Disclosure of information

Guidance

This clause should be included to ensure the parties are aware of their obligations in relation to use and disclosure of Confidential Information under the Contract.  

The clause prevents the Supplier from disclosing Confidential Information in relation to the Contract to any third party unless it obtains prior written approval from the Customer. The clause includes a number of exceptions, for example where the Supplier is required by law or by a stock exchange to disclose the Confidential Information to a third party.

The clause gives the Customer the discretion to require the Supplier to arrange for its employees, agents or Subcontractors to provide a written undertaking of non-disclosure and also gives the Customer the right to require the Supplier to return or destroy Confidential Information in certain circumstances.

Before a Supplier’s information will be treated confidential by the Customer, it must meet all four (4) criteria of the Confidentiality Test published on the Department of Finance website. This clause includes provisions dealing with the Customer’s disclosure of Supplier Confidential Information and list a number of exceptions. 

If there is a separate clause dealing with the Protective Security Policy Framework in a Contract, this clause may need to be tailored (for more, see the Guidance below).

Clauses

Disclosure of information

X.1  For the purposes of this clause, ‘Confidential Information’ means all forms of information that:

  1. is designated either specifically or generally in [insert Schedule/Item/Clause] of the Contract;
  2. is designated by its owner as confidential and, if it is the Supplier’s Confidential Information, meets all four (4) criteria of the Confidentiality Test published on the Department of Finance website and the Customer agrees in writing to treat the information as confidential; or
  3. which the Supplier or Customer, knows or ought to know is confidential.

X.2  The Supplier agrees not to disclose any Confidential Information relating to the Contract or the Goods and/or Services, without prior written approval from the Customer. This obligation will not be breached where the relevant information is publicly available (other than through breach of a confidentiality or non-disclosure obligation). This obligation will also not be breached where the Supplier is required by law or a stock exchange to disclose the relevant information but any such request must be reported in writing to the Customer without delay and the text of the disclosure provided in writing to the Customer as soon as practicable.

X.3  In giving its approval to allow the Supplier to disclose any Confidential Information relating to the Contract or the Goods and/or Services, the Customer may impose conditions on that consent and may require the Supplier to execute a written undertaking.

X.4  The Customer may at any time require the Supplier to arrange for its employees, agents or Subcontractors to give a written undertaking relating to nondisclosure of the Customer’s Confidential Information in a form acceptable to the Customer.

X.5  The Supplier will return to the Customer, all documents in its possession, power or control which contain or relate to any information that is Customer Confidential Information on request by the Customer or when the documents are no longer required for performing the Contract.

X.6  If the Customer makes a request for the Supplier to return documents to the Customer under this clause and the Supplier has placed or is aware that documents containing the Confidential Information are beyond its possession or control, the Supplier will provide full particulars of the location of the documents, and the identity of the person in whose custody or control they lie.

X.7  The Supplier, when directed by the Customer in writing, will destroy any document in its possession, power or control which contain or relate to any Confidential Information.

X.8  The Customer may, without the prior written authorisation of the Supplier, disclose any Confidential Information of the Supplier:

  1. to its personnel in order to comply with its obligations, or to exercise its rights, under this Contract or to obtain advice in relation to, or enable management or auditing of, contract-related activities;
  2. within the Customer’s organisation, or with another Commonwealth entity, where this serves the Commonwealth’s legitimate interests;
  3. to the responsible Minister or in response to a request by a House or a Committee of the Parliament of the Commonwealth of Australia;
  4. when it is authorised or required by law to be disclosed; or
  5. which is in the public domain otherwise than due to a breach of this clause.

X.9  Except in X.8(a)-(e) of this clause, the Customer will not, without the prior written authorisation of the Supplier, disclose any Confidential Information of the Supplier to a third party.

X.10  Where the Customer discloses Confidential Information to another person pursuant to (d) to (h) of this clause, the Customer will notify the receiving person that the information is confidential.

Notes

While use of this clause is optional, it is common for contracts to include a clause of this type.

Standardisation of contractual text results in efficiencies for both Parties to a contract. Before deciding whether a particular clause is appropriate, procurement officials should carefully consider the context of their procurement.

Clause wording would generally need to be changed:

  • where the Customer or Supplier would like to specifically identify information which is covered by this clause
  • to align with related clauses in a Contract such as clauses dealing with record keeping and management, dealing with copies, security requirements, Protective Security Policy Framework (PSPF), contract material, intellectual property and audit and access.

Non-disclosure of Official Information is also dealt with separately in the PSPF clause of this ClauseBank.  Official Information under that clause is likely to include Confidential Information of the Customer as defined in this clause.

Where a PSPF clause is included in a Contract, careful consideration should be given to both clauses to avoid any overlap.  An option in this situation is to delete the parts of this clause that deal with the Supplier keeping Customer Confidential Information and for this issue to be addressed in the PSPF clause.

Otherwise, where this clause is included, the clause wording should be used without change.

Terms that are capitalised may need to be changed to align with the Contract terminology.  For example, you may need to review the definition of ‘Personnel’ that is used in the Contract.  If it does not cover agents, management personnel and other third parties such as advisers who may be involved in the administering or advising on the contract, then you may need to amend the definition of Personnel or amend this clause to allow for disclosure in these circumstances.

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Status

Optional (see Notes section below)
Source

Commonwealth Contract Terms clause C.C.22.C
Legislation / Policy

Confidentiality Test available at: https://www.finance.gov.au/government/procurement/buying-australian-government/confidentiality-throughout-procurement-cycle
Legislation / Policy contact

ProcurementAgencyAdvice@finance.gov.au