By Toby McIntosh
The World Bank improperly refused to release more than 100 documents, according to a ruling by the Access to Information Appeals Board that potentially sets a higher bar for Bank transparency.
In a case brought by Eye on Global Transparency, the three-person board of independent experts ruled that the Bank wrongly withheld the documents by using exemption designed to protect the deliberative process at the Bank. In fact, the documents were not “deliberative,” but rather “decisional” documents, the Board said. Because the documents described the outcomes, they were disclosable. (See the Board May 4 decision here.)
EYE’s request was for Bank documents from 2018 and 2019 about controversial amendments to the Tanzanian statistics law that imposed criminal penalties for criticizing official statistics. The Bank objected to the law and led efforts to get the law modified in 2019.
Although the Bank originally found only 20 relevant documents, a more thorough internal review turned up 535 relevant documents. The Bank denied access to virtually all of them, mainly arguing that they were deliberative. The appeals board found that the Bank overused this rationale and ordered the release of 102 documents.
EYE will write separately about what the documents reveal. (See list of disclosed documents, with links.)
In other notable developments, the Board:
- Said for the first time that the Bank’s Access to Information Policy bars the release of anything written by the Bank’s legal staff.
- Continuing to find itself bound by Bank decisions not to redact documents to facilitate partial disclosure.
- Concurred with the Bank’s policy “all of nothing” approach to releasing documents.
- Gave implied rebuke to the Bank for denying access based on looking at a small sampling of the documents. The Board reviewed them all.
Distinguishing Deliberative from Decisional
The Board elaborates on the distinction between “deliberative” and “decisional” documents.
Documents that reveal “substantive grappling” over what positions to take are properly deliberative and can be kept confidential, the Board wrote. “For example, some of the correspondence reveals the content of discussion about the exchanges when engaging with the government of Tanzania, in the context of all the understandable sensitivities involved in such an engagement,” according to the 16-page opinion interpreting the Bank’s Access to Information (AI) Policy.
In contrast, the Board continued, information is not exempt if it is “factual and/or purely transactional” and “does not reveal the substance of the deliberation.”
Also not exempt is “[i]nformation that is actually a reflection of the decision or outcome of the deliberation, the Board wrote. “For example, the final ‘talking points’ of the public presentation at the Parliamentary public hearings.”
Referring back to one of its own rulings, the Board wrote, “As in that case, we find here that the deliberative exception cannot simply be used to withhold any information that has been the subject of external discussions between the Bank and outside entities. Such an exception would swallow the AI Policy whole.”
Elaborating, the Board added:
Applying the approach taken by the AIAB in the Nepal Case, however, and the ordinary words of the actual text of the AI Policy exception, the information must facilitate: debate, away from public scrutiny; room to develop consensus; and the safeguarding of the free and candid exchange of ideas. This is a minimum threshold. If the information does not do this, then it cannot be regarded as deliberative.
The Board also said the Bank should have disclosed documents were simply “transactional,” such as e-mail invitations to meetings.
Redaction Not Used
The Board’s decision puts on display the Bank’s resistance to redaction.
Redaction is the process of disclosing some information, but not all of it. Redaction is standard practice among national governments, often resulting in the release of documents containing black bars covering the restricted (redacted) material.
Although the Bank’s AI Policy is based on a “presumption” of disclosure, the Bank’s Access to Information Committee decided in 2014 that redaction is a “discretionary decision.”
In its latest decision, the Board reiterated its analysis that the Board “cannot require information to be redacted and disclosed.”
All or Nothing
In addition, the Board agreed that under Bank policy, if any part of a document is judged to be confidential, the whole document can be held back.
The Bank’s policy is “class based,” the Board wrote, “… thus as long as any information in a document is subject to an exception such as Deliberative Information, the full document is properly restricted since as noted below the AIC has determined that there is no obligation or duty to redact.”
This “all or nothing” approach was on display regarding the documents related to Tanzania.
While the Board said it was bound by the Bank’s discretionary policy, the decision highlighted one impact of the policy. The Board pointed out, without comment, that even if only one email in a string of six is judged nondisclosable by the Bank, none of the emails in the thread are released. Many of the documents are e-mails.
The Board commented, “… in a long email thread it would only require one email to be, say, ‘deliberative’ and therefore potentially covered by an exception to the AI Policy, for the rest of the email thread to be exempt as a whole – even if the other emails were purely transactional or fact-based exchanges where no harm to the candid exchange of views or the integrity of the decision-making process could possibly arise.”
