A party may own “confidential” information that it desires to protect. For example, companies consider the code behind their software to be proprietary and confidential. The University itself has confidential information about students and employees. Sometimes a party will even want to keep the terms of the contract itself confidential.
The University can agree to a confidentiality provision and should insist on such a provision when the other party may have access to information about employees and students. On the other hand, the University is subject to state public records laws that frequently require that University records (such as contracts!) be disclosed upon request.
If the other party wants a confidentiality provision, suggest something along the following:
- “The parties agree they will not disclose confidential information, including the terms of this contract, unless otherwise required to do so by law. Regardless, if either party is required to disclose confidential information, it will inform the other party prior to making such a disclosure.”
This type of provision allows the University to comply with public records laws, but also ensure the other party that they will have a chance to object to the disclosure if appropriate.
If you get a public records request for a contract (or for other documents kept by your office), contact the Office of General Counsel right away. The attorneys can help you determine whether the materials requested are exempt from disclosure and help you negotiate any confidentiality provisions.