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International Law

: Open and Shut

Future payments to government "commercial in confidence"?

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What constitutes "commercial in confidence" seems likely to get an early work out from the NSW Information Commissioner if the Sydney Morning Herald follows through on its editorial today (the second in this link) about the publication of a $6 billion agreement between the Barangaroo Delivery Authority and developers Lend Lease published this week, stripped the Herald says, of almost all financial information. Well at least payments by Lend Lease for the development rights in seven payments yet to be made by 2018, what Lend Lease is contributing to the infrastructure like ferry wharves and light rail, the cap to the company's liability for damages for breaching the contract, or penalties it would face for missing targets for water, waste and carbon standards by the due dates.

The Government Information (Public Access) Act requires such contracts to be published, but not "commercial in confidence" information or other information where there is an overriding public interest against disclosure. "Commercial in confidence" isn't anything an agency or contractor might want it to be, but a term defined in Schedule 4 of the act. As the Herald, asks, ticking off the elements of the definition:

Would it disclose the contractor's financing arrangements, its cost structure or profit margins, its full ''base case financial model'', or any intellectual property? We think not. But perhaps it comes under this catch-all classification: ''any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future.'' That must be it - but how?

It sounds something of a stretch.The Herald says that the Authority's compliance with the publishing requirement " renders the new law a joke.

This is a challenge to NSW's new Information Commissioner, Deirdre O'Donnell, who has declared that she wants to champion a ''revolution'' in the public sector's attitude to information. So let the revolution begin, and heads roll on the Hungry Mile."

Full post as published by Open and Shut on August 25, 2010 (boomark / email).