The Board nevertheless agreed that “the correct interpretation of the AI Policy is to treat the emails and the attachment as one piece of information.”
The Board expressed no opinion on the redaction policy.
Board Backs Board Attorney-Client Privilege Exemption
The Board for the first time ruled on the Bank’s attorney-client privilege, judging the wording of the exemption to be broad and encompassing.
The Board agreed with the Bank that the provision covers all material created by the Bank’s in-house attorneys, even if the subject was not about a Bank legal matter. The released documents indicate that the Bank’s legal office analyzed the changes to the Tanzanian statistics law. The analysis was not disclosed.
The attorney-client privilege exemption states:
Section III.B.2(d) of the AI Policy states that “the Bank does not provide access to information subject to attorney-client privilege, including, among other things, communications provided and/or received by the General Counsel, in-house Bank counsel, and other legal advisors.”
In its Sept 17, 2019, appeal EYE argued:
It is widely accepted that attorney-client exceptions do not cover policy advice prepared by lawyers, even by in-house lawyers except insofar as they express or reflect a proper client “secret.” It does not apply to policy analysis. In analyzing policy, for example, a draft national statistics law, a World Bank lawyer does exactly what a World Bank economist does.
The AIAB said the exemption’s wording is broad, writing:
The AIAB view is that on an ordinary reading of the exception it protects legal advice or opinions by Counsel, and applies to information which is confidential between an attorney and client. It is also our view that under the AI Policy, in its ordinary meaning, the exception includes strategic advice from General Counsel or other in-house counsel on programmatic matters that have legal implications that are confidential or requests for legal advice to the General Counsel or other in-house counsel. The use of the word “including” in the exception is ordinarily used as a word of extension or enlargement, so as to make these communications by in-house counsel protected by the attorney-client privilege.
Board Disagrees with Bank’s Expectation of Confidential Position
Looking at the Bank’s assertion that some documents were exempt because they had been provided by Tanzania with an expectation of confidentiality, the Board said four documents did not meet that test because “the information (via) email was a public document or was widely distributed to numerous other organizations or individuals.”
External Board Review More Rigorous Than Internal Review
The Board engaged in laborious examination of all the documents involved, done virtually because of the Covid-19 pandemic. The Board undertook to “painstakingly review every single one of the more than 500 pieces of information that are the subject of this appeal, commenting, “This has been a laborious and time-consuming exercise.”
The Board’s approach was far more rigorous than that done by the internal appeals body, the Access to Information Committee, which denied access to almost all the documents based a sampling of 30 documents.
The Board decision is unsigned. The Bank website shows three current members of the Board: Richard Calland, Miriam Nisbet, and Carole Excell. Rosemary Agnew is an alternate who will be a Board member next year.
22 Month Process
The full process, including the two reviews, took about 22 months.
On July 8, 2019, EYE asked for Bank documents about the Tanzanian Statistics Act from between April 1, 2018, and July 8, 2019, seeking to learn more about the substance of the Bank’s thinking and its actions. EYE has written extensively about the statistics act amendments and the Bank’s response.
The Bank denied EYE’s request entirely on Aug. 28, 2019.
EYE appealed on Sept. 17, 2019, to the internal Access to Information Committee (AIC).
As the AIC review went well beyond the usual timeframe for a response, EYE on Feb. 20, 2020, asked to Board to opine on the timeliness of the Committee’s response. The Board decided that “it could not admit that appeal on procedural grounds: the responsive documents were being processed for review by the AIC.”
The Board on March 18 said it “might properly intervene” in case of “unreasonable delay” by the Bank in handling requests for information, but that in this case it accepted “good faith assurances” that the business unit and the AIC Secretariat were actively working on the request. (See EYE article.)
Ten months after the appeal was filed, on July 29, 2020, the AIC issued its decision, denying access to all but a few already public documents.
Among the points of interest in the AIC decision was that the “responsible business unit” had located “approximately 20 documents as responsive to the Request,” but that a more thorough review had turned up 535 relevant documents. Access to most of them (467) could not be disclosed under the deliberative process exemption, the committee determined after looking at a sample of 30.
By contrast, the Board dove virtually into the document pile, eschewing sampling and looking at them all. Noting the time involved, the Board explained:
We recognize that the time period between the transmittal of this appeal to the AIAB and this decision is far longer than any other previous AIAB case. However, the process of carefully considering each document and doing so remotely, via the Bank’s internal digital archive (WBDocs), has unfortunately proved to be an unwieldly process logistically. In addition, the appeal has given rise to some very challenging questions of interpretation, application, and adjudication, as can be gathered from what follows below.
