By Toby McIntosh
The World Bank is denying access to documents about its reviews of contracts using Bank funds, and to the contracts themselves.
The Bank’s positions have emerged in a series of decisions rejecting requests made by Eyeonglobaltransparency.net and others through the Bank’s Access to Information Policy.
Regarding access to copies of the contracts themselves, the Bank has cited an “exceptional circumstances” exemption to turn down requests for contracts awarded using Bank funds in Burkina Faso, Cameroon, Guinea, Kenya, Lithuania, Mali and Sierra Leone, according to Bank records.
Nor has the Bank released information about its periodic reviews of specific contracts.
The internal Bank appeals panel on Nov. 5 declined to disclose documents about the Bank’s examination of a contract that was awarded by the Sierra Leone government using the Bank’s Covid-19 funding. (Appeal #88).
The Access to Information Committee (AIC), a committee of Bank staffers, said disclosure would undercut the deliberative process, expose confidential information, cause “reputational risk,” and “strain the relationship between the Bank and the borrower.”
The Bank continues to resist partial disclosure, the practice known as “redaction.” Releasing the portions of relevant documents that are not covered by exemptions is commonly done under national freedom of information laws. The Bank, however, considers the option to be “voluntary” and has very rarely used it.
The stories of denied requests for both contracts and review documents are entwined in the following narrative (plus side notes about the slow process).
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Access to Review Documents Sought
About a year ago, on Nov. 3, 2020, EYE sought documents concerned the Bank’s “prior review” of a $324,000 two-year contract for “internal audit services.” The contract was awarded to the accounting firm BDO Sierra Leone on June 23, 2020.
There were a number of red flags about the contract. The final contract amount was four times larger than the projected $80,000. Also, as a “direct” contract, there was no competitive bidding.
The Bank routinely conducts reviews of government contracts using Bank funds if they are of “high value and/or high risk,” according to the Bank procurement rules. The Bank reveals the existence of its reviews, but nothing about them.
Eyeonglobaltransparency.net wondered what questions had been raised and what conclusions had been reached.
EYE requested “all Bank documents concerning the contract … for audit services in Sierra Leone as part of the Covid-19 project, including Bank review documents about this contract….”
After four months, the request was denied. (See EYE article.) EYE appealed to the AIC.
Mistakes, Delays
The year-long long process of handling EYE’s request and appeal was exacerbated by several World Bank errors.
The most significant mistake was that Bank officials misunderstood EYE’s request, according to the AIC decision. Officials misread EYE’s request as being for only the BDO contract, apparently overlooking the phrase “including Bank review documents about this contract.” The AIC decision terms the mistake an “error” and calls it “harmless.”
While pondering the wrong premise, the Bank took almost 16 weeks, about four times longer than the stated goal, to respond to the request. The Bank aims to respond “within 20 working days” (four weeks), a target which it hits 86 percent of the time, according to its latest annual report on the AIP.
Bank Uses Prerogative Exemption
In denying access to what it thought was a request for just the contract, the Bank cited “exceptional circumstances.” It has used the same “prerogative” exemption to reject other requests for contracts (Section IV 2 in the Bank’s Access to Information Policy).
The “Prerogative to Restrict Access” provision states: “The Bank also reserves the right not to disclose, under exceptional circumstances, information that it would normally disclose if it determines that such disclosure is likely to cause harm that outweighs the benefits of disclosure.”
To back up its use of this exemption, the Bank contends that the release of “details” from completed contracts would interfere with its ability to ensure that the loan is used only for the intended purpose. Language used in multiple decisions states:
Requested Information refers to contractual information that contains details whose disclosure could negatively impact competition under projects financed by the Bank, increase costs, and prevent the Bank from ensuring the economy and efficiency necessary in the use of its funds. Thus, the Bank has an interest in restricting public access to contractual information resulting from procurement processes carried out in Bank-financed projects.
The use of the prerogative exemption to maintain confidentiality of contracts began in 2020. There are now a string of similar AIC decisions: Lithuania (Appeal #76); Cameroon (Appeal #79); Burkina Faso, Cameroon, Guinea, and Mali (Appeal #80); Mozambique (Appeal #82); and Sierra Leone (Appeal #83). EYE, in a separate request in 2020, sought only a copy of the contract, and the AIC took the same position. (See EYE article.)
Other requests for contracts likely were rejected at the initial stage and not appealed. (Requesters names are not disclosed.)
EYE objected to the use of the “prerogative” exemption, arguing on appeal that the Bank did not describe or justify the “exceptional circumstances” or say what “harm” was involved. Nor did the Bank explain its cost-benefit analysis, EYE said. In the absence of such supporting information the discretionary exemption could be abused, EYE contended.
