Letter from Article 19 to President Enrique Iglesias Regarding IDB Information Disclosure Policy Review

5 December 2003

March 2003

President Enrique V. Iglesias
1300 New York Avenue, NW
Washington, DC 20577
United States of America

Dear President Iglesias,

Re: Review of the Inter-American Bank's Information Disclosure Policy

We, the undersigned organizations and individuals, welcome the review currently being conducted by the Inter-American Bank of its Information Disclosure Policy and the Bank's commitment to improved transparency. We particularly welcome the general commitment to transparency and accountability and the specific commitment to cover, "in a more comprehensive fashion those Bank documents that are available to the public related to the Bank's operations". At the same time, we are concerned that the proposals fail to fully guarantee the public's right to know in accordance with international standards and believe that the draft Policy needs substantial revision.

We address three specific concerns with the existing draft Policy, namely the system of exceptions, the need for process guarantees and the lack of an independent review mechanism. We note that these concerns go to the very heart of the system of disclosure foreseen by the draft Policy. The first Basic Principle set out in the draft Policy states: "Information concerning the Bank and its activities will be made available to the public in the absence of a compelling reason for confidentiality." This states the principle of maximum disclosure, which we applaud. In fact, however, the draft Policy fails to implement this principle. Instead, it provides a schedule of specific documents that will be made available, often subject to certain conditions, along with a presumption that other documents will not be disclosed.

International Standards

Under international law, everyone has the right freedom of expression and information, including the right to access information held by public authorities. In his 1998 Annual Report, the UN Special Rapporteur on Freedom of Opinion and Expression declared that freedom of information includes the right to access information held by public bodies: "[T]he right to seek, receive and impart information imposes a positive obligation on States to ensure access to information, particularly with regard to information held by Government in all types of storage and retrieval systems…." Although the Special Rapporteur directed his comments to States, the same underlying principles of respect for human rights apply to intergovernmental organisations, including the development banks. The OAS Special Rapporteur on Freedom of Expression has also affirmed the fundamental nature of access to information held by public bodies.

The international human rights NGO, ARTICLE 19, Global Campaign for Free Expression, has published a standard setting work, The Public's Right to Know: Principles on Freedom of Information Legislation, a copy of which is enclosed. These standards have been endorsed by the UN Special Rapporteur, as well as the OAS Special Rapporteur, and are applicable to both national governments and inter-governmental bodies. A review of the Bank's Information Disclosure Policy against these Principles shows that the Policy fails to meet international standards in several key areas.

Exceptions to Disclosure

The draft Policy lists a number of documents, along with the circumstances in which they may be disclosed. Documents not specifically mentioned will not be available. In general, disclosure takes place either after the document has reached a certain level of development (for example, being finalised) or approval (for example, approval by the Board of Executive Directors). In a number of cases, documents will be released only after the country in question agrees or as long as it does not object. The rule is generalised in Section III.D.2, which states: "Information which has been identified as sensitive by the government of a member country . . . that is included in any of the documents that are specified in this policy shall not be available to the public."

We understand that the Bank needs to maintain good relations with member States, and other parties, but do not accept that this requires the Bank to simply accept a State's designation of information as secret, which fundamentally undermines the stated goals of the draft Policy. The breadth of this exception is highlighted by the fact that it covers not only information provided by the State in question, but also documents produced by the Bank.

Instead of simply accepting the State's designation of information as secret, the Bank should use its influence to negotiate clear and open criteria for labelling information as confidential, and should then apply those criteria when deciding whether or not to disclose documents. Member countries should have a right to raise substantive concerns about the potential harm of disclosure, which could then be reviewed by an appropriate authority. The draft Policy actually recognizes this possibility in some sections, and makes provision for the resolution of disagreements with member countries about disclosure, as illustrated by the following examples:

• if borrowing countries object to release of an Environmental Impact Assessment, the matter will be taken to the Board of Executive Directors for a decision on how to proceed." (Section III.A.8);
• the Board of Executive Directors must agree with country objections to the release of OVE documents (Section III.A.10); and
• if countries express objections to the release of information otherwise subject to disclosure pursuant to Section III.A, the Bank will "as it considers appropriate, makes adjustments to deal with the matters of concern prior to making such documents available to the public" (Section III.A.20).

The draft Policy also includes a number of restrictions which apply to further restrict availability of the documents that may otherwise be subject to disclosure. Under international law, a refusal to disclose information is legitimate only where the refusing body can show that the following conditions are met:

1. the information relates to a legitimate aim listed in the law/policy;
2. disclosure threatens harm to that aim; and
3. the harm to the aim is greater than the public interest in having the information disclosed.

