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Reaping the benefits and managing the risks

OFFICE OF THE PRIVACY COMMISSIONER

Corporate Partnership and Sponsorship Policy

1) Introduction

The Office of the Privacy Commissioner (the Office) seeks to promote and protect privacy in Australia. To help achieve this, our Strategic Plan 2007-09 commits us to four overarching goals:

• High quality results.
• Increased awareness of privacy choices and obligations within the community.
• Robust relationships.
• A confident and competent workforce.

To meet these goals, the Office regularly considers a broad range of working arrangements and resourcing options. Part of this process is an assessment of partnership and sponsorship arrangements with a variety of public sector agencies, businesses, and not-for-profit organisations.

The scope of partnership and sponsorship arrangements is broad – they may range from providing speakers to reach key audiences, supporting conferences and workshops, participating in networking events, and facilitating supply of information and advice to organisations. They may also include the acceptance of funding to support activities, such as: research, training, promotion, and compliance and policy development processes.

This paper presents legal, ethical, and practical issues to be addressed when considering the establishment of partnership and sponsorship arrangements where there is a substantial transfer or joining of resources.

Section 6 and Attachment 1 together offer a practical checklist of points to consider in developing a partnership/sponsorship agreement.

2) What are sponsorships and partnerships?

The Australian National Audit Office (ANAO) defines corporate sponsorship as an arrangement between an Australian Government agency and a private sector company, corporation or other government entity in exchange for money, goods or services to support the activities of that agency.

A partnership may be considered to be an arrangement between an Australian Government agency and private sector company, corporation or other government entity to jointly achieve a shared goal.

3) The value of sponsorship and partnership arrangements to the Office

Appropriate partnerships and sponsorships will increase the range and level of financial and other resources available to the Office to assist it in promoting and protecting privacy in Australia.

4) Selecting partners and sponsors

The Office welcomes offers of creative partnership and sponsorship arrangements that may include monetary, non-monetary, and other forms of support for its activities.

The Office will consider partnership and sponsorship arrangements with public sector agencies, businesses, not-for-profit organisations and individuals where such an arrangement is consistent with the Office’s purpose of promoting and protecting privacy in Australia. The value and potential of all substantial proposed arrangements will be considered against criteria presented in this document.

The Office reserves the right not to accept any proposals, and in particular any that are or may be perceived to either:

• be in conflict with goals set out in its Strategic Plan 2007-09 or subsequent plans; or
• diminish its public standing or actual or perceived independence.

5) A special consideration – regulators undertaking partnerships and sponsorship arrangements

Partnerships and sponsorship arrangements hold both benefits and risks for public sector agencies. Benefits associated with entering into partnership and sponsorship arrangements with government agencies or private sector organisations must be balanced against the risk that they might create negative public perceptions of the arrangements or be counterproductive in some other way.

As a regulator of privacy in Australia, the Office is particularly conscious of its obligation to provide an independent, fair and impartial service to the community, business and government. To maintain public confidence in this role, the Office is particularly mindful of guidance from Australian Government agencies responsible for maintaining the integrity of public sector organisations and regulators.

As a regulator, the Office will, in particular, need to carefully consider sponsorship arrangements proposed by organisations that may be the subject of complaint or investigation under its jurisdiction. This document provides guidance as to factors to be included in this consideration.

Both the ANAO and the NSW Independent Commission Against Corruption (ICAC) have produced guidelines for public sector agencies considering sponsorship and partnership arrangements with the private sector. The Australian Public Service Commission (APSC) has recommended that agencies preparing guidelines on sponsorship should refer to the sponsorship-related advice issued by the ANAO and ICAC.

