World Bank Appeals Board Issues First Decisions

4 March 2013

The World Bank’s external appeals board has issued its first two decisions, both confirming denial decisions made by the internal Access to Information Committee (AIC).

In one decision, the Appeals Board agreed that reports on the implementation of a controversial transportation project in India should not be disclosed. The decision draws attention to a change in the Bank’s access policy that may allows for the future disclosure of factual information contained in implementation reports, for those dated after July of 2010 when the new access policy went into effect.

In the other decision, the Appeals Board caused the AIC to reconsider its original denial, but the result was the same. On the procedural front, however, the Appeals Board broke new ground by remanding the matter to the AIC.

On substance, the AIC’s second decision deals extensively with the Bank’s ability to deny access to reports provided “in confidence” by the governments. Among other things, it finds that the “public interest override” in the access policy does not apply to such information.

These are the only two decisions reached by the Appeals Board since its creation in 2010. The names of the appellants are not disclosed. The internal appeals body, the AIC, has issued 19 decisions.

The three members of the Appeals Board, the second group, are: Richard Calland,  Associate Professor of Public Law, and the Director of Democratic Governance and Rights Unit, Faculty of Law, at the University of Cape Town; Kevin Dunion: The Director of the Centre for Freedom of Information, at the University of Dundee, School of Law; and Ramojus Kraujelis: The Chief Archivist of Lithuania.

Mumbai Transit Project Information “Deliberative” 

In one case (Case No. AI1473), decided Dec. 13, 2012, the Bank had rejected a request for the Implementation Status and Results Reports of the India: Mumbai Urban Transport Project, prepared between 2005 and 2010.

Implementation Status and Results Reports (ISRs) contain information and analysis relating to the progress of a particular project. The Bank denied the request for the 11 identified ISRs, relying on the “Deliberative Information” exemption contained within paragraph 16 of the Bank’s Policy on Access to Information.

The project was concluded, and could be released if the benefits of disclosure outweighed the potential harm, but the acting country director’s view was that given “the deliberative and sensitive nature of these documents prepared for the Bank’s internal use, we would recommend declassifying these ISRs only after the due date of 20 years.” The AIC agreed.

In handling the appeal, the Appeals Board looked at the documents, noting that they “concerned a project which had been subject to major project restructuring, an Inspection Panel review, the suspension of funds at one time, and repeated extensions.” The ISRs “comprise of information which may be regarded as factual or objective evaluations, and other information which may be regarded as more subjective such as expressing a candid opinion or offering a view on options.”

The Appeals Board decision agreed that the ISRs fell within the ambit of the deliberative process exemption.

The Appeals Board noted that the Bank had decided that for ISRs prepared after the revised AI policy came into effect in 2010, “such future documents will distinguish between deliberative and non-deliberative information, contained within them, in a way that the ISRs that are the subject of the current case did not.”

The Board concluded, “In that respect these eleven ISRs may contain information of a type which, in equivalent documents drawn up post – 2010 could be capable of being separated between deliberative and non-deliberative information. However, as constituted they are undifferentiated and under the AI Policy and its Interpretation by the AIC, remain to be regarded as Deliberative Information.”

The original decision by the internal committee, the AIC, said on this point:

With the effectiveness of the AI Policy in July 2010, the Bank redesigned the ISR format to have two parts, one of which was designed to enable public disclosure in order to maximize the disclosure of project information. The first part of the new ISR format provides all the objective information about the status of project implementation and the overall ratings on project development objectives and implementation progress. This first part is made public. The second part of the new ISR format covers the deliberative aspects – notably the comments of Bank staff and detailed risk ratings which continue to be restricted under the “Deliberative Information” exception of the AI Policy. Thus, even for ISRs prepared after July 2010, there continues to be a portion of the ISR that is undisputedly deliberative in nature and, as a result, remains restricted from disclosure. With respect to ISRs created before the Bank’s adoption of the new ISR format, internal Bank deliberations were integrated within the ISRs; for this reason, the older ISRs are restricted from disclosure by the “Deliberative Information” exception until they become eligible for declassification under the AI Policy.  

Borrower Informatiion Confidential

The other case concerned a request for information about the Turkey Emergency Flood and Earthquake Recovery Project (TEFER), specifically concerning what was spent in Bartin Municipality.

The Bank said it was unable to provide such specific information, but identified two reports provided by the Turkish government (the borrower) that contained some relevant material. However, the Bank denied access, saying it was not at liberty to release information provided in confidence by the borrower.

The AIC upheld the denial in July saying:

Despite our best efforts, we found no documents in the World Bank’s custody that directly or clearly provides the information that you had requested. We found two documents belonging to the Borrower that contain some information of limited relevance to your request. To our knowledge, the Borrower has not publicly released these documents. As a result, the World Bank is restricted from disclosing the two Borrower documents, pursuant to the Access to Information Policy’s “Deliberative Information” exception, unless the Borrower gives its written consent to disclose.

In December, the Appeals Board faulted the AIC’s consideration, sing:

The question of whether or not they “provide the answer” to the requester is not germane. Rather, the question is whether, being held, they should be disclosed under the AI Policy or whether one of its provisions exempts the records from disclosure. The AIC did not appear to ask itself this question.

A procedural dilemma then arose because the Board was uncertain whether it had authority to remand the appeal to AIC. The Board decided, however, that “it would not be unreasonable to infer an authority to remit a case back to the AIC, with reasoning from the AI Appeals Board.”

The AIC’s “supplementary decision” in January addressed the two reports more specifically, saying that one, a Progress Report, is restricted by both the “Information Provided by Member Countries or Third Parties in Confidence” and the “Deliberative Information” exceptions under the AI Policy; and the other, a Completion Report, is restricted by the “Deliberative Information” exception.

The AIC also considered whether to release of the documents in light of the “public interest.” The committee stated that the policy does not allow public interest appeals for information (the Progress Report) provided by member countries or third parties in confidence. With respect to the Completion Report, “restricted by the `Deliberative Information’ exception under the AI Policy, the AIC did not find compelling public interest reasons to override the `Deliberative Information’ exception of the AI Policy.”

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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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