By Toby McIntosh
The three-person external appeals board that decides appeals concerning the World Bank’s access to information policy has issued several pro-transparency decisions this year.
In particular, the Access to Information Appeals Board (AIAB) has:
- Rejected the Bank’s argument that commonly used staff reports, Aide Mémoires, are categorically exempt from disclosure;
- Cast doubt on Bank claims that “sensitive” information in a document justifies nondisclosure;
- Looked critically at the use of the “deliberative process” exemption; and
- Continued to press for disclosure of “factual” information.
The Board’s decisions, however, continue to reveal several key deficiencies in the Bank’s access regime that are beyond the Board’s remit, including:
- The Bank’s unwillingness to provide make partial disclosures, a policy that the Board says it must abide by; and
- The Bank’s use of the “exceptional circumstances” exemption, that can’t be overturned by the Board.
Along the way, the Board has pointed to various faults in how requests have been handled. In two of three cases described below, the Bank located more responsive documents after the appeals were filed.
In one decision, the Board repeats a note about not discouraging appeals, stating, “A lay-person should be able to say “I don’t like this decision and I want to use my right to appeal.”
One of the three appeals described below was filed by eyeonglobaltransparency.net, concerning access to certain contract materials. One other case also dealt with contracts. The third concerned access to about Bank staff reports. (The names of the appellants are not revealed by the Bank, even though EYE explicitly asked the Board to be named as the appellant.)
Appeals go first to the internal Access to Information Committee and then to the Board, composed of three outside experts (Miriam Nesbit, Carole Excell and Rosemary Agnew, who replaced Richard Calland in February). The AIAB’s decisions (17 since 2013) are found here on the Bank website.
Access Given to Aide Mémoires
In one decision (No. 16), the AIAB overturned the Bank’s denial of a request for access to Bank audits and evaluations conducted on the response to the Ebola outbreak in the Democratic Republic of Congo from August 2018 to June 2020.
In so doing, the Board rejected the Bank’s claim that release of a much-used document about Bank in-country operations, the Aide Mémoire, is contingent on approval for disclosure by both the Bank and the borrowing country. No such policy exists in the access to information policy, the Board said. “For the document not to be disclosed it has to fall within an exception for the non-disclosure not to constitute a violation of the AI Policy,” according to the Board.
The Board then looked into whether disclosure of the documents would interfere with the deliberative process, protection of which is allowed under the AI Policy.
Unusually, the decision reveals, the Board members met with Bank staff to learn more about the documents involved, Aide Mémoires and Back to Office Reports (BTORs).
The Board expressed some sympathy with the Bank view that nondisclosure of Aide Mémoires helps build trust between the Bank and its member countries/borrowers, and facilitates the free and candid exchange of ideas.
No Explicit Exemption Exists, Board Says
However, in rejecting the Bank’s claim for nondisclosure, the Board said:
Just because the Bank says that Aide Memoires are deliberative and treats them as such (as per the guidance to staff and countries), does not mean that they are deliberative – unless the AI Policy states that this is so. It does not.
The Board then read 14 documents to see if they included deliberative information or not. It found that four did contain deliberative information “and were therefore properly withheld.”
“They contain recommendations that required further consideration and so were ‘pre-decisional’; and/or they contained opinions or reported on consultees’ positions in such a way that disclosure might undermine the decisionmaking integrity of the Bank, including the candour and freedom of any exchange of ideas during the period of time of the deliberation.”
As the AIAB has noted in previous decisions, the AIAB has no jurisdiction to require information to be redacted and disclosed under the AI Policy.
The other ten (10) documents, however, “do not contain deliberative information: they contain analysis, make findings or record points of agreement reached with various stakeholders or partners of the Bank, but are all in essence either ‘factual’ and/or ‘decisional’ rather than ‘deliberative’,” according to the Board decision. It cited back to its decision in a previous case (“Tanzanian Statistics Act”), brought by EYE.
No Sensitive Exemption
In an additional comment, the Board stressed that “just because information may be “sensitive” does not mean that it necessarily falls within the ‘deliberative’ exception; there is no exception for information on the basis that it is “sensitive”.
The Board ordered the release of the 10 documents.
The same decision repeats previously used language about the right to appeal that might help future requesters who don’t make sophisticated claims. The Board wrote:
“However, the principle of procedural fairness requires that a broad and purposive approach be taken to the right to appeal. It was not, surely, the intention of the drafters of the AI Policy to make it unduly burdensome for requesters to use the appeal process. It should not require legal representation or legal arguments. A lay-person should be able to say “I don’t like this decision and I want to use my right to appeal”, which is what we find was the requester’s intention in this case. It is for us to then determine whether there is a prima facie case.”
EYE Appeal Largely Rejected
In a case brought by EYE, the appeals board decision largely upheld the Bank’s original decision not to release the requested documents: a copy of an auditing contract (let by Sierra Leone using Bank funding). The contract was for audit of Covid funds spent in Sierra Leone. EYE also asked for documents about the Bank review of the contract.
The Sierra Leone decision underscores again several fundamental weaknesses in the Bank’s Access to Information Policy.