In its publication, Sponsorship in the public sector, ICAC advocates ten sponsorship principles for public sector agencies:

1. A sponsorship agreement should not impose conditions that would limit, or appear to limit, an agency’s ability to carry out its functions fully and impartially.
2. There should be no actual conflict between the objectives/mission of the agency and those of the sponsor.
3. An agency with regulatory responsibilities should not seek or accept sponsorship from organisations which may be subject to regulation or inspection during the life of the sponsorship. However, where adhering to this would unduly limit the agency’s sponsorship prospects, the agency should manage the risks by employing specific techniques detailed in the ICAC publication.
4. Sponsorship should not involve explicit endorsement of the sponsor or its products.
5. Where sponsorship involves the supply of a product, the agency should measure that product against objective criteria.
6. Staff of the agency should not receive personal benefit from the sponsorship.
7. Sponsorship should be sought and granted by an open process.
8. Sponsorship proposals should be assessed against predetermined criteria.
9. A sponsorship agreement should be in writing.
10. Sponsorship arrangements should be approved by the CEO and described in the annual report.

6) Establishing and managing partnerships and sponsorships

This paper seeks to establish a sound risk assessment and management process, and provide a mechanism to facilitate appropriate decisions over whether to enter into a partnership/sponsorship arrangement, and when the Office should withdraw from such relationships. The proposed process will support the establishment of partnership and sponsorship arrangements that will improve the Office’s ability to meet its strategic goals, and manage any associated risks.

The process involves:

• An initial consideration of purpose, benefits, costs and risks.
• Preliminary discussions with Executive and appropriate Directors.
• Assessment of potential partners.
• Submission of a proposal to the Executive.
• Formalising the agreement.
• Management of the partnered project.
• Review and reporting of the partnered project.

a) Initial considerations

Initial consideration of a potential partnership or sponsorship arrangement should address purpose, anticipated benefits and costs, and potential risks. Primarily, the purpose must be consistent with the strategic objectives of the Office, the benefits should outweigh the costs, and all identified risks should be able to be managed. A guide as to factors to be considered in these assessments is included in the Decision Guide at Attachment 1.

If a potential partnership/sponsorship passes these initial considerations then it is appropriate to take the next step.

b) Preliminary discussions

No action on developing partnered or sponsored projects should take place without the knowledge and support of the Executive. Potential projects should be raised with Directors for discussion at Leadership meetings. If there is Executive support, then exploratory discussions with appropriate potential partners/sponsors can take place.

c) Assessment of potential partners and sponsors

When discussions with potential partners or sponsors have generated some strong prospects, those partners should be formally assessed against the benefits and risks categories in the Corporate Sponsorship and Partnerships Decision Guide as at Attachment 1.

d) Project submission to Executive

If potential partners or sponsors are assessed as suitable, then a submission should be made to the Executive describing:

• Purpose, scope and duration of the proposal.
• Benefits to the Office of participation in the project, including revenue targets .
• Benefits to the partner of participation in the project.
• An analysis of risks (including a costing of Office resources required to run the project), and advice as to how these risks should be managed. Sponsorship and partnership arrangements should be quantified in order to properly value the relationship. Association with the Office has a considerable commercial and reputational value to private sector and public organisations that should be properly valued and not be undersold. Consideration should be given to expenditure, costs of establishment and administration of contracts, costs to the Office of delivering the outcomes promised to partners, and costs to the Office if the partnership agreement is breached and/ or cancelled.
• The proposed management arrangements for the project, including the nominated project manager and project committee (see (f)).
• The arrangements with which the partnership or sponsorship will be formalised, which will ensure that conditions of the partnership are observed.
• Whether the Office has sufficient resources available to meet the administrative requirements of the partnership and sponsorship policy, and the specific requirements of the contract with the partner.
• A recommended course of action.

e) Formalising the Agreement

Depending on the scope of the arrangement, sponsorship and partnership agreements should be subject to a written agreement. This might take the form of an extensive MOU, a contract or an exchange of letters.

The basic items that should be covered in an agreement are the:

• purpose, scope and duration of the project.
• roles, responsibilities and deliverables of both parties.
• benefits to the Office and the proposed partner, including:
  • economic benefits;
  • branding of any events, resource, or activities;
  • the form or forms of partnership acknowledgment to be available; and
  • ownership and use of any intellectual property generated.

