GTI Makes Comments on EBRD Public Information Policy

18 January 2008

The Global Transparency Initiative has proposed changes in the Public Information Policy (PIP) of the European Bank for Reconstruction and Development.

The Bank is just beginning a review of its policy, having issued a call for comment in late November.

The GTI comments are similar to those made during a 2006 EBRD policy review and incorporate observations made on the 2007 Environmental Policy review issues paper. The comments suggest structural changes needed to institute a true presumption of disclosure and discuss the information specifically identified for disclosure under the current PIP and how this should be further enhanced. The text of the GTI comments is available on the GTI home page.

The GTI stresses that “a true presumption of disclosure, based on a system for responding to requests for information, requires the following: (a) minimum process guarantees including a requirement to provide information in a timely manner; (b) an obligation to provide all information requested subject only to a narrow regime of exceptions set out in the policy; and (c) the right to request a review of any refusal to provide information from an independent body to ensure accountability. These standards are reflected in the GTI’s Transparency Charter for International Financial Institutions: Claiming our Right to Know,” available on the GTI Web site. The GTI commends the EBRD for adopting the Information Requests Guide, which has addressed a significant gap in the 2006 policy, but makes six suggestions for administrative reforms.

“First, the EBRD should make a commitment to assist requesters who for whatever reason are having difficulty formulating their requests.”  Also, GTI advocates that “stakeholders should be able contact any Bank staff member directly to request information.”  The comment letter urges the Bank to shore up its commitment to provide information in the form stipulated by the requester. The Bank is also asked to publish a register listing “the key documents and other records” it holds. The GTI recommends that the response time for requests be shortened from 20 to 15 days and says the Bank should make a positive commitment to allocate resources to translate documents where this is in the public interest.

The PIP is criticized for lacking clear and narrow exceptions to justify disclosure exemptions. For example, the exception for “documents intended for internal purposes” could be interpreted very differently by different people, the GTI states. “Far more problematical, however, is the absence of harm requirements for many of the exceptions.” These include, among others, documents “intended for internal purposes only, or classified under the Bank’s internal classification regime,” “Board documents,” “information in the Bank’s possession which was not created by the Bank and is identified by its originator as being sensitive and confidential” and “financial, business or proprietary information of private entities” in the absence of consent to disclose. “None of these require any proof that disclosure would be likely to harm any protected interest, the GTI wrote. “Together they allow the Bank or, where relevant, a third party to render confidential practically all information held by the Bank.”

The GTI further recommended that the administrative classification of a document by a Bank official should be irrelevant to the question of disclosure, which should be decided by direct reference to the regime of exceptions in the Policy. The GTI said the exception for internal documents should be replaced by an exception or exceptions which protect legitimate interests, such as the free and frank exchange of ideas, and that the system of originator/subject control should be replaced by an exception which protects the legitimate commercial and other interests (such as privacy) of third parties.

The public interest override should be “substantially strengthened,” according to the GTI. It should be mandatory rather than discretionary in nature and it should apply in the context of all, or at least a far greater range, of overriding public interests.

While welcoming the recent addition of an internal appeal to the Secretary General, the GTI urges creation of an independent appeal system for those dissatisfied by the response to their requests for information.

The PIP should require that the minutes of board meetings include a record of voting, opinions expressed, and written statements prepared by EDs where applicable. The Board minutes should be released after their approval by the board. The disclosure date should not exceed 15 working days from the effective date. The EBRD should release summaries and transcripts of Board discussions within 15 and 30 days of the meeting, respectively.

The GTI makes several proposals for more disclosure about basic structures at the EBRD, suggesting, for example, that the EBRD should disclose a description of Bank departments, their activities and hierarchy, plus a list of staff and contact information. The GTI said the PIP should require the disclosure of a schedule of president, executive director and senior management visits to countries of operation with adequate anticipation.

While noting several improvements in the processes for developing policies, the GTI suggests that the new PIP incorporates systematic guidelines for the development or review of policies and strategies along the specific recommendations below.

