(FAQ3) Can the DWI enter into confidentiality agreements for product ingredients?
Introduction
The Drinking Water Inspectorate (DWI) operates an approval scheme, under the relevant regulations , for products made for use with water intended for human consumption. This scheme is operated on behalf of the Authorities in England and Wales, Scotland, and Northern Ireland; it covers the approval of construction products and chemicals used in public water supply.
As part of the approval process the Inspectorate must receive a complete declaration about the full formulations of all ingredients and components of the product – for further details of the level of information required please see our FAQ 14
In most cases the product information required in support of applications will include commercially confidential information. In many cases the owners of confidential formulation information may initially refuse to release this information, asking that the Inspectorate first enters into a written formal Confidentiality Agreement with them.
This document sets out how such issues can be resolved.
The Water Industry Act and confidentiality
Section 206 (Restriction on disclosure of information) of the Water Industry Act 1991 (WIA) makes it a criminal offence for anyone to disclose information with respect to any particular business which has been obtained by virtue of any provisions of the WIA and which relates to the affairs of an individual or particular business [1].
In line with WIA and government policy, DWI has procedures in place to ensure that information regarding product ingredients is kept confidential, these include
- ALL papers relating to applications are treated as confidential
- Without prejudice to the provisions of the WIA, the Freedom of Information Act 2000 or the Environmental Information Regulations, it is not our practice to release any information sent to us in confidence to anyone, apart from members of DWI and their appointed advisers, together with the designated test laboratory.
As we are already bound by law to keep information confidential and cannot contract out of these obligations, we cannot enter into confidentiality agreements. However, the information will be treated as covered by the restriction on disclosure under section 206 (1) of the WIA.
As part of the approval process, it may be necessary for us to submit formulation details, in confidence, for review by toxicologists of the UK Health Security Agency.
You can find out more about DWI and the application process from our website – How to apply for approval of my product(s)?
Applicants should take appropriate precautions to ensure that confidentiality is maintained during the transmission of information. Information can been submitted electronically as either MS Word® or Adobe Acrobat® (pdf) files by E-mail or on a CD or DVD-ROM, or as “hard copy” by post.
Responsibilities
It is the responsibility of the applicant to ensure that all information required for their application is provided to the Inspectorate in an adequate format and in a timely manner. We cannot accept responsibility for failures to provide this information, nor be responsible for obtaining this information from the applicants’ suppliers – it is the applicant who must ensure this information is submitted to us.
The Inspectorate is in no position to benefit from the confidential formulation information required in support of any application for approval, and as explained under item “2” above, it cannot enter into any type of confidentiality agreement. If the supplier of the confidential information is still unable to release the information, on this basis, then the application cannot be considered any further and the applicant will be notified that his application file will be closed unless he is able to arrange for the release of ALL the information required.
For many applications, you will be required to commission tests at one of the designated test laboratories and in some instances the selected laboratory will need to know the chemical names of some of the ingredients. These laboratories may be willing to enter into a confidentiality agreement with an applicant and/or their suppliers, if required; confidential compounds will be coded/anonymised, by letter or number, in the final report to the applicant. Please note, however, that a confidentiality agreement with a test laboratory will be for purposes of testing only; DWI will still require the full disclosure of product formulations before any requirements for testing can be issued.
E-mail disclaimers
Often confidential information required in relation to applications is submitted in E-mail format. It may be necessary, as part of the application process, to make this information available to our advisers, analysts and others. Many E-mails are sent out with a confidentiality requirement that information in the E-mail is for the recipient only and may not be made available to others. In this case we are unable to accept and use this information and it may not be possible to process the application further. To avoid this problem you should ensure that there is a specific statement in the E-mail giving your consent to the Inspectorate to pass information from the E-mail, in confidence to the advisers, analysts and other Inspectorate colleagues, if needed, as part of the application process. The Inspectorate and its advisers and analysts will take all reasonable care to preserve the confidentiality of your material
[1] Exceptions include: consent of the individual or business concerned and disclosure which is for the purpose of facilitating the performance of certain statutory functions of various bodies (including the Secretary of State, Ofwat and local authorities) – section 206(1) and section 206(3)(a) of the WIA respectively.