EYE Appeal Rejected in Error; Briefly
EYE on March 29 appealed the denial of its request for the Bank review documents and faced an administrative snafu.
Several weeks later, on April 12, the Bank wrote EYE to say the appeal was untimely. Following EYE’s objection, the Bank reinstated the appeal on April 13, saying the rejection was result of a “flawed feature” in its management system.
“We appreciate you bringing this to our attention as we were able to identify a flawed feature in the Case Management System (CSM) regarding the dates on record,” the Bank wrote. The AIC decision does not mention the two-week delay.
Error Discovered, Committee Starts Review
So the Access to Information Committee deliberations got underway in April.
It’s not mentioned in the decision when the Bank realized that its initial answer was to the wrong question.
But once discovered, more relevant documents came into play. In May, the decision reports, “the business unit” that handled the contract review “provided its views” and also came up with “six additional pieces of information located as a result of the appeal that had not been considered during the request phase.”
From May to September, the AIC decision says, the appeal was addressed at six meetings. During this period, the Bank sent EYE periodic short e-mails (six of them) about the delay. The last one said: “The AIC understands this delay may be longer than the public may expect. However, proper consultations are needed which are adding considerable time in this case.”
In the end, the Bank’s handling of the appeal took more than four times as long as prescribed. Under the Bank’s policy, “The AI Committee makes its best efforts to reach a decision on appeals within 45 working days of receiving an appeal….”
Instead of nine weeks, however, the AIC’s deliberations took 31 weeks.
Four Types of Information Involved
Denying the appeal, the Nov. 5 AIC decision says the information requested on its review of the audit contract “ is properly and reasonably restricted” by two exemptions.
One is designed to protect “deliberative information” and the other to protect “Information Provided by Member Countries or Third Parties in Confidence exceptions under the AI Policy.”
The restrictions cover four types of material, according to the AIC decision, although it does not specifically describe the six documents reviewed.
First, the decision denies access to information that it says “was prepared by the bidder in response to an invitation for bids by the borrower.” This material, it states, “… contains confidential commercial and financial information (such as cost breakdown of financial proposal) that may impact future participation of the bidder in future competitive procurement.”
The decision elaborates, “Such information remains confidential during the bidding and evaluation of bids/proposals and becomes part of the contract after negotiations between the borrower and the bidder.” Pursuant to the Bank’s Procurement Regulations, the AIC wrote, “The Borrower [Sierra Leone] shall not divulge any other Consultant’s confidential or proprietary information such as: cost breakdown, trade secrets, methodology or other confidential business or financial information.”
Second, the AIC decision says, some information “was produced by the Bank as part of project implementation support and is solely for use by the Bank for its project supervision obligations and the Borrower to improve procurement performance.” It adds, “Disclosing such information during a project under implementation may cause reputational risk to the Bank and strain the relationship between the Bank and the borrower.”
A third category of material to be kept secret “consists of background information for developing and/or updating the procurement plan,” according to the decision, which continues, “As such, the information is subject to constant change based on input from the project’s implementation and is, for this reason, deliberative in nature.”
Fourth, the decision states, some material “reflects the deliberations between the borrower’s project management and the Bank.”
Two Exemptions Cited
The AIC found that the requested information “contains information that (a) serves both the Bank’s own decision-making process and deliberative process with the borrower on operational procurement matters, and (b) contains information provided to the Bank in confidence for such deliberations.”
Further, “The AIC found that such information is crucial for the Bank’s relationship and open communication with the borrower, and the carrying out of the Bank’s business and fiduciary obligations under the Bank’s Articles of Agreement as set forth in the Procurement Regulations.”
In addition, the AIC found that, “given the sensitivity of the deliberative information involved, the Bank did not seek the member country/borrower’s views on the possible disclosure of such information.” It continues, “The Bank did not do so because even if the member country/borrower was to agree to disclose this information, the Bank would not agree to disclose it, rendering the override of the Information Provided by Member Countries or Third Parties in Confidence ineffective as the Deliberative Information exception still restricts the information in question.”
One Document Disclosed
EYE was granted access to one document related to the audit contract, despite the fact that the Bank has refused to disclose the contract itself.
Newly revealed are the “Terms of Reference” (TOR) for the contract. The Bank sought and obtained permission from the Sierra Leone government to disclose the document, according to the AIC decision.
The undated 5-page TOR document details the expected scope of work and what reports the accounting firm must deliver.
EYE was unable to locate the text of the BDO audit contract on Sierra Leone’s National Public Procurement Agency website, but that doesn’t necessarily mean it wasn’t disclosed. The NPPA website shows a “restricted bidding” contract (NaCOVERC/LOG/RB/001/06/2020) for “Consultancy services for the provision of Fiduciary and Internal Controls and Systems Review” going to BDO on June 19, 2020. The amount shown is 2,107,913,343 Leone ($193,000). Though less than amount described by the Bank, the NPP website states: “Note that framework contracts are based on bills submitted. Amount indicated related to expenditure incurred as of 31st December 2020.”
