Australia: Is My Commercial Information Protected Under the New Right to Information Regime in NSW?

Legal Update
Last Updated: 9 July 2010
Article by Ashley Tsacalos

Introduction

In this Legal Update, we consider the implications of the new right to information regime in NSW for private sector contractors doing business with NSW government department and agencies (including local councils and State owned corporations). The new regime replaces the existing arrangements under the Freedom of Information Act 1989 (NSW) (FOI Act). The key elements of the regime are contained in the Government Information (Public Access) Act 2009 (GIPA Act), which commenced on 1 July 2010. For an overview of the GIPA Act and associated legislation see our earlier Legal Update.

The new regime encourages a greater level of proactive disclosure of government information compared with the FOI Act. There are four ways that the public is able to access government information under the GIPA Act:

  • mandatory proactive release of 'open access information' held by an agency
  • authorised proactive release of government information held by an agency
  • informal release of government information held by an agency in response to an informal request and
  • formal access applications for government information.

There is a presumption in favour of the disclosure of government information through any of the above four methods of access, unless there is an 'overriding public interest against disclosure'.

Will information about my contracts with government agencies be disclosed?

The requirements for agencies to maintain a government contracts register in the FOI Act have been retained and expanded upon in the GIPA Act. For the first time, these requirements have been extended to contracts entered into by State owned corporations (SOC).

If you enter into a contract with a government agency (including a SOC) that has a value of over $150,000 (class 1 contracts) the agency is required to include the following information in its government contracts register:

  • name and business address of the contractor
  • particulars of any related company or entity that will be involved in carrying out any of the contractor's obligations under the contract or will receive a benefit under the contract
  • date on which the contract became effective and the duration of the contract
  • particulars of the project to be undertaken, the goods or services to be provided or the real property to be leased or transferred under the contract
  • the estimated amount payable to the contractor under the contract and a description of any provisions under which the amount may be varied
  • a description of any provisions with respect to the renegotiation of the contract
  • in the case of a contract arising from a tendering process, the method of tendering and a summary of the criteria against which the various tenders were assessed
  • a description of any provisions under which it is agreed that the contractor is to receive payment for providing operational or maintenance services.

Additional information is required to be entered in an agency's government contracts register in relation to certain significant contracts (class 2 contracts), for example, where:

  • there has been no open tender process
  • there has been a tender process but the contract has been substantially negotiated with the successful tenderer
  • the contract involves:
    • maintenance or operation of infrastructure or assets that could continue for 10 years or more
    • a privately financed project under Treasury guidelines or
    • a transfer of a significant asset of an agency in exchange for the transfer of an asset to the agency.

The additional information for class 2 contracts that must be included in an agency's government contracts register includes the following:

  • particulars of future transfers of significant assets to the State or to the contractor at zero, or nominal, cost
  • a summary of information used in the contractor's full base case financial model (for example, the pricing formula for tolls or usage charges)
  • details of risk apportionment between the parties
  • particulars of any significant guarantees or undertakings between the parties, including loan agreements and
  • particulars of any other key elements of the contract.

If you enter into a class 2 contract that is likely to have a value of $5 million or more (known as class 3 contracts), the agency is required to include a copy of the contract in its government contracts register.

Where will the information be published?

Agencies are required to publish their government contracts register on the NSW government's tenders website (currently at https://tenders.nsw.gov.au), except for SOCs, local authorities and universities, who are required to have a copy on their own website.

How long will this information be publicly available?

Information about a contract must be included in an agency's government contracts register within 60 days after the contract becomes effective and must remain publicly available for a period of 30 days or until the contract has been completed, whichever is longer.

Will my confidential or commercially sensitive information be protected from disclosure?

The disclosure requirements for government contracts do not require information about commercial-in-confidence provisions of a contract, or details of any unsuccessful tender, to be included in an agency's government contracts register. There is also an exception for disclosures of information where there is an "overriding public interest against disclosure". Relevant considerations include whether the disclosure would undermine competitive neutrality, diminish the competitive commercial value of any information to any person or prejudice any person's legitimate business, commercial, professional or financial interests.

There are also specific exemptions from the disclosure requirements for government contracts for industry support contracts, Landcom contracts for the sale of land and contracts related to the activities of a SOC in a competitive market.

What if I disagree with what an agency has included in its governments contracts register?

If you disagree with how an agency (other than a SOC, local authority or university) has interpreted its disclosure obligations with respect to its government contracts register, the agency must obtain the opinion of the State Contracts Control Board.

While a decision by an agency to include information in its government contracts register is not a 'reviewable decision' that can be internally and externally reviewed, a private sector contractor may make a complaint to the Information Commissioner about the conduct of an agency in the exercise of its functions under the GIPA Act, including its functions with respect to its government contracts register.

Does the right to information regime extend to information held by private sector contractors?

The definition of 'government information' under the GIPA Act also extends to that held by private sector contractors who enter into a contract to provide services to the public on behalf of an agency. If you enter into such a contract, the agency will require that the terms and conditions of the contract include an 'immediate right to access' information:

  • relating to the performance of services under the contract
  • collected by the contractor from members of the public and
  • received by the contractor from the agency to facilitate the provision of services.

However, the agency's 'immediate right to access' does not apply to information that:

  • discloses the contractor's financing arrangements, financial modelling, cost structure or profit margins
  • the contractor is prohibited from disclosing to the agency by other Acts or
  • if disclosed, could reasonably be expected to place the contractor at a substantial commercial disadvantage in relation to the agency, whether at present or in the future.

What if someone makes an access application in respect of my commercial information?

If a member of the public makes an application for access to information that concerns your business, commercial, professional or financial interests, then you are entitled to be consulted before access to that information is provided (including information held by you to which an agency has an immediate right of access). You should be asked whether you have any objections to the disclosure and the reasons for your objections. Your objections must be taken into account by the agency in determining whether there is an overriding public interest against disclosure of the information.

If the agency decides to provide access to the information notwithstanding your objections, you must be given advance notice and you must be informed of your rights to seek review of the agency's decision. There are various avenues of review under the GIPA Act including internal review and external review by the Information Commissioner and/or the Administrative Decisions Tribunal.

We have been advising a range of clients in the lead up to the commencement of the GIPA Act and continue to do so following its commencement. If you do business with NSW government agencies and have any queries or concerns about the implications of the GIPA Act, please contact Ashley Tsacalos.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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