Could the existence of an NDA itself be made contractually confidential?

Question

Thank you. Just to clarify my question:  disclosing the details of a settlement would be not allowed under a NDA (enforceable or not).  But could the NDA include a clause that made the fact that there was an NDA at all itself confidential? In other words, it would be a contract whose existence the council agrees contractually never to confirm.

Answer 1

Unless the NDA includes a specific statement to the contrary, its existence would have to be revealed in response to an FOI request. This is one of many reasons why the agreement should be drafted by a specialist solicitor.

There is, of course, no penalty for disclosure under an unenforceable NDA, so it isn't worth the paper it's written on.

A standard local council insurance package includes access to a team of legal experts ready to deal with such matters on your behalf. You are obliged as a condition of your insurance to notify them of any claims against the council, or disputes that might result in future claims, so failure to do so may invalidate your insurance. Once the insurers take over, the council will not be involved in the process, so confidentiality is less of an issue, as you can't disclose something you don't know. It also means that financial settlements are agreed by your insurer as a claim against your policy, so do not appear in your published accounts.

Answer 2

No, an NDA absolutely cannot prevent the affirmation that an NDA even exists since there are higher level duties and responsibilities which may demand disclosure of both the existence and detail of an NDA.
Is someone telling you there is an NDA but not allowing you access to it?

Comments

The ACAS guide states that an NDA can be used to keep confidential the fact that an agreement has been made.

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I wouldn’t dispute it may say that it “Can be” just as NASA might say a man “Can be” sent to the moon.
In both examples however it should go on to say “Not very often and the chances of it applying to the average Joe are beyond remote.
It is inherently dangerous to quote part references, in isolation, without context and relativity.
To give some background - we are currently dealing with a rather poorly worded paragraph which deals with the confidentiality element within a termination of contract.
I say poorly worded - because it is ambiguous and open ended - ergo unenforceable.
But probably the worst part is the paranoid lack of sense on the part of that portion of PC which was in post when this was implemented - about 50% change of Cllrs - and the attempts, by the old, to prevent the new from knowing anything about it.
And so, regardless of what ACAS might say is in the art of the possible, in practice, it is very different.
In my example, there was an absolute farce when new Cllrs questioned anomalous blips in financial records which coincided exactly with the timings of certain other public announcement and old Cllrs refused to say there had been a pay-off due to an all empompassing ‘confidentiality clause.’

It was like “Don’t tell them your name Pike!”  Pathetic and farcical.
Behaviour shrouded in an NDA is still subject to the law and there remains an OBLIGATION upon Cllrs to abide by the NOLAN principles.
Again, in my example - it very much suits those that seek to perpetuate the bogeyman myth of confidentiality because they believe it will also prevent their mismanagement and incompetence being exposed.
Guess what….

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Thank you. I wonder if the ACAS guidelines are consistent with the additional obligations a council has over and above other sorts of employer - eg. transparency legisiation and regulation.  The use of NDAs in local government has been a controversial issue. Allowing the existence of NDAs to be kept secret might be a way for councils to avoid having to, say, answer FOIs about how common they are.  I'm not advocating this, by the way.

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Bit late replying but have to agree with RoundAgainCoxn - my knowledge of this with one particular council involved multiple union-involved cases ending in payouts and NDAs, several around bullying/forcing out staff - in this one council alone because they wouldn't deal with the actual problem person who was the centre of most issues. I believe total payouts may have been near £100k, not including all the legal/investigative fees they incurred too. Shocking incompetence and a scary waste of public money - with little or no public knowledge this was happening too.

Incidentally also I believe if a future employer for example asks why you left a role you can say an agreement was reached to resolve an issue or something similar. Otherwise they are basically forcing you to lie if they try to make you deny an agreement was made.