There are a number of circumstances where there is specific legislation which impacts on the law of confidentiality. There are a number of laws and/or government policies which specifically require disclosure of information which otherwise might have been treated as confidential under the law. These pieces of legislation include:
1. Freedom of Information Act
Broadly, this is legislation that enables citizens to obtain information through a fairly simple application process. Whilst there are a number of reasons why a government can validly refuse to provide information following a freedom of information application, it often comes as a surprise as to how much information can be obtained through this process.
2. Government Policy on Dealing with Confidential Information
The Australian Government has a policy on dealing with confidential information which is in the Guidance on Confidentiality in Procurement – FMG3. This can be found at www.finance.gov.au/publications/fmg-series/03-guidance-on-confidentiality-in-procurement.html. The aim of this policy is to provide guidelines to the Government as to which information is truly confidential and what information is not confidential (and typically subject to disclosure under the freedom of information laws). The policy also provides for keeping different types of information confidential for different periods. It is critical that ICT suppliers understand the impact of this policy as it is commonly incorporated into the clauses of Australian Government contracts. For specific examples see the Australian Government “standard” contracts for acquiring hardware, software and consulting services, known as Source IT Model Form Contracts for Software Licensing, Consulting Services and Hardware Acquisition and Maintenance. These can be found at www.finance.gov.au/procurement/ict-procurement/contract-framework/sourceit-model-contracts/index.html. Essentially, under this policy it is necessary for ICT suppliers to be able to define the information that they wish to keep as confidential into one of the heads of acceptable types of information and then agree a specific period for which that information must be kept confidential. This information is usually agreed prior to signature of the agreement. If the ICT supplier subsequently provides information to the Government it is often necessary for the ICT supplier to agree with the Government that that subsequent information is confidential and obtain a formal amendment to the agreement to ensure the additional information is covered by the confidentiality provision. This is a particularly onerous and administratively time-consuming task.
3. Public Procurement Policy
The Australian Government and a number of State governments have policies which provide for the disclosure of signed contracts and the details relating to those contracts to the general public. It is common for governments to advise suppliers of the government’s obligations under these policies in tender documentation.
4. Patents
It is critical to sign a non-disclosure agreement if the information that is to be disclosed is likely to include any information that would subsequently be included in a patent application. This is because one of the pre-requisites for a patent application to be accepted is that the invention has not been disclosed. More details of this can be found in this AIIA.biz section on Patents and Trade Marks.
5. Stock Exchange Disclosures
In common with other countries’ stock exchanges, the Australian Stock Exchange requires that listed companies continually disclose material information to the market. This means that a publicly listed company is obliged by law to disclose confidential information in the circumstances required by the ASX Listing Rules, irrespective of whether the information is confidential.
Next: Key Issues for Confidentiality and Teaming Agreements. Note that this is Premium Content only available to logged in AIIA Members.