Prior to the review of a policy or strategy, the EBRD should disclose a detailed plan outlining the character of the process, its timeline, the opportunities for consultation meetings and disclosure, the GTI says. “The EBRD should release all the materials that will be presented in the decision-making – such as report on implementation of the existing policy,  issues paper, draft(s), external comments and Management’s response to comments – soon after their elaboration but always prior to the Board meeting over the strategy or policy.” Also, “EBRD should adopt a several stage policy/strategy review and development process consisting of commenting on two consequent drafts or a well elaborated issues paper and a draft and consultation meeting.

“If the EBRD seeks the active and thoughtful participation of stakeholders during the development and review of its strategies and policies, it should let the public know whether their comments and other external input were received and how they have been reflected,” according to GTI. “The EBRD should disclose second draft policies and strategies 10 working days prior to their board approval. Management’s response to comments ought to be released prior to the Board approval, at the time the final draft policy or strategy is released. New policies and strategies development and reviews should be listed as soon as their concept is approved by the Management.”

With regard to the development of Country Strategies, the GTI says the EBRD should include an action plan on implementation of the strategy within the Country Strategy documents.“

As a majority of project-specific environmental information produced during the project cycle remains confidential, the PIP needs to be expanded to include a robust set of disclosure requirements,” according to the GTI statement.

Whereas public sector project summary documents require a minimum disclosure period of 60 days, private sector PSDs are released only 30 days prior to consideration by the Board. To allow effective engagement of citizens in EBRD project financing, the EBRD should extend the disclosure period of private sector PSDs to 60 days and ensure that they are released immediately after the project has passed its Initial Review by Bank Management. A revised translation regime is also suggested.
EBRD should disclose the list of subprojects financed through FIs in the PSDs and expand on the environmental and social impacts of these in regular PSD updates, the GTI states.

In order to inform public about implementation and possible changes in the project, the EBRD should update PSDs on a regular basis throughout the project cycle, particularly during project implementation, which in practice rarely happens. The EBRD should update PSDs at a minimum annually.

Project-based factual and technical documents should be available online and linked to the project PSD.

The EBRD should disclose in its entirety all the initial discussion papers, including the Concept Clearance Memorandum, Concept Review Memorandum, Environmental Screening Memorandum, draft Environmental Summaries, Initial Environmental Examinations, and the Final Review Memorandum.

The EBRD should disclose all documents related to the loan agreement between the EBRD and the project sponsor, including the client’s Environmental Action Plan, loan contract and social and environmental impact assessment documents. The EBRD should make public board reports for private sector projects. If the reports contain any confidential information, this can be excluded from the reports.

To enable well-informed participation in the implementation stage of the project, the PIP should require the disclosure of all project implementation reports, including Annual Environmental Reports, Periodic Environmental Audits and Exit Audits.

The EBRD should systematically disclose Environmental Action Plans, particularly for the A category projects. The EBRD should routinely disclose environmental annual reports as stand-alone documents that are linked with the projects PSD. The EBRD should disclose supplemental environmental and social assessment documents unless these have been released as the part of EIA.

Environmental Impact Assessments (EIAs) for Category A private sector projects should be disclosed 120 days prior the project’s Board date to enable thoughtful input of the external stakeholders.
Environmental Analyses for Category B projects should be routinely disclosed by the EBRD. The current Policy only requires the project sponsor to disclose summaries of “the mitigation measures, action plans and other initiatives agreed” in an “appropriate language”.

The EBRD should disclose all project evaluation reports in their entirety and at the time of their submission to the Board.

The EBRD is encouraged to release topic-specific studies and analyses elaborated or commissioned from independent experts and consultants and held by the Bank, such as the recent gender analysis.  The EBRD should follow the example of the EIB whose current practice allows that.
The Anti-Corruption Report should include general information on allegations of fraud and corruption filed against EBRD staff or EBRD-financed operations, their current review status, key findings of investigation, and description of how the complaints were addressed.

The documents produced by the Project Evaluation Department should be released in their entirety and without confidentiality exceptions.

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In this column, Washington, D.C.-based journalist Toby J. McIntosh reports on the latest developments in information disclosure in International Financial and Trade Institutions (IFTI).
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