Treatment of Confidential Information by Government Employees
We have asked the relevant Government Departments for clarification of the extent to which they are constrained in dealing with ‘commercially-in-confidence’ material provided by applicants in applying for government support through R&D Tax Concessions, Export Market Development Grants and other, special purpose grants. 12 July 2011.
AusTrade provided extracts from the Australian Trade Commission Act 1985 in relation to the rules applying to information supplied to AusTrade in application for an Export Marketing Development Grant or during the audit process:
1) This section applies to a person who is or has been:
a) The CEO; or
b) A member of the staff of the Commission referred to in section 60; (public servant); or
c) A consultant engaged under section 62.
2) Subject to this section, a person to whom this section applies shall not, either directly or indirectly, except for the purposes of this Act:
a) Make a record of, or divulge or communicate to any person any information concerning the affairs of another person acquired by the first-mentioned person by reason of his or her employment; or
b) Produce to any person a document relating to the affairs of another person furnished for the purposes of the Act.
Penalty: $2,000 or imprisonment for 1 year, or both.
3) Subsection (2) does not apply to the disclosure of information, or the production of a document, to the Minister, to the Secretary to the Department, or to an officer of the Department designated by the Secretary.
4) Subsection (2) does not prevent a person to whom this section applies from communicating, or making available to another person:
a) The following information relating to payments of grants authorised by the CEO under the Export Market Development Grants Act 1997 or the Export Market Development Grants Act 1974:
i) The name and address of a person to whom the CEO has authorised a payment;
ii) The amount of a grant to a person;
iii) The industry to which a grant relates; and
b) Any information of a statistical nature relating to the making of grants under the Export Market Development Grants Act 1974 or the Export Market Development Grants Act 1997.
5) A person to who this section applies shall not be required to divulge or communicate to a court any information referred to in subsection (2) or to produce in a court any document referred to in that subsection, except when it is necessary to do so for the purposes of, or of a prosecution for an offence against, this Act, the Export Market Development Grants Act 1974 or the Export Market Development Grants Act 1997.
Highlights added by the officer of the department.
To quote the officer of the department who provided this information, ‘we have a clean desk policy. Documents are not available for general viewing and are controlled by the case manager who is responsible for their security; they are locked away each night’.
Victorian Department of Business & Innovation
Obligations of confidentiality of Public Servants/State:
a) Constitutional provision provides protection with respect to any improper use of information gained by public servants in the course of their employment – see section 95 of the Constitution Act below – esp s.95(1)(b);
b) Code of Conduct for Public Sector employees provides further protection – In particular it proscribes the improper dissemination or improper use of information gained through working for the Department – see provision 19 also extracted below;
c) Generally, we will not need access to or want anything that is going to be particularly commercially sensitive – But nonetheless, where you perceive that there may be some sensitive material which we will have access to, you should place “commercial in confidence” labels on particularly sensitive information that comes into our hands;
d) It is not in the Department’s interest to divulge information of this nature which comes into our possession all the time – we wouldn’t be able to operate if that were the case, in providing assistance to companies such as yours.
Extract from Constitution Act (Vic)
95. Officers in the public service not to take part in political affairs
1) A person employed in any capacity (whether permanently or temporarily) in the service of the State of Victoria shall not
a) publicly comment upon the administration of any department of the State of Victoria;
b) use except in or for the discharge of his official duties any information gained by or conveyed to him through his connexion with the public service; or
c) directly or indirectly use or attempt to use any influence with respect to the remuneration or position of himself or of any person in the public service.
2) Any person who contravenes this section shall on proof thereof to the satisfaction of the Public Service Board the Chief Executive, Ministry of Education the Police Discipline Board or other body or person to which or whom he is subject in matters of discipline (as the case requires) be liable to a fine not exceeding $100 and in addition to such fine may be reduced in class
3) subdivision grade status or salary or dismissed or have his services dispensed with.
4) This section;
a) shall apply to every person employed as aforesaid notwithstanding that he may not be subject to the Public Service Act 1974 or the Teaching Service Act 1981 or the Transport Act 1983 or the Police Regulation Act 1958;
b) shall not apply to officers in the service of the Parliament, but the Governor in Council on the recommendation of the Parliamentary Offices Committee may make regulations applying to such officers in relation to matters referred to herein.
Note from the officer of the department: ‘this is a document we normally provide clients that require assurance around the confidentiality of projects brought to the attention of the Victorian Government’.
Extract from an email response from an officer of the Department, 8 July 2011, regarding an enquiry in relation to R&D Tax Concessions:
‘In our discussion yesterday, you stated that certain of your clients had raised concerns regarding the treatment of information provided to AusIndustry in connection with the R&D Tax Concession. I hope the following information on the confidentiality provisions protecting such information will be useful.
The confidentiality provisions in the Industry Research and Development Act 1986 express an obligation to restrict access to protected customer information. All R&D Tax Concession applications are accepted by AusIndustry as commercial-in-confidence; thus all applications and related material are treated as confidential. Consequently, the supply by AusIndustry of customer information that relates to a matter covered in the IR&D Act would be a breach of confidence unless the supply of information is permitted by law.
- Persons “permitted under the Act” to access protected information are:
- the Minister (for Innovation, Industry, Science and Research), and members of his/her staff;
- the Secretary to the Department of Innovation, Industry, Science and Research; or
- officers of the Department designated in writing by the Secretary
- The Australian National Audit Office, the Australian Taxation Office, the Australian Bureau of Statistics and the Australian Federal Police are also entitled to receive R&D Tax Concession information under the IR&D Act.
However, all persons entitled under the legislation to access R&D Tax Concession information may not reveal or release such information to any persons not so entitled.
In addition to the confidentiality provisions in the IR&D Act, a strict legislative and regulatory framework governs use and disclosure of information by Commonwealth employees. Departmental officers are under legal obligation to treat information they receive as commercial-in-confidence material.
Departmental officers are bound by a legal framework which includes the Public Service Act 1999 and Orders and Regulations made under this Act, the Crimes Act 1914, the Freedom of Information Act 1982, the Archives Act 1983 and the Privacy Act 1988.’
Note: this extract makes the point that all Commonwealth Employees are bound not only by the act relating to their department (see AusTrade entry) but also by a range of other acts as shown in the previous paragraph.
The officers who provided this material stressed that all government employees are tightly constrained in their treatment of confidential materials supplied by applicants for support.