By Toby McIntosh
The European Investment Bank Complaints Mechanism is working on two appeals by Eye on Global Transparency (EYE) concerning denials of access to information, although the process is taking time.
Both matters concern a database called GEMs, managed by the EIB on behalf. GEMs contains extensive data on the risks of investment in developing world countries. The detailed information comes from 25 multilateral development banks and development finance institutions.
More public access to the GEMS database is advocated by both the private sector and public interest groups in hopes to spurring more investment in developing countries. Deliberations on more GEMs transparency are still ongoing. EYE has tried to follow the process since early 2023.
Several years before the deliberations began, some of the GEMs database was licensed to a private company. EYE requested the contract for the 2019 deal. However, the EIB withheld the specific terms of the now-expired arrangement.
Decisions about the GEMs are in the hands of the 25 member GEMs Consortium. EYE’s second request was for the minutes of a 2023 closed meeting of the GEMs General Assembly. The EIB totally denied access to the minutes.
EYE appealed in both cases and the wait began.
The appeal for the contract has been pending for almost a year, but there has been a recent suggestion of that the process is moving along.
The second appeal is newer, only two-and-one-half months old, but on July 15, the EIB Complaints Mechanism gave itself more time, until Dec. 4. The four-and-one-half month extension, the EIB said, is “due to the complexity of the inquiry.”
Below is more detail on the process and the appeals.
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EIB Appeals Process
Appeals go to the EIB Complaints Mechanism (EIB CM), a body that handles all manner of complaints, not just those about transparency. Some international institutions have bodies dedicated to access to information appeals.
In 2023, the EIB CM received 60 complaints, according to its 2023 annual report. Many are complex cases about the environmental and social impact of EIB-financed projects. Only three percent concerned access to information, the report says.
“Whilst the EIB-CM will endeavour to respond as swiftly as possible, the deadline for the final reply depends on the type of complaint,” says the website.
A chart says it may take up 30 working days to accept (register) a complaint, the report says. After that, the creation of a Conclusions Report under “Standard procedure” may take 140 working days (roughly seven months). The annual report does not present data on the average processing times.
In each EYE case, the EIB-CM has providing an estimate for when a decision might be made, but later extended the predicted end date.
Case One: Seeking Access to a Contract
The first pending appeal is still being reviewed after more than a year, but recently the process recently moved to a new stage.
On April 13, 2023, EYE asked the EIB for a copy of the document embodying the 2019 GEMs data-sharing agreement between the EIB and ILX Management, a Dutch investment company.
The request was partially granted on June 7, 2023, but there were some significant deletions: the portions of the contract describing the scope of the agreement.
EYE appealed July 20 and it was “registered” on July 27 by EIB CM.
EYE argued that the EIB’s assertions that disclosure would harm to commercial interests and violate privacy rights were not sufficiently proven and that the public interest test was not properly considered.
On Oct. 2, the EIB said its review would be completed “no later” than Feb. 22 , 2024,“due to the current workload of the EIB-CM.”
On Nov. 15, EYE was contacted by the officer handling the matter, Carolina Velasco. She asked for “a copy of all correspondence you have exchanged with the EIB Infodesk team, including the redacted agreement you received.” EYE provided the materials the same day. EYE and Velasco discussed the case briefly Nov. 16.
Months later, on June 4, EYE was assured that the matter “is actively being handled by our team.”
It further explained that the Conclusions Report “is currently under consultation with Bank services.”
EYE asked for a clarification and Velasco replied, explaining that the Conclusions Report “presents the findings and conclusions of the Complaints Mechanism’s investigation.” She said: “The draft report undergoes consultation with relevant EIB Group services (i.e. relevant departments in the Bank) that are responsible for the activities challenged in the complaint. The draft Conclusions Report in relation to complaint SG/A/2023/02 is presently at the EIB Group services consultation stage.”
No estimated completion date has been provided.
Case Two: Dec. 4 End Estimate Provided
EYE’s request for the meeting minutes now has a new resolution target, of Dec. 4, 2024, which would be seven months about being filed.
On Dec. 18, 2023, EU requested “The minutes of the GEMs General Assembly annual meeting held in 2023.”
On Jan. 12, 2024, the EIB Infodesk, which handles initial requests, said the answer would be delayed “given the complexity of your request.” Access was completely denied on Jan. 26, 2024. (See EYE report.)
In denying EYE’s request the EIB said disclosure “would seriously undermine the EIB’s decision-making process,” citing a variety of reasons. These included a concern that “external pressure could be exerted on the members of GEMs to influence those decisions.” The EIB said that providing a partial version of the minutes “would not be meaningful.”
EYE argued in its appeal that disclosure of the minutes would not undermine the decision-making process and that factual materials discussed at the meeting should be released.
Responding to another EIB argument, EYE wrote, “The fact that minutes may reflect incomplete action is not a compelling argument for nondisclosure.”
The EIB’s denial letter site expressed concern that disclosure would result in “external pressure” being placed on the members. EYE said, “No such exemption is included in the Transparency Policy.”
The EIB’s argument that certain decisions mentioned in the minutes have already been superseded is irrelevant, EYE said. “If decisions were taken and memorialized in the minutes, those are facts, accurate as of that moment, and documents about them should be disclosed,” according to the appeal letter.
A further EIB claim, that disclosure would seriously undermine the work of the EIB Secretariat, is ambiguous and irrelevant, EYE said.
EYE also pointed out that the EIB failed to apply its redaction policy so as to release material not covered by exemptions.
EYE’s April 29 appeal was accepted May 17 in an e-mail from EIB CM that said “we hope to be able to provide you with a formal reply by 15 July 2024.”
On July 15, the Complaints Mechanism gave itself more time. “Due to the complexity of the inquiry and with a view to forming a reasoned opinion on the matter, it appears appropriate to extend the time frame for the handling of the complaint in line with article 1.11.2 of the EIB Complaints Mechanism Procedures,” the e-mail said.
“Therefore, we inform you that you may expect a formal reply from the EIB by no later than 4 December 2024.”
Past EYE Stories on GEMs
Development Banks Considering Transparency for GEMs Database (March 20, 2023)
GEMs Steering Committee Has ‘Proactive Agenda’ to Disclose Lending Risk Data (April 11, 2023)
Past EIB Deal Offers Insights into Value of Nonpublic Database on Lending Risks (June 23, 2023)
Disclosure of GEMs Database Still Likely, But When, What, and by Whom Unclear (Oct., 6, 2023)
Transparency Future for GEMs Database Remains Unclear; Meeting Upcoming, (Oct. 20, 2023)
GEMs Overseers Decide Against Moving Database; Still Promise Transparency (Jan. 18, 2024)
EIB Denies Access to Minutes of GEMS Consortium as Private Debate Continues (Jan. 29, 2024)
New GEMs Data Criticized for Lacking Granularity; But One Generality Praised (March 26, 2024)
