Can a confidentiality agreement require you to not say who your client was?

Question

Does the following Confidentiality Agreement mean the Consultant cannot say who the Client who he was doing the work for was? For example if Bob was hired by Staffing Agency to work at McDonald's, does that mean Bob isn't allowed to say he worked at McDonald's? Upon termination I was told that it does.

In the course of performing services, the parties recognize that Consultant may come in contact with or become familiar with information which Agent or its clients may consider confidential information. This information may include, but is not limited to, information pertaining to pricing information, strategy, research, or work methods of Agent, as well as information provided by clients of Agent for inclusion in work to be developed for clients, which may be of value to competitors of Agent or its clients. Consultant agrees to keep all such information confidential and not to discuss it with anyone other than appropriate Agent, employees, consultants or their delegates. The parties agree that in the event of a breach of this Agreement, damages may be difficult to ascertain or prove. The parties therefore agree that if Consultant breaches this Agreement, Agent shall be entitled to seek relief from a court of competent jurisdiction, including injunctive relief, and shall be entitled to all financial damages, attorney fees, and associated court costs.

In general I find Confidential Agreements confusing. Often times it's not explicitly stated what is confidential. Is it based on what a reasonable person would consider confidential? Or can the party providing the information decide arbitrarily what's confidential?

Answer 1

Nothing that I see in that part of the agreement bars the consultant from publicly disclosing the client (see below though).

Confidential information (CI) is anything that would be considered proprietary information by the party, something that isn't general public knowledge. If you are in doubt of something being CI, ask your client. Technically you should consider any information provided for the scope of your consulting work "de-facto" CI.

But they can't arbitrarily say something is confidential. For example if Bob was provided information about the hamburgers being a beef product, that is public knowledge. McDonalds couldn't later say that it was CI and seek relief under the agreement. Technically anything that is known to the general public or publicly disclosed by the company is no longer considered CI.

But your first example may have some caveats. Bob could probably not represent himself as having been employed by McDonalds, since he was actually employed by the staffing agency as a consultant. He could say that he worked as a consultant for Staffing Agency on a McDonalds assignment (unless there were more terminology or additional agreements when being terminated).

Answer 2

A good case for if something is CI is if you can't find the information outside of the Client's information sphere.

However, just because you did a tightly limited search for identical information and found it, you also have to look at if it was an intentional disclosure or if it was leaked and the length of time it has been exposed.