First, the Appeals Board reiterated that it has no authority to order the partial release of documents. Under a Bank interpretation of the access policy, the partial release of documents (redaction) isn’t required. In practice, redaction is virtually never used. (See previous EYE report.)
So if a document contains any material exempt from disclosure, the entire document is withheld. The Board says it can’t overrule this “all or nothing” interpretation.
Second, the Board’s decision reveals once again the power of the “under exceptional circumstances” clause contained in the Bank’s access policy. In this case the exemption was invoked to deny access to a copy of the auditing contract. The Board said it has no authority to override this exemption, which has been used Increasingly in recent years.
Board Critical of Bank’s Procedures
However, on a happier note, there were some small victories for transparency.
The Board faulted in the Bank’s handling of requests, such as the post-appeal discovery of more documents.
Once EYE’s appeal was filed, the Bank found additional documents not found earlier. The same thing happened with the Ebola request. The Board recounted how the Bank originally located 18 relevant documents, but after the appeal was filed it found18 additional documents.
The Board sympathized with EYE’s complaint about what little the Bank said about the documents involved.
In fact, the Board took it upon itself to describe the documents withheld. It wrote (para. 19):
The requester’s frustration with the lack of description of the withheld documents, and the reasons for the withholding of each of them, is understandable. Accordingly, the AIAB includes in its decision below an Appendix listing and briefly describing the documents at issue, the AI Policy exceptions that were confirmed by the AIC as the basis for withholding them, and the AIAB’s decision to affirm their withholding with the exception of one document that must be released.
It isn’t exactly a rebuke of the Bank’s Access to Information Committee (the first stage for appeal), but perhaps the Board’s comment will prod greater precision by the committee in the future.
Although the Board concurred with the Bank’s claim that documents about the “prior review” process for contracts review are exempt from disclosure, the decision provides some tiny bits of insight into the process, suggesting the degree of Bank engagement.
One denied document, the Board said, is of “two pages of emails exchanged regarding negotiations with the bidder.” The Board comments that “it is not clear how its release would reveal information provided in confidence by a third party.” But it denies access on other grounds, stating: “However, the document consists of analysis and opinions that if released would harm the Bank’s deliberative process.”
The Board’s decision indicates that one review document (Document 4) “is a lengthy (71 page) document concerning nine contracts, only one of which is the subject of the instant access request.”
The only document released (Document 6) as a result of the Board decision is an undated short table form. It seems to indicate the cost for the internal and external audits in 2020 will be $20,000 each.
The AIC in its original decision of Nov. 3, 2021, released one document, the Terms of Reference for the contract.
The $324,000 Sierra Leone contract was for “internal audit services” concerning millions of dollars in Covid-related contracts. The two-year contract was awarded without competitive bidding to the accounting firm BDO Sierra Leone on June 23, 2020.
In another mini-rebuke, maybe a fine point only a requester can appreciate, the Board said the AIC had relied too much on the Bank’s Procurement Regulations in denying the request, commenting:
“The AIAB recognizes that procurement regulations provide the policy context in which exceptions are considered but have a concern that they have been applied in this case in such a way as to suggest they are a further ground for withholding the document.
Disclosures Ordered in Mozambique Matter
In another decision (No. 15), the Board partially rejected the Bank’s denial of access to information about the award a contract in Mozambique for brochures related to the Mozambique: Cyclone Idai & Kenneth Emergency Recovery and Resilience Project.
Among the documents the Bank sought to keep confidential were an evaluation of bids and the Notification of contract award. The Board disagreed.
The AIC had applied both the deliberative process exception and the exemption for material supplied by a third party in confidence exception.
Shooting down the first argument, said the information was about a decision, not a deliberation. the Board wrote:
In applying the AI policy to both documents, we have determined that they do not meet the criteria to be deliberative information. Firstly, the documents do not contain any information which constitutes a deliberation by the Bank with a member country or other entity with which the Bank cooperates or any of its own internal deliberations about the review of the contract. Secondly, the information in the evaluation and the notification of contract were both clearly decisional – that is to say, the information contained in both documents reflected the final decision as to who would be awarded the contract. In the case of the evaluation, it was the decision that was recorded by the bid evaluation committee in Mozambique. Indeed, the evaluation of bids is clearly decisional as it states the bid price that was chosen and the reasoning for choice of this bid. In the case of the contract notification, it was Notification of Contract Award to all the bidders of the winner of the contract.
Regarding the “Information provided in Confidence” exemption, the AIAB concluded that “the information contained in the evaluation of the bids and the notification of contract does not retain a character of confidentiality that would be required to maintain the exception.”
Besides, it continued, the member country disclosed of the contract award, which included information on bid prices, the names of the bidders, the name and amount of the awarded bidder, and the date and duration of the contract.
“The information made available in the public notice is the same as that in the report of the evaluation of the bids and the notification of contract award,” the Board wrote, concluding, “In this case, therefore, we find that any confidentiality in that particular information has been waived by the member country or is rendered moot by the public disclosure.”
