12 OCTOBER 2009
World Bank “Paradigm Shift” for Disclosure Policy Subject to Variety of Limitations, Caveats, Exceptions

The World Bank staff October 2 proposed a new disclosure policy that would take some big steps, but also some sidesteps.

The draft on which public comment has been invited probably will be discussed by the Executive Board November 17. It contains a wide range of improvements, including:

• a real likelihood that more documents would be disclosed
• more timely disclosure, particularly of some staff recommendations as they are sent to the Board,
• more Board transparency with the release of summaries of Board meetings,
• improved request mechanisms, and
• a unique, independent appeals mechanism.

Broad Exceptions
A key conceptual advance is the “paradigm shift” to a “presumption of disclosure” with defined “exceptions.”

But this much-touted advance turns out to be constrained in significant ways. The exceptions are very broad. To begin with, the presumption of disclosure would not apply at all to the Bank’s “deliberative process”—virtually ruling out any possibility of obtaining documents developed during the often lengthy policy formulation period.

Many national freedom of information laws do not go this far. Instead, the better ones safeguard internal discussions, but allow for the possibility of disclosures if they would not harm legitimate interests, such as the free and frank provision of advice.

Such a balance is possible. The deliberative process exemption proposed in the “World Bank Model Policy” written by the Global Transparency Initiative, for example, would allow disclosure determinations in the context of a particular request based on several criteria. This would permit disclosure of factual information, but still protect such things as preliminary drafts or memos exchanging opinions.

The GTI model deliberative process exemption states:

42. The Bank may refuse to disclose information where to do so would, or would be likely to:

a. Seriously frustrate the success of a policy, by premature disclosure of that policy.
b. Significantly undermine the deliberative process within the Bank by inhibiting the free and frank provision of advice or exchange of views.
c. Significantly undermine the effectiveness of a testing or auditing procedure used by the Bank.
d. Cause serious prejudice to an ongoing investigation by the Bank.

43. The constraints set out in paragraph 42 do not apply to facts, analyses of facts, technical data or statistical information. The constraints set out in paragraph 42(a) and (b) do not apply once the policy has been adopted.

Government and Third-Party Vetoes
The just-proposed Bank policy also would give member governments and third parties, such as companies and contractors, broad, unchecked discretion to limit disclosure in some key areas.

Under the proposal, information provided “in confidence” by a member country would be off limits, unless the country gives permission for disclosure.

The GTI suggested less restrictive language, which reads in part:

44. The Bank may refuse to disclose information provided to it in confidence by a State or another international organisation, where to communicate it would, or would be likely to, seriously prejudice relations with that State or other international organisation, on an objective standard, or endanger the future flow of information from that State or other international organisation.

Some key project evaluation documents that Bank watchers had hoped would become available, now indeed may be available, but with a catch. Aide memoires, which describe the joint view of the Bank and the government about the status of projects after approval, will be released only if the borrower agrees.

Also, Implementation Status and Results (ISR) Reports will be redesigned into two sections so that “objective information” about project implementation will be made public, but comments by Bank staff and “retailed risk ratings” would not be kept private.

The proposed policy does open the door to the release of a variety of other evaluation reports without country control. Some so-called “country-owned” documents must be disclosed according to existing Bank policy, largely goals statements developed by the governments.
However, for a series of other documents which describe Bank policy, the draft disclosure policy states that “the Bank will continue to exercise the discretion it always has” in making the documents public. The Bank will consult with governments about information that is confidential or, if disclosed, would damage Bank–government relations. In the end, the policy states, “the bank decides whether and how to adjust the document to address the matters of concern to the country.”

Similarly, information provided by third parties to the Bank would be largely exempt from disclosure. Requests for such information would not be judged on the basis of whether disclosure would expose trade secrets or commercially sensitive information—a test typically used in freedom of information laws. The proposed exemption would cover “Information provided in confidence by a third party (including proprietary information), without the express permission of the third party concerned.”

The GTI recommended:

38. The Bank may refuse to disclose information provided in confidence by a third party where:

a. To disclose the information would, or would be likely to, cause serious prejudice to the trade, industrial, commercial or financial interests of a party other than the requester.
b. To disclose the information would, or would be likely to, prejudice the future supply of similar information from a similar source, and the Bank has a significant and legitimate interest in the continued supply of such information.

In addition, the Bank proposal includes a final exemption apparently designed to veil Bank budgetary matters. Proposed exception 16(h) would exempt "corporate administrative matters, including but not limited to corporate expenses, procurement, real estate, and other activities."

Harm Test Limited
One possible mitigating clause appears not to cover government and third party situations.

The Bank in its “Principle 2: A clear list of `exceptions’ “reserves the power “under exceptional circumstances” to disclose information that might fall under the exceptions “if it determines that the benefits of disclosure outweigh the potential harm of disclosure.” This sentence ends with a link to Footnote 11. The small print says the harm test would not apply 7 of the 10 exceptions, including information supplied by countries and third parties.

Also, the proposed new independent appeals body would not be permitted to examine appeals by those seeking to make a public interest case for disclosure.

More Drafts to Be Released, but With Government Veto
Notable gains would be made, if the proposed policy is adopted, regarding disclosure of staff recommendations to the Board, but again, with caveats.

Many so-called “draft” documents would be released at the same time they are sent to the Board. Importantly, this would include “Sector Strategy papers and operational policy papers” which define Bank policies at macro levels.

However, for a major group of documents, which describe staff recommendations for overall policies about borrowing countries and specific projects, the Bank staff would permit countries to block the release of such documents—Country Assistance Strategies, Project Appraisal Documents, and Program Documents.

Also, the proposal seems lacking in specifics and clarity because these determinations would be subject to future “detailed guidance.”
 
Board Summaries Proposed for Release
The draft policy would allow for the dissemination of now-secret summaries of Board meetings. The summaries do not attribute the comments of Board members by name, but provide a fairly robust description of the meetings.

The Bank does not propose to disclose the formal statements of the Executive Directors on matters before the Board, and would protect them for 10 years. Directors who represent more than one country have been particular sensitive to disclosure of their statements, out of concern that their release would call more attention to decisions with which their constituent governments disagree.

By Toby McIntosh

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