Protecting confidential information in contractual situations

To obtain the benefit of exemptions that are available under the FOI Act relating to confidential information, contracts should clearly identify the information that is confidential.

If a contract is to be kept confidential

Where the University (or another party contracting with the University) wants to keep the terms of a contract confidential:

0. The University representative negotiating the contract must clearly identify the information or clauses that are confidential (e.g. costing or pricing schedules; work flow methods) and be able to justify why such information needs to be kept confidential.
0. A "confidentiality clause" must be included in the contract, which makes it a breach of the contract for the University to disclose the contract terms identified as being confidential.
   
   For example: "For the purposes of the Freedom of Information Act 1991 (SA), [insert relevant section or clause number(s), appendix number(s), paragraph(s) of the contract, or the words "entire contract", as applicable] of this Agreement is/are confidential."
0. The confidentiality clause must be authorised by the Vice-Chancellor and President (or delegate) before the contract is signed by any party.

For advance approval of a confidentiality clause, forward the contract to helpdesklegal@adelaide.edu.au preferably at the earliest stages of the negotiation process. Legal & Risk will arrange for the approval.

If prior approval of the term is not obtained, the contract document in its entirety may be subject to disclosure under the FOI Act.

If information exchanged between the University and other parties is to be kept confidential

Sometimes parties may exchange confidential information in relation to a project or agreement, or documents created under a project may need to be kept confidential. In order for any documents containing such confidential information to be exempted under the FOI Act, there should be a contract between the University and the other party/s which includes:

0. A clear definition of the “Confidential Information” - which can be specific, (e.g. business plans, financial information) or more general (e.g. any information exchanged between the parties in relation to the project); and 
0. A clause preventing the unauthorised use or disclosure to third parties of the Confidential Information.

Sample clause:

“A party must not use or disclose Confidential Information except:

(a) in the proper performance of this document;
 
(b) to such of the officers, employees and advisers of the party as have a legitimate interest in the Confidential Information to be disclosed to them;

(c) as may be required by applicable law (in which case, prior to disclosure, the party must consult with the other parties about the form and content of such disclosure); or

(d) as the other parties may agree in writing.

If you require assistance in drafting a suitable Confidential Information clause, please contact Legal & Risk on 8303 4539 or email helpdesklegal@adelaide.edu.au.