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ANNEX A: Draft information-sharing provisions for Framework Document
Reporting performance, information exchange and confidentiality
Section 14 - Shareholder’s right to information
14.1 POL will endeavour proactively to share information on key strategic or policy issues
with the Shareholder. In addition, under the Articles (Articles 12A and 12B), the Shareholder
may “request such information in relation to the affairs of the group ... as it may consider
necessary or desirable. The company shall use its reasonable endeavours to comply
promptly ... but only in so far as the company has such information within its possession or
such information can reasonably be obtained by it” and may meet with “such specified or
other relevant directors and senior managers of the company ... to discuss the affairs of the
group”. The Shareholder may make such requests itself or via the Shareholder’s
Representative or Policy Sponsor. The Shareholder, Shareholder’s Representative and
Policy Sponsor may use the information as necessary to properly exercise the shareholder
function on the understanding that due care will be taken in handling POL’s information, as
set out in paragraph16 below. The appointment letter for the Shareholder NED contains
further provisions specifically on the sharing of confidential information between POL and the
Shareholder NED.
14.2 Notification - POL’s Board shall, prior to taking any final decision on a Relevant Issue (as
defined in paragraph 6.10 below), give the Shareholder written notice setting out all relevant
details of the Relevant Issue and the preliminary decision (if any) reached by the Board, not
less than ten Business Days before the taking of any such final decision.
An issue is a “Relevant Issue’ if, in the reasonable opinion of the Board:
(i) it is not set out in reasonable detail in an approved [Group Business Plan];
(ii) itis an issue which may have a material adverse effect upon the business or financial
prospects of the Group or any Group Company; or
(iii) it relates to regulatory matters, such as any Group Company being referred for
regulatory investigation by a relevant regulatory authority.
Section 15 - Reporting performance to the Shareholder
Regular reporting against the targets and budgets set out in the Strategic Plan
15.1 As well as meeting, and subject to, the requirements set out in the Entrustment Letter
and the Funding Agreement, on a quarterly basis POL shall provide a report via the
Shareholder’s Representative setting out:
(i) a summary of its performance over the previous quarter;
(ii) information on its expected draw-down on any available SGEI Payment for the
remaining duration of the strategic plan referred to in the Funding Agreement; and
(iii) an update on delivery against its approved business cases.
15.2 POL shall provide a regular update, typically on a quarterly basis, on the performance of
its branch network against the Overall Aims set out in the Entrustment Letter (see paragraph
2.2 above), to enable the Shareholder’s Representative to assess compliance. POL will inform
the Shareholder Representative ahead of such quarterly updates if POL fails to meet the
objectives set out in paragraph 2.2 of this Framework Document.
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POL'’s information
15.3 The Shareholder and Shareholder’s Representative each acknowledge that they shall
ensure that:
(i) Any information received or obtained from POL (including any Special Category
Information as defined in paragraph 16.4 below) shall be treated as strictly confidential;
and
(ii) any such information is treated with at least the same degree of care that it uses for its
own confidential information.
Reporting on legal risk and litigation
15.5 Notwithstanding the provisions of any protocol agreed under the terms of paragraph 16.2
below, POL shall also provide a quarterly update to the Shareholder’s Representative on any
active litigation and any threatened or reasonably anticipated litigation.
Section 16 - Special categories of information
Legally Privileged Information
16.1 The parties acknowledge the importance of maintaining the status of legally privileged
documents, while at the same time ensuring that legal risks are communicated appropriately
to the Shareholder.
16.2 In respect of any substantial piece of litigation involving POL, the parties will agree a
litigation protocol which will include specific provisions to ensure the protection of legally
privileged information which may be transmitted to the Shareholder from time to time in relation
to that litigation. The parties will ensure that:
(i) legally privileged documents and information are clearly marked as such;
(ii) individual employees handling the privileged documents and information (including
documents and information which are not marked legally privileged but by their nature are
legally privileged or which the recipient knows or ought reasonably to know is legally
privileged) are familiar with principles to which they must adhere to protect legal privilege;
and
(iii) circulation of privileged documents and information within HMG is kept to the minimum
necessary.
Requests for Disclosure
16.3 For the purposes of this section, Special Category Information shall mean:
(i) legally privileged information; and
(ii) commercially sensitive information, in each case as marked by POL (“LEGALLY
PRIVILEGED” or “COMMERCIALLY SENSITIVE”, as relevant) prior to the distribution of
such information to the Shareholder or the Shareholder’s Representative, or which is not
marked as such but which by its nature is legally privileged or commercially sensitive
information or which the recipient knows or ought reasonably to know is legally privileged
or commercially sensitive information.
16.4 The parties acknowledge that the Freedom of Information Act 2000 (FOIA) and the
Environmental Information Regulations 2004 (SI 2004/3391) (EIR) potentially apply both to
information disclosed by POL to the Shareholder or the Shareholder’s Representative and to
information held by POL that is not disclosed to the Shareholder or the Shareholder’s
Representative. If the Shareholder or the Shareholder’s Representative receives a request for
the disclosure of any information that includes within its scope Special Category Information,
it shall:
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(i) inform POL of the request; and
(ii) allow a reasonable period for representations to be made by POL as to whether
prejudice to its interests would occur were the Special Category Information to be
disclosed, provided that POL shall make such representations within 10 Business Days
from the date of the notification by the Shareholder or the Shareholder’s Representative.
16.5 The Shareholder or the Shareholder’s Representative will have regard to any
representations received pursuant to the above part (ii) but retain sole discretion as to whether
any Special Category Information falls to be disclosed under FOIA or EIR.