Summary of all current contracts that *do not* contain a confidentiality clause/s

Verity Pane made this Freedom of Information request to Department of Veterans' Affairs

The request was successful.

From: Verity Pane

Delivered

Attn Department of Veterans' Affairs,

Under FOI, I seek copy of the the first page only (cover page is fine), of all current, contracts DVA has, that *does not* contain a confidentiality clause within them.

I note that the first page of a contract, which is generally a cover page, would reveal the names of the parties to the contract and possibly the date the contract was signed or come into existence, but generally nothing else.

Notably, such information of this type of information in such a cover page would typically be required to be disclosed as part of mandatory Commonwealth procurement disclosures, and thus would have no confidentiality obligations that could apply to it (and given prior public disclosure, no reasonable grounds to engage in third party consultation over).

If the first page contains additional information beyond this, it may be redacted with consent under s 22(2).

If DVA can, using s 17, substitute a compiled listing instead of all current contracts *without* confidentiality clauses, then you may do so in lieu.

I wonder what the result will be 🤔,

Verity Pane

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From: INFORMATION.LAW
Department of Veterans' Affairs


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Dear Verity Pane,

 

Acknowledgement of FOI Request – FOI 25061

 

I refer to your request to access information held by our Department under
the Freedom of Information Act 1982 (FOI Act).  The Department received
your request on 13 October 2018. In accordance with section 15(5)(b) of
the FOI Act, the Department has 30 days to process your request. As such,
a decision on your request is due by 12 November 2018.

 

If you have any questions about your FOI matter, please contact us using
the following details:

 

Post: Legal Services & Assurance, Department of Veterans’ Affairs

GPO Box 9998, Canberra ACT 2601

Facsimile: (02) 6289 6337

Email: [1][email address]

 

In all communications please quote reference FOI 25061.

 

Kind Regards,

 

 

Information Law | Legal Services & Assurance Branch

Department of Veterans’ Affairs

GPO Box 9998 Canberra ACT 2601

E: [2][email address]

 

 

[3]cid:image001.png@01D0027A.1DAB84F0

 

 

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From: INFORMATION.LAW
Department of Veterans' Affairs


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Good afternoon Verity Pane,

 

I refer to your FOI request received by the Department on 12 October 2018.
This request was given the reference FOI 25061.

 

Enquiries made and actions taken to date

As part your earlier request (FOI 24588), the Department made enquiries
with the  procurement team regarding contracts that contain
confidentiality clauses. As part of those original enquiries, we were
informed that all agreements that the Department has with suppliers
contain a confidentiality clause. This is because the agreements are all
based on the same template agreement. This template can be viewed here:
[1]https://www.dva.gov.au/about-dva/doing-b...
 (at Template number 2).

 

On the basis that all contracts contain a confidentiality clause, we asked
the procurement team if they had a list of each of their contracts and was
informed the Department had a spreadsheet of all current agreements which
contained the same details as is found on the front page of the contracts.
As you know, this spreadsheet was released to you on 12 October 2018.

 

I acknowledge your request for clarification sent on 12 October 2018 in
relation to FOI 24588 and this request for the front page of all contracts
that do not contain confidentiality clauses. As stated above, all of the
Department’s contracts contain confidentiality clauses. In light of this,
further enquiries were made with our procurement team in order to better
understand your request. Advice was again, that all contracts contain
standard confidentiality clauses and that there are a number of contracts
that contain specific confidentiality clauses that relate to:

•             Information contained in the contract itself; and/or

•             Information obtained or generated in performing the
contract.

 

The Department of Finance has summarised the difference between the
general confidentiality clauses and specific confidentiality clauses on
its website:
[2]https://www.finance.gov.au/procurement/p...
. You will see on this webpage that:

 

“AusTender reports about confidentiality provisions will include an
overarching statement indicating that most contracts contain general
confidentiality provisions, and the reasons for inclusion of these
provisions. Therefore, general confidentiality provisions such as these do
not need to be separately identified on AusTender. Entities must report
requirements to maintain the confidentiality of information obtained or
generated as a result of performance of the contract only where a
contractual clause has sought to protect specific information.”

 

We note that the use of the general confidentiality provision in the
Department’s contracts is consistent with the Commonwealth Contracting
Suite (see:
https://www.finance.gov.au/procurement/c...
and the Commonwealth Procurement Rules (see:
[3]https://www.finance.gov.au/procurement/p...
). 

 

Next steps

I hope that the above information gives you sufficient information
regarding the Department’s inclusion of confidentiality clauses in its
contracts, as well as setting out the difference between standard
confidentiality clauses and those that are include specific
confidentiality clauses that are governed by the requirements relating to
departmental and agency contracts (the Procedural Order).

 

Further, I confirm that the document provided to you in FOI 24588 contains
the details of all contracts that have general confidentiality clauses and
all contracts that include a specific confidentiality clause. In that
document, where there is an answer ‘Yes’ under ‘Confidentiality –
Contract’ or ‘Confidentiality – Output’, this means that there is a
specific confidentiality clause for the purposes of the Procedural Order.
Where there is an answer ‘No’ under ‘Confidentiality – Contract’ or
‘Confidentiality – Output’, this means that there are general
confidentiality clauses.

 

If you would like to revise or withdraw this current request please let us
know.

 

Please note that the Information Law team is committed to assisting you
with your FOI requests, which relates to the identification and subsequent
release of documents under the FOI Act. Where you have questions that
relate to the subject matter, policies, procedures or processes
surrounding the documents released to you under FOI, we advise that you
should contact [4][email address] .

 

Kind Regards,

 

Information Law Section | Legal Services and General Counsel Branch

Legal Assurance and Governance Division

Department of Veterans’ Affairs
E: [5][email address] | W: [6]www.dva.gov.au

 

[7]cid:image001.png@01D0027A.1DAB84F0

 

 

 

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From: Verity Pane

Delivered

Dear INFORMATION.LAW,

Thank you for that information.

So, in other words, the original decision (subsequently reversed in internal review) in FOI 24057 that these clauses prevented any and all such access was well and truly overstated and these general standard clauses do not prevent such access (only the ones relevantly flagged with AusTender) https://www.righttoknow.org.au/request/f...

It may be helpful in future to help DVA Information Law employees (especially what with the FOI delegates all being lawyers) to be across this better in future, to avoid such problems, reducing the burden on DVA and applicants, by not requiring unnecessary review decisions.

As your response has confirmed that there are no documents in scope, it is not necessary to proceed to a formal FOI decision notice, and you may mark this FOI satisfied via administrative access (in the form of narrative information) in lieu.

Yours sincerely,

Verity Pane

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From: INFORMATION.LAW
Department of Veterans' Affairs

Good afternoon Verity Pane,

Thank you for your email. Based on the below, we acknowledge your advice for our previous email to be taken as information provided via administrative access, and that the FOI request as such will be withdrawn (as you note it is not necessary to proceed to a formal FOI decision).

Kind Regards,

Information Law Section | Legal Services and General Counsel Branch
Legal Assurance and Governance Division
Department of Veterans’ Affairs
E: [email address] | W: www.dva.gov.au

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Things to do with this request

Anyone:
Department of Veterans' Affairs only: