The need for transparency and disclosure should be balanced against the legitimate interests of the Private Partner and the Contracting Authority in keeping certain information related to a PPP Project confidential.
In the context of a PPP Project, confidential information is typically information the disclosure of which would be likely to prejudice a party's commercial interests. This will include information contained in the PPP Contract terms or supporting documents, such as trade secrets, commercially sensitive intellectual property rights and know-how and personal data. Key financial information, such as pricing elements and methodology and the Private Partner's financial model, including details of the costs of financing through debt and equity and other aspects, are also typically treated as confidential information. See Section 7.3, Sample Drafting 7, Clause (6). From the Contracting Authority's perspective, confidential information will include information which it is not in the public or national interest to disclose (e.g. defense, national security and custodial matters).
Confidential information in the context of a PPP Project should be the exception rather than the rule and should be justified by reference to principles of confidentiality in applicable underlying transparency and disclosure policies and legislation. Concerns relating to particular information should be addressed specifically in the drafting. Any disclosure of such information should be clearly justified and made in accordance with the terms of the confidentiality provisions in the PPP Contract. Certain categories of information are typically excluded from confidentiality undertakings, such as information already in the public domain or received legitimately from another source. Confidentiality undertakings also do not usually apply where a Party is obliged to disclose information, for example as part of a legal, regulatory or judicial process.