Additional Reporting on Confidentiality

Principles

  1. Entities are required to identify on AusTender whether a contract includes confidentiality provisions. Entities must separately identify whether the requirements are to maintain the confidentiality of:
    • contract clauses or other information contained in the contract (referred to as Confidentiality (Contract)), such as a description of methodology to be used by a contractor which reveals confidential intellectual property; and
    • information obtained or generated as a result of performance of the contract (referred to as Confidentiality (Outputs)), such as a consultancy report which contains information that is protected since its disclosure would be contrary to the public interest.
  2. AusTender reports about confidentiality provisions will include an overarching statement indicating that most contracts contain general confidentiality provisions, and the reasons for inclusion of these provisions. Therefore, general confidentiality provisions such as these do not need to be separately identified on AusTender. Entities must report requirements to maintain the confidentiality of information obtained or generated as a result of performance of the contract only where a contractual clause has sought to protect specific information.
  3. The table below details the appropriate options for how confidentiality is reported on AusTender:
    AusTender 'Contract': Protecting information contained in the contract AusTender 'Outputs': Protecting information obtained or generated in performing the contract

Where there are general confidentiality provision/s only

Report 'No'

Report 'No'

Where there are specific provision/s protecting information in the contract and information obtained or generated in performing the contract

Report 'Yes'

Report 'Yes'

Where there are specific provision/s protecting information in the contract only

Report 'Yes'

Report 'No'

Where there are specific provision/s protecting information obtained or generated in performing the contract only

Report 'No'

Report 'Yes'

Reasons available where a contract is reported as 'yes'

  • Costing/profit information
  • Intellectual Property
  • Privacy Act
  • Public Interest
  • Secrecy Provisions
  • Other
  • Artistic, literary, cultural secrets
  • Intellectual Property
  • Privacy Act
  • Public Interest
  • Secrecy Provisions
  • Other

Practice

1. The reasons where a contract is reported on AusTender as 'yes' in relation to confidentiality are to be selected from the options set out below. Where more than one reason for confidentiality applies, each reason should be selected on AusTender.

Reason Explanation

Artistic, literary or cultural secrets

Where information is determined to be confidential because it reveals artistic, literary or cultural secrets. Examples include photo shoots, historical manuscripts or secret indigenous culture. This type of information is notgenerally set out in the contract itself and accordingly is not included in AusTender as a reason for a specific contract clause protecting information contained in the contract.

Costing/profit information

Where the confidential information would reveal the supplier's internal costing information or information about its profit margin. This type of information is generally set out in the contract itself and accordingly is not a reason for a specific contract clause protecting information obtained or generated in performing the contract.

Intellectual property

Where the entity has determined that specific intellectual property or trade secrets are to be kept confidential, and can apply to confidential information either in the contract or generated or obtained in performing the contract.

Privacy Act

Where a contract contains a confidentiality provision to protect specific personal information contained in the contract or obtained or generated in performing the contract (noting that standard privacy clauses are regarded as general confidentiality provisions and need not be identified separately). The standard privacy clauses available at www.privacy.gov.au would be regarded as general confidentiality provisions.

Public interest

Where an entity determines that information is confidential because its disclosure would be contrary to the public interest. The information protected for this reason could be information in the contract or obtained or generated in performing a contract. Public interest issues could include national security, defence and Cabinet decisions and/or deliberations.

Secrecy provisions

Where a confidentiality provision is used to protect specific information covered by a secrecy provision. The information protected for this reason could be information in the contract or obtained or generated from a contract. Secrecy provisions generally apply irrespective of a contractual clause to maintain the confidentiality of the information.

Other

Where there is any reason that is different to those above. If entities select 'Other' as the reason for including confidentiality provisions, they are required to provide a free-text description of the reason for including a confidentiality provision. One example of the use of 'other' as a reason is where a confidentiality clauseis used to protect information because disclosure of the information would have a substantial adverse effect on the financial or property interests of the Australian Government. However, the specific reason provided must be consistent with the Australian Government's intention that contracting information should not be confidential unless there is a sound reason, informed by legal principle, for maintaining the confidentiality of the information.

