Freedom Of Information Act - Model Contract Clauses

1. To complement the FOIA procurement guidance document, OGC developed the model FOIA confidentiality terms and conditions. You may note that they have been refined slightly since their first publication on the OGC website in November, in the light of further legal thinking, and advice, in addition to ensuring consistency with the recently published FOIA provisions in the new model IT contracts, in the Risk Allocation Model. Evidently this is still a developing area of legislation, and we anticipate the need to review the clauses on a regular basis, and to make any necessary enhancements borne from experience of adoption of the clauses in future contracting.

2. The clauses have been developed to help contracting authorities address the implementation of the Freedom of Information Act 2000, which comes into force on January 1, 2005. They deal with both the implications of the Act itself for procurement contracts, and the obligations of the Act for both contracting authorities and suppliers/contractors. In particular it is suggested that schedules of information which genuinely have the necessary quality of confidence (and may therefore potentially exempt from disclosure under the Act) are agreed prior to contract award. However the provisions make it clear that any contractual confidentiality obligations will be subject to the disclosure requirements of the Act.

3. OGC encourages adoption of these conditions by contracting authorities in their forthcoming procurements, (or indeed, within existing contracts where necessary), as they will assist in both protecting the interests of both contracting parties, whilst ensuring transparency of roles and obligations. OGC also advises authorities to consider carefully any appropriate tailoring necessary to reflect the individual requirements of a particular procurement on a case-by-case basis. Specialist advice may still be required, and we would recommend authorities consult in-house advisors (commercial or legal), where necessary.

4. The clauses will also be incorporated into OGC's generic suite of model terms and conditions, for non IT, non construction procurements. (This suite of terms and conditions are currently being reviewed, and the new refreshed version will be available in the New Year). The defined terms used in the FOIA/Confidentiality provisions are those used in the general set of model terms and conditions.

5. As specified above in (3), specific queries relating to the adoption of these clauses within contracts should be fielded in-house, however, general queries relating to the terms and conditions published here can be directed to the OGC ServiceDesk Tel: 0845 000 4999. You can also contact the Service Desk by e-mail. Please send comments to ServiceDesk@OGC.gsi.gov.uk