44 Confidentiality

44.1 The Parties agree that provisions of this Agreement shall, subject to Clause 44.2, not be treated as Confidential Information and may be disclosed without restriction.

44.2 Clause 44.1 shall not apply to provisions of the Agreement designated as Commercially Sensitive Information and listed in Part 1 of Schedule 23 (Commercially Sensitive Information) to this Agreement which shall, subject to Clause 44.3 be kept confidential for the periods specified in that Part.

44.3 The Parties shall keep confidential all Confidential Information received by the Party from the other Party relating to this Agreement or the Services and shall use all reasonable endeavours to prevent their employees and agents from making any disclosure to any person of any such Confidential Information.

44.4 Clauses 44.2 and 44.3 shall not apply to:

44.4.1 any disclosure of information that is reasonably required by any Party engaged in the performance of their obligations under this Agreement for the performance of those obligations;

44.4.2 any matter which a Party can demonstrate is already or becomes generally available and in the public domain otherwise than as a result of breach of this Clause;

44.4.3 any disclosure to enable a determination to be made under Clause Error! Reference source not found. (Resolution of Disputes) or in connection with a dispute between the Partner and any of its subcontractors;

44.4.4 any disclosure which is required pursuant to any statutory, legal (including any order of a court of competent jurisdiction) or Parliamentary obligation placed upon the Party making the disclosure or the rules of any stock exchange or governmental or regulatory authority having the force of Law or if not having the force of Law, compliance with which is in accordance with the general practice of persons subject to the stock exchange or governmental or regulatory authority concerned;

44.4.5 any disclosure of information which is already lawfully in the possession of the receiving Party, prior to its disclosure by the disclosing Party;

44.4.6 any provision of information to the Parties' own professional advisers or insurance advisers or to the senior lenders or the senior lenders' professional advisers or insurance advisers, where it is proposed that a person should or may provide funds (whether directly or indirectly and whether by loan, equity participation or otherwise) to the Partner to enable it to carry out its obligations under this Agreement, or may wish to acquire shares in the Partner in accordance with the provisions of this Agreement to that person or their respective professional advisers but only to the extent reasonably necessary to enable a decision to be taken on the proposal;

44.4.7 any disclosure by the Council of information relating to the performance of the Services (provided such is not Commercially Sensitive Information) and such other information as may be reasonably required for the purpose of conducting a due diligence exercise to:

44.4.8 any registration or recording of the Consents and property registration required;

44.4.9 any disclosure of information by the Council to any other department, office or agency of the Government or their respective advisers or to any person engaged in providing services to the Council for any purpose related to or ancillary to this Agreement; or

44.4.10 any disclosure for the purpose of:

(a) the examination and certification of the Council's or the Partner's accounts;

(b) any examination pursuant to Section 6(1) of the National Audit Act 1983 of the economy, efficiency and effectiveness with which the Council has used its resources;

provided that, for the avoidance of doubt, neither Clause 1.4.9(c) or Clause 1.4.3 shall permit disclosure of Confidential Information otherwise prohibited by Clause 1.3 where that information is exempt from disclosure under section 41 of the FOIA.

44.5 Where disclosure is permitted under Clause 1.4, the Party providing the information shall procure that the recipient of the information shall be subject to the same obligation of confidentiality as that contained in this Agreement.

44.6 For the purposes of the National Audit Act 1982, the Comptroller and Auditor General may examine such documents as he may reasonably require which are owned, held or otherwise within the control of the Partner and any Partner Sub-contractor and may require the Partner and any Partner Sub-contractor to produce such oral or written explanations as he considers necessary. For the avoidance of doubt it is hereby declared that the carrying out of an examination under Section 6(3)(3) of the National Audit Act 1983 in relation to the Partner is not a function exercisable under this Agreement.

44.7 The Partner shall not make use of this Agreement or any information issued or provided by or on behalf of the Council in connection with this Agreement otherwise than for the purpose of the Agreement, except with the written consent of the Council.

44.8 Where either party, in carrying out its obligations under this Agreement, is provided with information relating to people/users the party shall not disclose or make use of any such information otherwise than for the purpose for which it was provided, unless the party has sought the prior written consent of that person/user and has obtained the prior written consent of the other party.

44.9 On or before the Expiry Date, the Partner shall ensure that all documents or computer records in its possession, custody or control, which contain Personal Data including any documents in the possession, custody or control of a Partner Sub-contractor, are delivered up to the Council.

44.10 The Parties acknowledge that the National Audit Office has the right to publish details of this Agreement (including Commercially Sensitive Information) in its relevant reports to Parliament.

44.11 The provisions of this Clause 44 are without prejudice to the application of the Official Secrets Acts 1911 to 1989.