TIPS

Case Studies on Confidentiality Reporting

Examples of correct reporting

Contract containing a general confidentiality clause – no protection of specific information.
  1. Department of Q entered into a contract for the provision of internal audit services which contained a clause saying that the contractor could not, except in certain circumstances, disclose any confidential information without prior approval. There was no specific information listed as confidential and no requirement to maintain the confidentiality of any of the contract's provisions.
  2. The confidentiality clause in this contract would be regarded as a general confidentiality clause described within the overarching statement in AusTender that most contracts contain general confidentiality provisions. Accordingly, this contract would be reported as not containing provisions protecting information contained in the contract (on AusTender Contract = No) and not containing confidentiality provisions in relation to 'information obtained or generated in performing the contract' (on AusTender Outputs=No). This clause was not considered sufficient to enable the contract to be listed as protecting 'information obtained or generated in performing the contract' because the information to be protected was not specifically identified, but was only defined in general terms.
Contract protecting specific information in the contract with a general confidentiality clause.
  1. Department of Z is preparing to report a contract which contains a clause that requires the parties to keep confidential the information listed in the schedule and other information that the parties ought to know is confidential.
  2. Several clauses of the contract are listed in the schedule. These clauses contain details of the supplier's original business methodology and the price of certain individual items. There is no other information listed in the schedule.
  3. This contract would be reported in AusTender as a contract containing clauses protecting specific information contained in the contract (on AusTender Contract = Yes) specifying 'intellectual property' and 'internal costing/profit information' as the reasons. The contract would be reported as not protecting specific information obtained or generated in performing the contract (on AusTender Outputs = No). The other general confidentiality obligations imposed by the clause would be covered by the overarching statement provided in AusTender.
Contract protecting specific information generated in performing the contract with a general confidentiality clause.
  1. Department of J is preparing to report a consultancy contract which contains a clause which requires the parties to keep confidential the information listed in the schedule and other information that the parties ought to know is confidential.
  2. The schedule lists the consultant's final report as information to be kept confidential. The report is expected to make recommendations on a number of sensitive issues and the entity has determined that releasing the report would disclose matters contrary to the public interest.There is no other information listed in the schedule.
  3. This contract would be reported in AusTender as a contract not containing clauses protecting specific information contained in the contract (on AusTender Contract = No). It would, however be reported as protecting 'information obtained or generated in performing the contract' since it identifies specific information generated in performing the contract (on AusTender Outputs = Yes). The reason would be reported as 'public interest'. The clause also imposes general confidentiality obligations as outlined in the overarching statement provided in AusTender.

Examples of Incorrect Reporting

General clause incorrectly reported as protecting 'information obtained or generated in performing the contract'.
  1. Department K entered into a contract for research into the quality of its service delivery including a survey of clients. The contract contained the clauses required under the Privacy Act to ensure the service provider dealt with personal information as required by the Privacy Act. There was no specific information identified as subject to requirements of confidentiality.
  2. This contract was incorrectly reported as protecting 'information obtained or generated in performing the contract' with the reason reported as 'Privacy Act'.
  3. This contract does not contain any specific confidentiality requirements and should have been reported as not containing provisions protecting information in the contract (on AusTender Contract = No) and not protecting 'information obtained or generated in performing the contract' (on AusTender Outputs = No). The privacy clauses are regarded as general confidentiality obligations as outlined in the overarching statement provided in AusTender.
  4. This contract would only be correctly reported as protecting 'information obtained or generated in performing the contract' with the reason reported as 'Privacy Act' if there was specific information identified in the contract as confidential – for example the contract could have specified that 'individual survey responses' be kept confidential.
Contract protecting 'information obtained or generated in performing the contract' incorrectly reported as containing provisions 'protecting specific information in the contract'.
  1. Department X entered into a contract for the design and production of new software. Thecontract specified that the details of the software design when produced were to be kept confidential.
  2. The contract was incorrectly reported as containing provisions 'protecting specific information in the contract' with the reason reported as 'intellectual property'.
  3. This contract should have been reported as not containing provisions protecting information in the contract (on AusTender Contract = No) but as protecting 'information obtained or generated in performing the contract' (on AusTender Outputs = Yes). The reason was correctly reported.
  4. This contract would only be properly reported as containing provisions protecting information in the contract if the confidentiality extended to information set out in thecontract.

Last updated: 10 July 2014


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