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IFIs Have “Overbroad” Exemptions, GTI-Backed Report Finds

9th January 2012

The transparency policies of international financial institutions are too protective of internal deliberations and third-party commercial information, according to a report issued by the Centre for Law and Democracy with support from the Global Transparency Initiative.

The IFI’s exemptions in these and other areas are “overbroad” when contrasted with national policies, the report finds, calling the IFI approach “much more secretive.” The report was written by Michael Karanicolas and Toby Mendel of CLD, a Canadian-based nongovernmental organization. It is available at http://www.law-democracy.org

The report acknowledges that the IFIs “have come a long way” especially recently with “the shift from the positive list approach – whereby only information on a positive list was subject to disclosure – to a so-called negative list approach – whereby all information except information on the negative list (or list of exceptions) is subject to disclosure.”

However, “the most significant remaining barrier to full implementation of the internationally recognised right to information is the overbroad negative lists, or regimes of exceptions, that are still in place in most IFI policies, the report states. The protections for commercial interests of third parties and internal deliberations are understandable and legitimate, according to the report, but exemptions as written are too broad and need “a far more careful calibration.”

Harm Test Needed

“In both cases, a requirement of harm needs to be imposed,” recommends the report.

Instead of allowing commercial parties freely to exert claims of confidentiality, “the exception should apply only where disclosure of the information would in fact harm their commercial interests.” The parties have a right to be consulted, so that decision makers can be sure to take their claims into account, but in the end the test is an objective one, according to the report.

“Longstanding practice at the national level” of using a more objective standard “clearly demonstrates that third parties will continue to engage and do business with the public sector even if the information they provide will be disclosed subject only to narrow protections for commercially sensitive information.”

Similar Case Made for Internal Deliberations

Public bodies “do have an interest in preserving the candour of internal deliberations,” the report says, “but the exception in favour of such deliberative information should be limited to what is necessary to protect this interest.”

“Once again, national experience demonstrates that the practice at several IFIs of throwing a cloak of secrecy over all internal information is simply not legitimate.

Public Interest Override

The report also calls on national experience to advocate for “a strong public interest override to both of these exceptions.“

Such an override would apply when disclosure would serve the larger public interest, notwithstanding arguments for nondisclosure. “The limited and public interest overrides that are found in most IFI disclosure policies, which are discretionary and impose unrealistically high standards for application, do not conform to national practice and cannot be justified,” according to the CLD analysis.

GTI Submits Comments to African Development Bank

9th August 2011

The Global Transparency Initiative Aug. 9 provided comments to the African Development Bank on its proposed new policy on access to information.

GTI welcomed the commitment by the Bank to move to a proper presumption of disclosure and to establish both internal and external appeals mechanisms to review refusals to provide access.

At the same time, the draft AfDB “fails in important ways to conform to the standards set out in the GTI Charter.”

Among other things, the GTI recommended that the Bank should:

- Recognise the human right to access information.
- Commit to disclose key documents on a proactive basis.
- Provide access to draft documents.
- Establish rules regarding the procedures for making, processing and responding to requests.
- Substantially revise the regime of exceptions and create a stronger public interest override.
- Expand the scope of the appeals mechanism
- Promote the Bank transparency policy internally and externally.

The GTI comments were written by Toby Mendel, Executive Director, Centre for Law and Democracy, and Toby McIntosh, Editor, FreedomInfo.org.

Related resources

GTI Comment to AfDB, Aug. 9, 2011
Published 9th August 2011 by GTI

GTI Challenges ADB to Improve Disclosure Proposal

21st July 2011

The Global Transparency Initiative has challenged the Asian Development Bank to improve its draft Public Communications Policy (PCP), saying it “now has a chance to jump ahead of the World Bank.”

Addressing issues raised by GTI “would place the ADB at the forefront of IFIs in terms of adhering to the international standards regarding the right to information,” according to the July 4 submission.

The comments address the so-called W-Paper, the pre-final draft of the revised PCP. This version was considered by the Board in its meeting on 16 February 2011, with the Board comments and views serving as input for the preparation of the final draft PCP (called the R-Paper). The R-Paper is targeted for final approval by the Board in September 2011.

The GTI highlights the major faults in the W-Paper in three major ways.

“First, the W-Paper does rather little to address the serious problems with the regime of exceptions under the 2005 PCP. It still allows for a third party veto on disclosure, and includes a number of category-based (instead of harm-based) exceptions.”

The GTI submission says further: “Third-party veto and category-based exceptions fail to conform to a rights-based approach to access to information, that is, one that upholds a presumption in favor of disclosure, subject only to a narrow set of harm-based exceptions.”

“Second, the W-Paper introduces a new provision (par. 103) granting the Board and the President the prerogative to restrict access to information not otherwise covered by any exception.”

The GTI explains: “Giving the President and the Board this power to override the policy at their discretion is directly contrary to the spirit of recognizing a people’s right to information. It is also unnecessary given that the regime of exceptions is already quite broad enough to protect all legitimate confidentiality interests. This is also reflected in the fact that national right to information laws do not provide for such override powers.”

“Third, despite the improvement in the substance and language of the provisions on access by affected people, the W-Paper only partially addresses the 2005 PCP’s lack of commitment to ensure effective access on the part of affected people.”

