The African Development Bank has issued an only slightly revised draft disclosure policy, which is now open for public comments in advance of a planned May 2 Board discussion.
The latest version appears to be largely unchanged from the draft from last June, on which consultations were held. Some critics said it was too narrow. (See previous FreedomInfo.org report.)
The draft is posted in English and French. Also available is a summary (English, French) of comments made on the 2011 draft. General information about the decision-making process and links to the March draft are on the Bank disclosure home page (English).
The new policy “is premised on the principle of maximum disclosure” and the AfDB final draft promises that restrictions on disclosure “will be limited.”
The Bank provides a list of seven exemptions, however, whose wording has been criticized for being overly broad.
The draft policy would provide near total protection for materials judged to be part of the deliberative process, not allowing case-by-case analysis.
Communications by the Bank president and executive directors are given blanket exemptions, subject to voluntary disclosure.
The proposal not only protects confidential commercial information, but promises confidentially for any materials submitted with a request for confidentiality. Likewise, documents submitted by member countries would be releasable only with the approval of the country.
Access to information about Bank operations and finances would appear to be quite constrained. The draft policy states: “The Bank Group will not provide access to information relating to the Bank Group’s corporate administrative matters, including, but not limited to, corporate expenses and real estate, except as contained in the Bank Group’s Program and Budget Document.”
Audit reports prepared by the Office of the Auditor General, except statistics and general information, will not be eligible for disclosure.
Responding to the criticisms that the exemptions are to expansive, the Bank wrote: “….the Bank Group sees this as a first and very substantive step but one that will require further adjustments that will increasingly narrow and clarify the list of exceptions.” A review is planned in three years. It also said, “Clarification has also been provided to provide reasons for list/categories of exceptions. The policy has also been revised to include an annex with documents that will be disclosed.”
Under the proposal, the Bank could decide to release information that would normally be restricted, but the policy does not specifically contemplate that requesters could argue that such disclosures should be made in the public interest.
Some Simultaneous Disclosure to Be Provided
The Bank has agreed to disclose some documents simultaneous to their transmission to the Board, but it appears that most records about Board meetings will be edited for public dissemination.
A footnote in the policy states: “The Board’s Work Plan and Agenda of the Board Meetings are eligible for disclosure. In addition, the following information will be eligible for disclosure, but subject to the exclusion of records or portions
thereof relating to confidential matters or documents or deliberative information: highlights of Board discussions/Minutes of the Board and Final Reports of the Board Committees in which subsequent Board discussion is not expected; reports to the Board from its Committees; summary proceedings of Annual Meetings of the Board of Governors; and Resolutions adopted by the Board of Governors.”
Documents classified as “Public” under the Bank’s documents management system “and provided by Management to the Board of Directors for information would be simultaneously disclosed to the Public at the time of their distribution to the Board of Directors,” according to the policy.
“Operational Policies and Sector Strategies provided to any committee of the Board of Directors would be simultaneously disclosed to the Public if some earlier version of the same document under consideration had been previously considered by the Board of Directors,” the draft policy also states, explaining, “This provision affords stakeholders the opportunity to review how comments provided during public consultations have been considered.”
Also, “Country and Regional Strategy Papers and Loan Proposals for sovereign guaranteed operations, would be disclosed simultaneously with their distribution to the Board of Directors, subject to the non-objection of the country/s concerned.”
The disclosure veto option for member countries exists in another context, for “Documents Prepared Jointly with Member Countries.” Similarly, the policy would provide that “the non-deliberative portion of the aide-memoire of related operational missions may be disclosed if both the Bank Group and the Country authorise such disclosure.”
Limited Appeals Mechanism to Be Established
The draft policy would establish both an internal appeals committee and a second-level appeals panel.
The second body would consist of three persons, with two members from outside the Bank. The second panel would appear to have the final word. “The decisions of the Appeals Panel will not be re-considered by any other Appeals Committee, authority or jurisdiction of the Bank Group,” according to the proposed policy.
However, the language of draft policy appears to significantly limit the grounds for appeals to the independent panel. the Bank’s comments to previous criticisms suggest otherwise.
Regarding the first stage, “The requester is able to make a case that the Bank has violated this Policy by improperly or unreasonably restricting access to information that it would normally disclose under the Policy; or to make a public interest case to override the Policy exceptions that restrict the information requested,” the AfDB states in response to comments. And in another response it states, “Appeal for disclosure of information on the negative list will be considered by the Information Disclosure Committee.” The term “negative list,” used several times in the draft policy, is not defined, although it may be synonymous with the list of exemptions.
In any case, the policy states, “ `Restricted’ documents specified in section 3.3 above (“List of Exceptions”) as not eligible for disclosure will not be subject to the second stage of appeals.”
Implementation in Early 2013
Management “intends to implement this Policy progressively, with this Policy coming into effect 9 months after its approval.” If approved in may, this would mean an approximate effective date in early 2013.
The Bank plans to develop a “handbook” and to train staff members.
A number of important matters will apparently await amplification in the handbook.
For example, responding to a comment that the Bank should disclose more project information in advance, the Bank stated, “Time?frames for disclosure of documents will be in accordance with the policies the documents relate to and guidance will be provided in the Information Disclosure Handbook. The Bank Group will make every effort to ensure timely disclosure for information relating to appraisal of projects.”
A footnote in the proposed policy states: The Information Disclosure Handbook will provide details on time periods for posting of various documents, including policy and strategy documents, for purposes of consultation and comment by stakeholders. See also Section 4.11. In addition, non-deliberative portions of the Bank’s supervision reports, Aide Memoires (when the Bank and the Borrower agree to such disclosure), and country portfolio improvement plans will be disclosed.”
Filed under: IFTI Watch