In general, the restrictions contained in the Bank's draft Policy do serve legitimate aims, including maintaining good relations with States and other international organisations. However, many are not subject to a harm test and none are subject to a public interest test. For example, Section III.D.3 excludes a range of documents from disclosure on the basis of the "need to preserve the integrity of the deliberative process and to ensure that there is an open and free exchange of ideas". This is a legitimate aim, but the Policy should exempt only specific information whose disclosure would harm these interests rather than providing a list of categories of documents which are completely excluded from disclosure.

Process Guarantees

In practice, implementation of the right to know requires clear process guarantees, including requirements of timely decision-making and that refusals be accompanied by substantive written reasons. The former is necessary to prevent undue delay in the provision or refusal of information. Written reasons for a refusal are necessary not only for any appeal, but also because requesters have a right to know why their requests have been refused. In particular, if information is withheld, either in whole or in part, it should be clear to external stakeholders exactly what is not being disclosed and why. The draft Policy provides neither for timelines for the release of information nor for reasons to be given for any refusals to disclose.

These guarantees are provided for in almost all national access to information laws and the UNDP in its Public Information Disclosure Policy, which requires requests to be responded to within 30 business days and denials to be accompanied by written reasons.

Independent Review Mechanism

Respect for the right to access information cannot be guaranteed unless individuals have a right to appeal any refusal to disclose information to an independent body. Such a right of appeal is crucial to the success and credibility of any disclosure system because in the absence of a review body, there is no independent check on whether a refusal to disclose information is in accordance with the applicable law or policy.

This is recognised in most national laws on access to information law, which provide for an appeal to an independent administrative tribunal or ombudsman, and often from there to the courts. Significantly, it has also been accepted by UNDP in its Public Information Disclosure Policy, which provides for the establishment of an Oversight Panel for appeals, consisting of three UNDP professional staff members and two members from the non-profit sector.

The Bank's draft Policy, by contrast, does not provide for any independent review of refusals to disclose information. Indeed, the draft Policy suggests hostility to independent review. For example, it states as a Basic Principle: "The final determination as to what information may be released to the public shall rest with the Bank."

Recommendations

In our view, proper transparency requires the Inter-American Development Bank, like national public authorities and, increasingly, intergovernmental organizations, to accept the public's right to know as reflected in an effective and enforceable disclosure system that meets international standards on freedom of information. In order to do this, the draft Information Disclosure Policy needs to be substantially revised. We recommend, in particular, that the draft Policy be revised so as to:

• provide for a narrow list of legitimate aims and allow information to be withheld only where disclosure would threaten to harm those aims, subject to a public interest override;
• include strict timelines for the disclosure of information and a requirement that any refusals be accompanied with substantive written reasons; and
• establish an independent body to review refusals by the Bank to disclose information.

We recognize the challenges that arise in drafting an improved Information Disclosure Policy. Nevertheless, we are of the view that the proposed Policy will fail effectively to guarantee the public's right to know unless it is substantially amended. We urge you to bring the Bank's Policy into line with the standards we have outlined in this letter.

Andrew Puddephatt Executive Director ARTICLE 19, Global Campaign for Free Expression United Kingdom Graham Saul Program Manager Bank Information Center United States Thomas S. Blanton Director National Security Archive George Washington University United States Felipe González Director Chilean Forum for Freedom of Expresion Peter Mihok National Coordinator The Center for Environmental Public Advocacy Slovak Republic Petr Hlobil International Oil and Climate Coordinator CEE Bankwatch Network Czech Republic Jaime López Co-Director PROBIDAD El Salvador Linda Hemby Co-Director Periodistas Frente a la Corrupción El Salvador Henneke Brink Multilateral Financial Institutions Both ENDS Netherlands Jorge Islas Lopez President Article 13 Mexico Alasdair Roberts Director Cambell Public Affairs Institute The Maxwell School of Syracuse University United States Alex Wilks Coordinator Bretton Woods Project United Kingdom Gergana Jouleva Executive Director Access to Information Project Bulgaria

Manuel Fernandez de Villegas Director Fundador Transparencia, S.C. Mexico Doug Norlen Policy Director Pacific Environment United States Antonio Tricarico Campagna per la riforma della Banca mondiale, Reform the World Bank Campaign Italy Heffa Schuecking Director Urgewald Germany Soren Ambrose Senior Policy Analyst 50 Years Is Enough United States Robert Weissman Co-Director Essential Action United States Christine Eberlein Berne Declaration Switzerland John Fitzgerald Senior Policy Analyst Government Accountability Project United States Bernice Romero Policy Deputy Director Oxfam America United States Janneke Bruil International Financial Institutions Programme Friends of the Earth International The Netherlands Bill Spencer Executive Director Washington Office on Latin America (WOLA) United States Vince McElhinny Director of IDB Civil Society Initiative InterAction United States Nancy Alexander Director Citizens' Network on Essential Services United States Shannon Lawrence International Policy Analyst Environmental Defense United States