party and all personal data and sensitive personal data within the meaning of the Data Protection Act 1988; and
(b) Commercially Sensitive Information.24
"FOIA"
means the Freedom of Information Act 2000 and any subordinate legislation (as defined in section 84 of the Freedom of Information Act 2000) made under the Freedom of Information Act 2000 from time to time together with any guidance and/or codes of practice issued by the information Commissioner or relevant Government Department in relation to such Act.
has the meaning given under Section 84 of the Freedom of Information Act 2000.
"Environmental Information Regulations"
means the Environmental Information Regulations 2004 together with any guidance and/or codes of practice issued by the Information Commissioner or relevant Government Department in relation to such regulations.
means the Freedom of Information and Data Protection (Appropriate Limit and Fees) Regulations 2004.
shall have the meaning set out in the FOIA or the Environmental Information Regulations as relevant (where the meaning set out for the term "request" shall apply).
__________________________________________________________________
18 See definition in Schedule 1.
19 Sub-paragraphs (i) and (ii) deal with the Contract and Project Documents themselves and sub-paragraph (iii) deals with the provision of other information. In each case confidentiality provisions or materials can, subject to [footnote 19 below,] be specified by agreement in a schedule (see definition of Commercially Sensitive Information).
20 Authorities should keep this exemption strictly limited and should be mindful of FOIA and CO 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 as Commercially Sensitive.
21 For example, any planning permission application.
22 The National Audit Office are the auditors for central government. The Audit Commission appoint auditors for local authorities and NHS Trusts in England and Wales (with the Accounts Commission performing the equivalent role to the Audit Commission in Scotland). Where the National Audit Office is not the appropriate auditor, all references to the National Audit Office in Clause 31 should be substituted with a reference to the appropriate auditor.
23 See also Clause 31.3 (Personal Data Protection).
24 Any information or classes of information that the parties agree should be treated as Commercially Sensitive Information should be included in Part 2 of the Schedule entitled Commercially Sensitive Material. The Authority should be mindful of guidance on this issue when agreeing which information should be categorised as commercially sensitive. This can cover specific bid information (for specific periods) but broad blanket categorisations are not appropriate - [see footnote 14above.]