The Bank strongly encourages and support transparency government procurement practices.
“Under COVID-19 financing, the Bank is supporting governments’ efforts to be transparent about procurement and results,” says a Bank Nov. 11, 2020, brief, Corruption and Covid-19 Response . Among other things, the brief says, “World Bank teams have engaged civil society organizations to help monitor COVID-19 response projects through Governance and Accountability Action Plans that build on existing fiduciary arrangements, while also adding measures to strengthen accountability, transparency, and citizen participation.
Rule Place Limits on Appeal
One more layer of appeal is possible, to the Access to Information Appeals Board, a panel of three outside experts.
The Bank’s access to information policy restricts the grounds for further appeal, as the AIC said at the end of its decision.
The Bank does not allow requesters to argue that information should disclosed in the “public interest” if certain exemptions have been used. No public interest arguments are allowed when the materials provided in confidence exemption is asserted. The Bank’s exercise of its prerogative exemption is also not eligible for a public interest appeal.
However, an appeal on public interest grounds is possible when the deliberative process exemption in invoked.
The Bank’s use of the deliberative process exemption to restrict release of documents arose in another case brought by EYE related to Tanzania.
The three-person external appeals board, the Access to Information Appeals Board (AIAB), found that the Bank overused this rationale and ordered the release of more than 100 documents out of about 500.
The Board wrote that information is not exempt if it is “factual and/or purely transactional” and “does not reveal the substance of the deliberation.” See EYE articles of June 2, 2021, and of June 14, 2021.
No Redaction Used
The Bank chose not to use redaction in responding to the request for documents on the review of the Sierra Leone auditing contract (or in the Tanzanian matter).
The Bank has interpreted the Bank’s Access to Information Policy (AIP) so as to make redaction voluntary. Although the Bank’s AIP is based on a “presumption” of disclosure, the Bank’s Access to Information Committee decided in 2014 that redaction is a “discretionary decision.”
The discouraging language in the Access to Information Directive/Procedure states:
The Policy imposes no obligation or duty on the Bank to either consider redaction or modification of a document that includes information restricted by one or more AI Policy exception. The Policy also imposes no obligation or duty on the Bank to redact or in any way modify a document that includes such restricted information.
In practice, redaction is rarely if ever used.
The evidence for this comes from reviewing responses and from communications with Bank officials.
In the case concerning the Bank/Tanzania documents, the Bank exempted documents in full. The external review board noted 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….”
The Board did not second-guess the policy or its application. In its Tanzania decision, the Board reiterated its analysis that the Board “cannot require information to be redacted and disclosed.”
EYE has asked the Bank for examples of when redaction has been used. In response, a Bank official searched back many years, but could only find a few examples.
One document, from 1999, concerned Columbia, and several names were redacted to protect privacy. A set of 11 documents, from 1982, concerned a meeting in China, with redactions for the amount of travel reimbursements, bank information, and passport numbers. In addition, the Bank cited 33 Board transcripts, dating back into the 1960s, that were disclosed with redactions.
Other Review Documents Often Restricted
A variety of monitoring and evaluation reports are prepared by the Bank, and recipient governments, but access to them varies. This is a wide universe, beyond the scope of this article, but a few past decisions are indicative.
The Bank rejected a 2020 request for “[A]ll of the audits and evaluations conducted by the World Bank on the Ebola response to the outbreak which took place in the Democratic Republic of Congo from August 2018 to June 2020.” The requester was told that they are protected Deliberative Information exception under the AI Policy (Appeal #80).
The Bank has denied EYE’s 2020 request for access to its database about government contracts using Bank funds, the STEP system (Systematic Tracking of Exchanges in Procurement).
The Bank in 2015 rejected a request by a Serbian journalist for reports on the procurement process concerning a controversial Bank-funded project in Serbia to pump water out of the flooded coal mine (Appeal #39). (See FreedomInfo.org report.)
Monitoring the rapid spending to combat the pandemic is a high priority, Bank officials have said.
Some governments have been tasked by the Bank to hire “third parties” parties to conduct an “external audit” of projects related to Covid-19.
For example, in Gambia, which will receive about $10 million from the Bank, $11,000 was allotted for the “external audit,” according to the July 15 procurement plan.
Will the audit be made public? Maybe not. A Bank spokesperson in 2020 wrote, “Not necessarily, there is no such standard requirement.”
Requests for information under the Bank’s Access to Information Policy can be submitted here.
