ADB Issues Second Draft of Proposed Disclosure Policy

2 December 2010

By Toby McIntosh

The Asian Development Bank Nov. 26 proposed to release more documents prior to Executive Board meetings than previously proposed and to create an appeals body for disclosure requestors.

The ADB’s second draft revision of its public communications policy would somewhat expand the “simultaneous disclosure” policy, under which certain  documents are made public at the same time they are sent to board members.

The revised ADB draft also now includes a two-stage appeals mechanism, adding an independent appeals panel. The review body, however, would not be allowed to invoke the public interest test to override ADB decisions to keep documents confidential.

The list of exemptions, a key controlling element in disclosure policies, is reorganized and streamlined, but not substantially changed from the original list. The previous exemptions were criticized by commentators such as the Global Transparency Initiative and the NGO Forum on the ADB as being too broad.

The proposed policy, in both its first and second draft, would put new emphasis on timely and effective communication with affected persons about proposed projects and policies.  However, calls by the NGO Forum on the ADB for joint development of communications plans about projects were not included.

Comments Sought by Dec. 26

Comments are being sought by Dec. 26 on the new draft.  Board action is expected early next year.

A “working paper” to be fashioned after the comment period  is expected to go to the Board in mid-February, with the final version (the R-Paper) to be considered by the Board in mid-April.

More Simultaneous Disclosures Envisioned

In its first draft, the ADB proposed the simultaneous release of some project and policy documents as they sent to the board, subject to various limitations. The second draft somewhat broadens the scope of this type of disclosure.

The ADB has now proposed to add final Country Partnership Strategy documents and Regional Cooperation Strategy documents to the list. However, affected country may veto the release. Both types of documents are already released in draft form for stakeholder consultation.

Regarding policy or strategy papers, the ADB initially contemplated the pre-meeting release of a “chairman’s summary.”  Under the new proposal, the final draft that goes to the Board (known as the R-Paper) will be made available, providing that have been the subject of public consultations and which the Board has previously reviewed an earlier draft.

Other simultaneous disclosure proposals, previously made, would cover the materials on proposed public sector projects, so-called sovereign loans. The key document that goes to the Board is the Report and Recommendation (RRP) of the President (RRP). The country veto provision also would apply until after approval.

Simultaneous disclosure still will not apply to loans to the private sector. Only after the Board meeting will the ADB post an “abbreviated version” of the RRP for “nonsovereign” projects, excluding commercially sensitive information and the ADB’s assessment of the project’s risk.

Already  disclosed “upon their circulation to the board” are annual documents that list lending and nonlending projects, the “country operations business plans” and “regional operations business plans.”

The simultaneous disclosure requirements also would require the disclosure of key supporting documents referred to in the primary materials.

For both sovereign and nonsovereign projects the Bank prepares documents that are released as the projects are processed and implemented. They will now be renamed called “project briefs.”

Exemptions Largely Unaltered

Despite objections that the proposed exemptions were too broad, the ADB did not substantially modify strong protections for internal documents and materials from the private sector.

Critics said exemptions to protect the deliberative process were drawn too broadly and did not provide clear standards for judging actual harms.

The exemption to prevent the damaging release of proprietary business information is expanded to include “any confidential business information” covered by confidentiality agreement reached with the ADB.  This language is contained in another section of the policy. Critics have called the “confidential business information” too vague.

The section designed to prevent the disclosure of financial information that could “prejudice” bank operations is now more elaborate.

The latest draft drops an exemption on procurement information because its aims are covered by other exemptions. 

Disclosures about legal agreements are also addressed, with disclosure allowed if the borrower consents and after “confidential information” is excised.

Override Provision Shortened

The proposed policy continues to include a “public interest override,” the wording of which has been “streamlined.”

The draft says information may be disclosed notwithstanding the exemptions “if ADB determines that the public interest in disclosing the information outweighs the harm that may be caused by such disclosure.” Dropped in this version is another clause that would have allowed disclosure if a member country concerned requested disclosure in accordance with its laws.

Two Stage Appeals Process Proposed

The new draft includes a three-person Independent Appeals Panel, appointed by the board, to consider appeals from requestors.

The first tier for appeals is a Public Disclosure Advisory Committee made up of four top ADB officials. Those appealing must make a prima facie case that the public communications policy was violated or make “a public interest case” to override the decision against disclosure. Decisions on “public interest” cases may not be appealed to the Independent Appeals Panel.

Also, neither panel can override decisions by the ADB President or the Board to bar disclosure “in exceptional circumstance.”

The Independent Appeals Panel is charged in the policy to consider appeals alleging that the ADB violated the policy by restricting information. The panel is instructed to “consider the Policy’s exceptions,” but the next sentence states, “The IAP will not consider requests to override the Policy’s exceptions.” The panel’s decision would be final.

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ABOUT IFTI WATCH

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).
Contact: freeinfo@gwu.edu or
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