NSW Contract Disclosure requirements to apply from 2 January 2007

The NSW Freedom of Information Amendment (Open Government - Disclosure of Contracts) Act received assent on 4 December and will apply to contracts entered into after 2 January 2007. The text of the amendments is on the link below.

Freedom of Information Amendment (Open Government - Disclosure of Contracts) Act 2006 No 115

The Act applies to any agency subject to the NSW FOI Act except State Owned Corporations, and until the making of a regulation, local councils. In effect, the legislation creates new publishing requirements under Section 15 of the FOI Act, and amends the business affairs exemption by adding a new limited "commercial in confidence" provision.

As previously indicated here, the Act will require an agency to publish on a central government website within 60 days, contracts for more than $5million, and details of other contracts for more than $150.000. Material variations of any contract must also be published.

Some types of information may be excluded if they come within "commercial in confidence" as defined in the Act - the contractors financing arrangements, cost structure, profit margins, full base case financial model, intellectual property, matter the disclosure of which would place the contractor at a substantial commercial disadvantage.

While these publishing obligations are not entirely new for large government departments and authorities, they will involve a whole new ball game for some organisations such as universities and other bodies subject to the FOI Act, but not normally seen to be part of the NSW government system.

The central government website mentioned in the Act currently seems geared to provide information to prospective tenderers. If the new Act is to provide a useful accountability mechanism, whatever website is used will need to have some additional search capabilities, for example to enable access to information about all contracts entered into by a particular agency, and to details of all contracts awarded to a particular contractor.