45 freedom of information

45.1 The Partner acknowledges that the Council is subject to the requirements of the FOIA and the Environmental Information Regulations and shall facilitate the Council's compliance with its Information disclosure requirements pursuant to the same in the manner provided for in Clauses 45.1 to 45.9 (inclusive).

45.2 Subject to receiving confirmation that the Council wishes the Partner to comply with the Request for Information in accordance with clause 45.8, where the Council receives a Request for Information in relation to Information that the Partner is holding on its behalf and which the Council does not hold itself the Council shall refer to the Partner such Request for Information that it receives as soon as practicable and in any event within five Business Days of receiving a Request for Information and the Partner shall:

45.2.1. provide the Council with a copy of all such Information in the form that the Council requires as soon as practicable and in any event within ten Business Days (or such other period as the Council acting reasonably may specify) of the Council's request; and

45.2.2 provide all necessary assistance as reasonably requested by the Council in connection with any such Information, to enable the Council to respond to a Request for Information within the time for compliance set out in section 10 of the FOIA or Regulation 5 of the Environmental Information Regulations.

45.3 Following notification under Clause 45.2, and up until such time as the Partner has provided the Council with all the Information specified in Clause 45.2.1, the Partner may make representations to the Council as to whether or not or on what basis Information requested should be disclosed, and whether further information should reasonably be provided in order to identify and location the information requested and the Council shall consider such representations, provided always that the Council shall be responsible for determining at its absolute discretion:-

45.3.1 whether Information is exempt from disclosure under the FOIA and the Environmental Information Regulations;

45.3.2 whether Information is to be disclosed in response to a Request for Information, and

in no event shall the Partner respond directly, or allow Partner Sub-contactors to respond directly, to a Request for Information unless expressly authorised to do so by the Council.

45.4 Where the Council receives a Request for Information in relation to Information that the Council holds which relates to the Partner or this Agreement the Council shall notify the Partner as soon as reasonably practicable and in any event prior to disclosure of such and shall allow the Partner to make representations to the Council as to whether or not and/or on what basis information requested should be disclosed, and the Council shall consider such representations, provided always that the Council shall be responsible for determining at its absolute discretion:

45.4.1 whether information is exempt from disclosure under the FOIA and the Environmental Information Regulations;

45.4.2 whether information is to be disclosed in response to a Request for Information.

45.5 The Partner shall ensure that all Information held on behalf of the Council shall be retained for disclosure in accordance with the terms of the Council Policies and Standards and shall permit the Council to inspect such Information as requested from time to time.

45.6 The Partner shall transfer to the Council any Request for Information received by the Partner as soon as practicable and in any event within 2 Business Days of receiving it.

45.7 The Partner acknowledges that any lists provided by him listing or outlining Confidential Information, are of indicative value only and that the Council may nevertheless be obliged to disclose Confidential Information in accordance with the requirements of the FOIA and the Environmental Regulations.

45.8 In the event of a request from the Council pursuant to Clause 2.2, the Partner shall as soon as practicable, and in any event within 15 (fifteen) Business Days of receipt of such Request for Information, inform the Council of the Partner's estimated costs of complying with the Request for Information to the extent these would be recoverable if incurred by the Council under Section 12(1) of the FOIA and the Fees Regulations. Where such costs (either on their own or in conjunction with the Council's own such costs in respect of such Request for Information) will exceed the appropriate limit referred to in Section 12(1) of the FOIA and as set out in the Fees Regulations (the "Appropriate Limit") the Council shall inform the Partner in writing whether or not it still requires the Partner to comply with the Request for Information and where it does require the Partner to comply with the Request for Information the 15 (fifteen) Business Days period for compliance shall be extended by such number of additional days for compliance as the Council is entitled to under Section 10 of the FOIA. In such case, the Council shall notify the Partner of such additional days as soon as practicable after becoming aware of them and shall reimburse the Partner for such costs as the Partner incurs in complying with the Request for Information to the extent it is itself entitled to reimbursement of such costs in accordance with its own FOIA policy from time to time. For the avoidance of doubt the Partner shall not be obliged to comply with a Request for Information until it has received confirmation that the Council wishes to proceed after notification of costs provided that the Partner shall only be entitled to object to a Request for Information to the extent that the Council would be entitled to object to the Request in accordance with FOIA if the Information subject to the Request for Information were held by the Council.

45.9 The Partner acknowledge that (notwithstanding the provisions of Clause 52) the Council may, acting in accordance with the Department of Constitutional Affairs' Code of Practice on the Discharge of Functions of Public Authorities under Part 1 of the Freedom of Information Act 2000 (the "Code"), be obliged under FOIA, or the Environmental Information Regulations to disclose Information concerning the Partner or the Services following consultation with the Partner and having taken their views into account, provided always that where Clause 45.9 applies the Council shall in accordance with the recommendations of the Code, draw this to the attention of the Partner prior to any disclosure.