The different levels of protection for confidential information in the public and private sectors do not detract from the private sector's concern that doing business with the government will result in public disclosure of information that the private party would otherwise keep confidential. This is partly because of government policy and partly because a contractual obligation to keep information held by government confidential can be overridden through various statutory means.
Contract disclosure policy and project summary requirements are set out in Section 17 of the Partnerships Victoria Requirements. Current government policy is to publish the executed project deed on the Victorian Government tenders website within 60 days of financial close. The private party should be given the opportunity to mark-up parts of the project deed it believes should not be disclosed on the grounds of 'commercial-in-confidence'. The contract management team will need to review these mark-ups to ensure that only material that is genuinely 'commercial-in-confidence' is redacted. More recent project deeds may contain a schedule of commercially sensitive information which sets out the 'commercial-in-confidence' information in the project deed or other project contracts that must be redacted prior to any public disclosure.
The government's policy in relation to contract disclosure (discussed in Appendix E of this guide and in Section 17 of the Partnerships Victoria Requirements) allows 'commercial-in-confidence' information to be withheld from the versions of the project contracts that are disclosed. However, such information may be made public as a result of an application under the FoI Act (see Appendix E of this guide for a detailed discussion of the mechanism for disclosure). The Auditor-General, the Ombudsman, the Independent Broad-based Anti-corruption Commission and parliamentary committees, under their statutory powers and functions, can also access and publish what would otherwise be 'commercial-in-confidence' information.
For contract managers, the status of commercial-in-confidence information may change over the lifecycle of the project. Requests for information may prompt a review of the original redactions to ensure they can be substantiated.