March 24, 2016
When a business responds to a public sector Request for Proposal or Expression of Interest (both of which we’ll refer to as an RFP for these purposes) or seeks government financing, it’s typically providing a significant amount of business information, some or even much of it highly confidential, to the public body. Most are rightly focused on the benefits of a successful proposal, but few consider the risk that their confidential information will end up in the hands of a direct competitor. And that is a very real – and potentially severe – risk of doing business with the public sector.
Here are the key confidentiality risks of doing business with the public sector and three strategies to help manage them.
Access to information (aka freedom of information) laws are intended to ensure transparency of and access to the public sector’s activities. These same laws are the source of the confidentiality risks to parties doing business with the public sector.
Access to Information Laws. Virtually every public sector body is subject to access to information laws:
The specific wording and scope of each access to information law varies, but there are substantial similarities in their scope and interpretation:
Disclosure Risks. A private business responding to an RFP or seeking government funding typically discloses a broad range of business information to a public body – and should be concerned about the risks of public disclosure of that information. Some are obvious, and some are more nuanced; here are a few examples.
3 RISK MANAGEMENT STRATEGIES
The public sector is a significant consumer and investor. Completely eliminating the confidentiality risks inherent in doing business with the public sector means eliminating the public sector as a customer or an investor altogether, and that isn’t a viable or even a desirable strategy for most businesses. But the risk management strategy for such businesses must include consideration of the risk of disclosure of their confidential business information to the public or to competitors. No single risk mitigation strategy will be determinative, but employed together, they will strengthen an argument to resist public disclosure – and minimize the related confidentiality risks.
Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Privacy Law Team to discuss this topic or any other legal issue.
McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.
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