The GTI comment continues:

“The W-Paper still passes much of the responsibility for disclosing information to the borrowing government or private sector sponsors. This has the effect of significantly limiting the ADB’s responsibility for access by affected people, so that is ranks far below the Bank’s deep level of involvement in project conceptualization, approval and implementation.”

“This could have been corrected by simply committing to the joint development (with governments and private sector clients) of project or program communications strategies, instead of merely making a commitment to assist clients develop these strategies.”

Related resources

GTI June 2011 Comment to ADB
Published 9th August 2011 by GTI

GTI, IDASA Fault Execution of AfDB Policy

24th June 2011

The Global Transparency Initiative and Idasa, an Africa democracy institute based in South Africa have issued a report documenting the difficulties of obtaining information from the African Development Bank.

In late 2009 and early 2010, researchers asked for specific documents concerning five regions of Africa. They visited AfDB offices and used the AfDB website, but were frequently frustrated.

They found problems including:

- inconsistent interpretation of policy,

- a weak information management system,

- poor staff training,

- problems with the website and search engine,

- weak disclosure of early-stage project documents

The detailed report , “African Development Bank Information Disclosure Policy Implementation Research Project ,” was written by Lindlyn Tamufor and Gary Pienaar. Tamufor is the Coordinator of the International Alliance on Natural Resources in Africa, and Pienaar is Senior Researcher in Idasa’s Economic Governance Program.

The report concludes with a series of recommendations which come as the Bank is in the midst of reviewing its 2005 disclosure policy.

“Firstly, the Bank should improve the quality, comprehensiveness, consistency and timeli­ness of its in-country information dissemination processes,” according to the report. “There is a need for the Bank to improve the efficiency of its information management system, which underlies and underpins the Information Disclosure Policy.”

“It is clear that there is uncertainty within the Bank’s regional and country offices about whose responsibility it is to ensure that documents are made available to the public in a timely manner. Some officials contacted during this research project seemed either to be unaware of the Policy itself, or of which of their colleagues is authorised to take decisions about the release of certain documents, or unaware of which documents should be automatically available. Some justified the unavailability of some information on the basis of their uncertainty concerning the meaning of parts of the Policy.”

Training Needed

Another recommendation urges increased staff training, noting that “there appears to be no coherent and consistent guidance available to staff.”

“Thirdly, the Bank should also develop a more customer-oriented approach to its informa­tion dissemination by providing the Bank’s documentation in at least one of the official national or local languages of the people most directly affected by its operations,” the report concludes. The Bank staff should work in closer consultation with civil society organizations and other stakeholders to proactively and responsively assist people to first identify and then obtain the information they need in a form that is more readily accessible to them.

Disclosure Gaps, Website Weaknesses

The Bank’s website, the report finds, is inconsistent in its posting of project-related documentation, for example, failing to put project documents under the relevant country name. Moreover, the research found a variety of shortcomings with the website.

“Information regarding prospective projects seems to be the most consistently unavail­able on the website and at the field offices,” report states, commenting that “this is probably the most important stage for any project, as this is when affected people have the most meaningful opportunity to express their views and have their voices heard regarding the design and impact of an envisaged project.” It suggests, “Consideration should be given to whether or not any existing performance management measures are adequate to enable those responsible to monitor officials’ compliance with the Policy.”

In addition, “Information is unevenly available on the website about the institution’s operations at the country and investment level, such as country strategy papers.”

More specifically, the report states: “It is noticeable, for example, that a large gap exists in documentation available regarding projects initiated during 2009, while projects initiated during the early part of 2010 appear to be more comprehensively reflected on the website. However, there appears to be a continuation of the pattern of limited information being available regarding projects under implementa­tion at the Bank, constraining efforts to monitor these activities. “

Other Documents Sought

It is recommended that project appraisal reports, prospective project briefs, periodic pro­ject progress assessment and evaluation reports during project implementation, should be made available, as required by the Policy.

The report also calls for the disclosure of upstream country analyses conducted by the Bank, including economic and sector analyses, country strategy papers and updates, poverty reduction strategy papers, and economic and operations policy papers.

“It is recommended that the Policy’s requirement that these documents should be dis­closed is adhered to in practice, and that the Bank should create in advance an indicative list of the documents that should be completed in particular situations, or that should be expected at various stages of a particular project, including standard timelines.”

Researchers

The bulk of the report documents in detail the sometimes frustrating efforts of researchers to obtain targeted information about AfDB activities in different areas. The report also reflects a few examples of country offices where staff were well-informed about the policy and its implementation, and documents and information were readily supplied. A notable example is the Ghana Country office.

Researchers

The researchers in each of the Bank’s five operational regions were:

Andrew Kumbatira, Executive Director of the Malawi Economic Justice Network (MEJN)

Karim Trabelsi, an academic economist at the University of Tunisia.

Maurice Ouma Odhiambo, a Programmes Officer at Ujamaa Centre.

Moussa Sall, Deputy Head of Communications and PR as well as legal advisor for Groupe APERCO/MAOA, a major fishing company in Mauritania.

Lindlyn Tamufor: Independent Consultant

Related resources

GTI Study of African Development Bank Disclosure Policy July 2011
Published 9th August 2011 by GTI

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