Express contractual confidentiality clauses arising from arm's length commercial negotiations between a public agency and a private party create enforceable obligations of confidence within cl 8(1) of Schedule 1 to the Freedom of Information Act 1992 (WA), and are not unenforceable merely because they have the effect of preventing access under the Act. However, where there is evidence that confidentiality provisions were inserted for the improper purpose of defeating FOI access to documents not otherwise confidential, such provisions may be unenforceable, with the onus on the applicant to establish the improper purpose. The question whether cl 8(1) extends to equitable (as opposed to legal) remedies for breach of confidence remains open.
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