Pushing Back Against Confidentiality Clauses & Non-Disclosure Agreements

Many Big Deal agreements are shielded from public scrutiny by language that prohibits the contract details from being disseminated.  These restrictions, typically in the form of either a confidentiality clause or a non-disclosure agreement (NDA), offer little benefit to the library.  However, they allow the publisher to obscure terms that might otherwise be leveraged by other prospective customers. Many libraries have pushed back against these restrictions, in the name of greater transparency. If you are interested in striking confidentiality clauses or NDAs, here are some tips to help you.

Public institutions are often subject to “sunshine laws” that require disclosure of deal terms.  Libraries in this category may respond to confidentiality requests by stating, “As a publicly funded institution we have an obligation to our [state/province] for transparency in our collections spending. We are therefore unable to sign agreements that restrict the public dissemination of terms, including, but not limited to, pricing details.”

For public institutions subject to public records requests that are not able to pursue this strategy, a fallback approach would be to push for language in any agreement stating, “Vendor acknowledges that [name of institution], as an agency of [state/province], is subject to public records requests under applicable [state/province] Freedom of Information laws.  If [name of institution] receives a public records request for this Agreement and/or for documents and/or materials provided to [name of institution] under this Agreement, generally such information will be a public record and must be disclosed to the public records requester.”

Institutions of any type may elect to reject confidentiality clauses and NDAs as a matter of policy rather than of law.  Cornell, for example, has a statement on its website that explains, “To promote openness and fairness among libraries licensing scholarly resources, Cornell University Library will not enter into vendor contracts that require nondisclosure of pricing information or other information that does not constitute a trade secret.… An open market will result in better licensing terms.”  University of Alberta has similar language on its website. The University of Connecticut supplements their policy (which is driven by state law) with language it seeks to add to all agreements stating, “The Library is free to post contracts and costs unredacted on our website or share them with other institutions and consortia. This is an expected and permissible practice of public academic institutions engaging in the exchange of business information and a FOIA request is not needed in advance of such activity.”

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