For more complex arrangements, the following conditions of the partnership/sponsorship should also be included:

• consequences of a breach of the Privacy Act (including if necessary, immediate termination of the partnership by the Office), or a breach of the agreement, any conditions affecting the consequences of changes which may occur over time, such as a shift in the relationship, new policies, new corporate missions or objectives;
• a conflict resolution clause;
• factors affecting renewal, and other factors identified at the Decision Guide at Attachment 1;
• the need for sponsors and partners to be aware that any information relating to commercial arrangements entered into by the Office may be requested by the Senate Estimates Committee, and the Office would be obliged to table that information;
• the need for sponsors and partners to understand and agree to uphold the APS Values if a product, service or event is to be co-badged with the sponsor/partner;
• any special conditions that may apply; and
• management arrangements for the project that demonstrate the Office’s independence (these arrangements should address the list under managing the project in the Decision Guide at Attachment 1).

The agreement should also emphasise that the partnership will have no actual or perceived impact on the independence of the Office, nor its ability to carry out its functions with integrity.

f) Management of the project

Management of partnered/sponsored projects must be transparent to outside observers, and meet the highest standards of accountability. This will ensure that the Office continues to be in a position to demonstrate its independence as a regulator.

Each project must have a project manager agreed by the Executive. The project manager is responsible for developing a project management plan as soon as the project has been approved. Depending on the scope of the partnership/sponsorship, the plan could include:

• If necessary, the identity of the project coordinating committee, a cross agency committee which will be either the Leadership team, or their delegates;
• the reporting cycle;
• acquittal arrangements;
• action plan and timeframe; and
• evaluation of the project.

Consideration should be given to providing input for external stakeholder input. Mechanisms could include involving the Privacy Advisory Committee, establishing a steering or advisory committee for the project, or different stages of the project.

g) Review and reporting of the project

Australian Government accountability obligations require that the Office report on sponsorship and partnership arrangements. Income or other benefits generated from sponsorships and partnerships are reported in Australian Government budgetary processes including the Annual Report. Equally, sponsoring or partnering organisations are likely to require an acquittal of expenditure and report on outcomes to measure performance of investments.

To achieve these requirements, the Office will present details of sponsorship and partnership arrangements in its Annual Report.

Public reports on arrangements will include:

• Name of sponsor or partner;
• Purpose of relationship;
• Value;
• Duration; and
• Evaluation summary.

7) References and further information:

ANAO (1997), Management of corporate sponsorship, http://gov.au/uploads/documents/Management_of_Corporate_Sponsorship.pdf.

APSC (2007), APS Values and Code of Conduct in practice (Section 2: Relationship with the public, chapter 6: Working with the private sector and other stakeholders), http://gov.au/values/conductguidelines8.htm.

ICAC (2006), Sponsorship in the public sector, http://gov.au/files/pdf/sponsorship_in_the_public_sector.pdf.

Attachment 1

Corporate Sponsorship and Partnerships Decision Guide

Office of the Privacy Commissioner

Purpose

Purpose must be consistent with the Office Strategic Plan and/or objectives, and communications/ issues management approach.

Benefits

Risks

Conditions

The following conditions will apply to all partnership/sponsorship arrangements:

• Each such arrangement that involves a transfer of resources to the Office of the value of $5,000 or more must be covered by a partnership/sponsorship agreement.
• The agreement established must be consistent with Office and public sector codes of conduct.
• Breach of the agreement without prior agreement between the parties will lead to a termination of the agreement.
• Neither employees of the Office nor the partnering organisation will accrue personal benefit from the arrangements.
• The arrangement will not impact on the Office’s independence, or its impartiality in investigating and resolving privacy complaints, and representing the privacy interests of the individual.
• Partners/sponsors should be aware that the contract may be made public, eg by a request from the Senate Estimates Committee.
• The need for sponsors and partners to understand and agree to uphold the APS Values if a product, service or event is to be co-badged with the sponsor/partner.
• The partner/sponsor must be able to demonstrate support for and understanding of the objectives of the Office.

Management of the project

• Full cost benefit analysis complete and shows overall benefit.
• Full risk analysis complete, and shows all risks can be managed.
• Project manager and project committee nominated.
• Formal agreement between the partner or sponsor and the Office established.
• Acquittal process developed.
• Approval by the Privacy Commissioner.