A disclosure and transparency provision typically deals with how all announcements relating to the PPP Contract and the PPP Project are to be managed. The Contracting Authority will want to control how all information relating to the PPP Project is publicly communicated and will require prior approval of any media announcements and communications. See Section 7.3, Sample Drafting 7, Clauses (1) and (2).
Some jurisdictions (for example, Belgium) may not address public communications in the way outlined in Section 7.3, Sample Drafting 7 and may simply treat the information as confidential and require the Contracting Authority's prior consent to press releases and other public announcements by the Private Partner.
In jurisdictions with disclosure frameworks it has also become best practice to require the posting of important project and contract information in the public domain. The Contracting Authority may therefore also want to ensure that it has the right under the PPP Contract to make public the terms of the PPP Contract as well as related information (subject to applicable confidentiality restrictions) by its preferred means. This may include publishing on the internet. The level of information available for it to disclose regarding the progress of the PPP Project will be dependent upon the Private Partner's compliance with reporting provisions elsewhere in the PPP Contract which oblige the Private Partner to disclose certain information (such as performance data) to the Contracting Authority. See Section 7.3, Sample Drafting 7, Clauses (3)-(5).
While some Contracting Authorities may not specifically be required to publish the PPP Contract by legislation, in both common and civil law jurisdictions the public are increasingly using FOI legislation to gain insight into the terms of PPP Contracts. Specific provision can be made in the PPP Contract in this regard although some Contracting Authorities use less extensive clauses than Section 7.3, Sample Drafting 7, and, for example, may rely on the carve out under Section 7.3, Sample Drafting 7, Clause (9)(d) so far as it relates to responding to requests under freedom of information legislation and other statutory disclosure obligations.