Secrecy Option Proposed for Bank Forest Carbon Fund

20 November 2014

The World Bank’s Forest Carbon Partnership Fund is aiming to allow confidential treatment for the terms under which countries would receive payments for conserving forests.

The policy is still under development, but three nongovernmental organizations recently objected to giving countries the option of secrecy in the still developing system in which the Fund will pay countries for qualifying, forest-related, climate-friendly policies.

The confidentiality provision comes despite a previously adopted Fund disclosure policy, based on the World Bank’s access policy, that presumes disclosure for most documents. In fact, activists said they are pleased with this presumption of disclosure (Section 18.07(a) of the General Conditions) and requirements for the disclosure of draft documents. Such draft documents would, for example, give information to the residents of forested areas about possible resettlement or about payments for forest conservation.

By contrast, for one key ultimate document in the system, confidentiality would be the norm.

The document will define the agreement, such as the rate of payment and who does the monitoring, between the Fund to the recipient government. It is known as the Commercial Terms and Term Sheet for the Emission Reduction Payment Agreements (ERPA).

The World Bank supports disclosing the ERPA document, according to a Bank official and NGO observers, but the Bank is acquiescing so far to demands for its confidentiality, according to the latest draft, unless:

(i) at the time of disclosure, the Confidential Information is public or which after disclosure becomes public other than by disclosure by either Party in violation of this provision;

(ii) the disclosing Party has been given prior written consent by the other Party to make that disclosure; or

(iii) the Confidential Information is required to be disclosed under any applicable laws and regulations or by any subpoena or similar legal process.

The provision was discussed at a Participants Committee meeting in Tanzania Oct. 30-Nov. 4), but the final decision rests with the donor-dominated Carbon Fund, expected to meet early next year. The World Bank is the Trustee of the Forest Carbon Partnership Facility (FCPF) and World Bank staffers staff (known as FMT, the Facility Management Team) help develop its policies, including its disclosure policies.

The FMT takes the position that since all of the commercial terms agreements are negotiable no one should worry about the bad language in the commercial terms, an NGO observer said.

Groups Offer Alternative

Three groups in an Oct. 29 letter proposed an alternative policy. They suggested that any confidentiality claims be tested against the World Bank’s existing standard for determining what should be exempt from disclosure as confidential information. They proposed:

Consistent with Section 18.07 (a) and (b) of the General Conditions, all information disclosed by the parties in the commercial negotiation leading to the ERPA, and the ERPA itself, will be made public, unless at the time of disclosure the ER Program Proponent has presented a well-reasoned rationale for non-disclosure and this reason has been accepted by the Trustee as consistent with World Bank’s Access to Information Policy (“Confidential Information”). Any Confidential Information accepted by the Trustee shall be kept confidential and not be disclosed unless: [Same as existing Section 10.02 of the Commercial Terms]

The letter was signed by the Bank Information Center, the Environmental Investigation Agency and the Rainforest Foundation Norway.

Some potential early recipients of the Fund, such as Costa Rica, are obliged by national law to disclose contracts, but others might chose nondisclosure.

Critics of the potential confidentiality are concerned that nondisclosure would undermine the bargaining power of other recipient countries and deprive affected parties with key information.

Non-Redaction Another Concern

NGOs following the issue also are fearful that confidentiality will be applied to full documents.

The Bank staff has advised the Fund that the Bank’s access policy discourages the disclosure of partial documents, instead of redacting the elements considered confidential.

A Bank lawyer, Markus Pohlman, who was involved in the discussions, confirmed to FreedomInfo.org, that not redacting is the Bank’s preference. Redaction, he said, is permitted, but “is not a preferred option.” Documents should confidential or not, he said, and Bank prefers not to deal with various versions of the same document.

Without redaction, if there is one confidential statement in the ERPA, the entire ERPA will be deemed confidential. Despite demands from civil society organizations and indigenous peoples’ representatives, no language was added to ensure that information material to the creation of benefit-sharing plans and safeguard plans will be disclosed.

The World Bank issued a July 12, 2010, interpretation of the Bank’s access policy that says the Bank may redact “if it chooses to do so.”

In a June 2014 decision, the Bank’s independent Appeals Board, considering a request from FreedomInfo.org in an instance where the Bank had chosen complete denial instead of redaction, said “the Bank has a duty to consider redaction in appropriate cases.” (See previous Freedominfo.org report.)

In an effort to calm NGO concerns, the Fund’s staff (the FMT) assured the parties that they would be transparent and that even if governments made confidentiality claims, all essential information necessary for benefit-sharing plans or safeguards plans will be disclosed some how such as a fact sheet, reported one NGO observer of the negotiations. “However, the FMT and the Parties were unwilling to make any changes to ensure that this actually happens,” the observer said.

Be Sociable, Share!

Tags: ,

Filed under: IFTI Watch

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
1-(703) 276-7748