AfDB Directors Approve New Disclosure Policy

3 May 2012

The African Development Bank Board of Directors on May 2 approved a new policy on disclosure and access to information.

The policy, available in English and French, will be made effective in nine months.

The policy does not appear to be changed from a March draft on which the AfDB requested comments. (See previous FreedomInfo.org report.) And that version was largely unchanged from the draft of June 2012, on which consultations were held.

Critics have called the policy too narrow. (See previous FreedomInfo.org report.)

The new policy “is premised on the principle of maximum disclosure” and promises that restrictions on disclosure “will be limited.” It replaces a policy from 2005.

The Bank staff recommendation to the Board said:

The revised Bank Group Policy on Disclosure and Access to Information unveils a new approach to how the Bank embraces information disclosure, transparency, accountability and sharing of knowledge as critical aspects of development effectiveness and poverty reduction. It constitutes a major change in the information that the Bank Group may disclose – from a policy that listed which information would be made available, to one that allows disclosure of any information in the Bank Group’s possession as long as it is not on a list of exceptions. It is therefore expected to generate maximum disclosure, increased access to information and an open and much strengthened engagement between the Bank Group and its stakeholders.

Seven Exemptions

The Bank provides a list of seven exemptions, whose wording was criticized by the Global Transparency Initiative and others for being overly broad.

The 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 policy 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 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.” The comments are contained in a posted document prepared by the AfDB about the consultations.

Under the policy 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.

Under the policy, the Bank “will acknowledge receipt of written requests for information within 5 working days, and provide a more comprehensive response within 20 working days.” Complicated requests may require longer, the policy says.

Some Simultaneous Disclosure to Be Provided

The Bank will disclose some documents simultaneous with 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 provides 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 policy establishes both an internal appeals committee and a second-level appeals panel.

The second body will 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 policy.

However, the language 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 stated 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, Handbook to Be Written

Implement will be nine months from the date of board action, February 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, including “guidance on whether information is restricted or public,” and “explanation of the operations of the appeals mechanism.”

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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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