World Bank Appeals Panel Backs Bank Secrecy Decision

16 December 2015

By Toby McIntosh

The three-member outside review panel has upheld the World Bank’s refusal to disclose documents about a controversial procurement in Serbia. (See decision.)

Gordana Andric of The Balkan Investigative Reporting Network requested documents about a review that Bank conducted into Serbia’s procurement process of a controversial Bank-funded project to pump water out of flooded coal mines. Questions were raised about the qualifications of the winning bidder, prompting a Bank examination. The Bank found the procurement process carried out by Electric Power Industry of Serbia (EPS) acceptable.

The decision not to release any documents was upheld by the Bank’s internal Access to Information Committee, citing a variety of  exemptions. (See previous FreedomInfo.org article.) Andric appealed this denial to the Access to Information Appeals Board of three experts, which supported the Bank denial.

Board Examined Records

The Board said it reviewed over 100 documents and attachments that the Bank had determined to be within the scope of the request. The Board conducted interviews with relevant Bank staff based in Serbia and Washington “so as to better understand the context in which they reviewed the procurement process carried out by the Serbian government and the deliberations that occurred as a result, as well as their not inconsiderable efforts to identify the relevant documents in response to the request,” according to the panel’s Dec. 3 decision.

“The AI Appeals Board is satisfied that the Bank has not violated the Access to Information policy (AI Policy) by improperly or unreasonably restricting access to information that it would normally disclose,” the decision states.

Three exceptions in the Bank’s policy protect the information, the Bank argued and the Board agreed. They are:

  • Information provided by Member Countries or Third Parties in confidence (largely, tender documents, bid evaluations and contracts);
  • Deliberative Information (largely, emails between Bank staff and/or external parties, which do contain free and candid exchanges) and
  • information that is protected by Attorney-Client Privilege (and we can confirm that it is legal opinion exchanged between outside legal advisors and the Bank’s in house counsel).

“We note the points made by the appellant in its submission to the AI Appeals Board concerning (a) the wide scope of the exception for Deliberative Information; (b) the possibility of redaction; and (c) the public interest in disclosure,” according to the Board.

No Redaction Required

The Board noted that the Bank’s access to information policy does not require redaction, the disclosure of those portions of documents not covered by exceptions.

“The AI Appeals Board cannot require information to be redacted and disclosed,” according to the decision. The Board did not comment on the optional redaction policy or explain why it lacks the ability to second-guess the non-application of the redaction policy.

The Board also said out that the Bank policy prevents it from second-guessing Bank decision on whether disclosure would be in the public interest, as was argued by the appellant.

“In this case we have established that the AIC has considered the public interest, and whilst the public interest considerations for and against overriding the Deliberative Information exception could have been set out more fully, nevertheless the AIC has concluded that they do not favour disclosure,” the Board wrote.

The Access to Information Appeals Board is composed of Richard Calland, a South African who specializes in the area of access to information; former Scottish information commissioner Kevin Dunion, and Cecelia Marie Espenoza, a veteran US access to information legal professional. See biographies here.

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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
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