Confidentiality (Clause 6 in Research Collaboration Agreements 1 - 4, Clause 5 in Research Collaboration Agreement 5)

Confidentiality of results

The Agreements treat the Results as the confidential information of the party to whom they belong.

Time limits

It's common for people to want to limit the time during which information is to be kept confidential, and clause 6.1 / 5.1 allows for that. The danger of doing this is that the information may still be commercially sensitive, or should be kept confidential for some other reason, after the end of the period of confidentiality. The parties should consider whether information is to be kept confidential indefinitely. If it is, the words in square brackets in clause 6.1 / 5.1 should be omitted.

Freedom of Information

Under the Freedom of Information Act 2000 the public has a right of access to recorded information held by public authorities. In effect this means that Universities are obliged to disclose information to anyone who asks for that information unless the information comes within one of the exemptions to the Act.

For the purposes of research collaborations, the most likely exemptions are:

• the disclosure of the information would be a breach of confidence in relation to which the University could be sued; or
• the information is a trade secret or its disclosure would prejudice someone's commercial interests and the public interest in withholding the information outweighs the public interest in disclosing it.

If a University is requested to provide information under the Act, it is likely to need to consult with the other party or parties to determine whether either of the above exemptions applies. For example, even if information has been supplied by the Sponsor in confidence initially, if the information has since come into the public domain, it will no longer come within the first exemption. The University may not, however, be aware of that unless it consults with the Sponsor.

Clause 6.2.5 / 5.2.5 allows the University to make any disclosure required by law. That means that the exemption mentioned in a) above will not apply; the Sponsor will have no right to sue the University for any disclosure made under the Act. Although that helps the University to comply with the FOIA, and to avoid the risk that the Sponsor may sue the University for breach of confidence, the Sponsor may find that approach unacceptable so far as its sensitive information is concerned, and it will make the Sponsor less willing to provide information to the University. Therefore an exception for disclosures under the FOIA has been added.

If the parties have agreed to include a clause allowing for the examination and submission of thesis, they will need to add the following to the end of clause 6.3 / 5.3:

"; or by the examination or deposit of a student thesis if the [University] [Academic Party] has followed the procedure in clause 6.3 / 5.3 and has received no Thesis Notice within the period stated in that clause".