«by Toby Mendel Freedom of Information: A Comparative Legal Survey by Toby Mendel Toby Mendel is the Law Programme Director with ARTICLE 19, Global ...»
The prima facie conditions for release vary with the document in question. In some cases, the Policy simply provides that a document shall be available. In other cases, the document shall be available once it reaches 432 Administrative Manual Statement 1.10, Directive on Disclosure of Information, 1985, revised in 1989.
433 The World Bank Policy on the Disclosure of Information (Washington, D.C.: World Bank, 1994).
434 Available at: http://www1.worldbank.org/operations/disclosure/policy.html.
435 Para. 4.
436 Para. 3.
Freedom of Information: A Comparative Legal Survey
a certain point, for example once it has been formally adopted by the Executive Directors. In many cases, availability depends on the consent of the affected country. Other conditions apply to the disclosure of other types of documents. These conditions are described in more detail below.
A regime of exceptions applies to further limit document availability, even when the document satisfies the prima facie conditions for release.
The Policy applies to the International Bank for Reconstruction and Development (IBRD) and the International Development Association (IDA), although in some cases different standards apply to document availability for these two different bodies. The IDA is the wing of the Bank that lends to the poorest countries, with the stated goal of reducing poverty. It provides 'credits', which are loans with zero interest, a repayment grace period of 10 years and maturities of 35-40 years. The IBRD states its goal as promoting sustainable development by lending to middle-income and creditworthy poorer countries. Although it does not "maximize profit", it "has earned a net income each year since 1948."437 There is no appeal from a refusal of the Bank to disclose information and the Policy fails to set out any process guarantees, even in relation to the time limit within which requests must be decided.
Conditions on Information Availability The World Bank Policy places a number of prima facie conditions on information availability. This section outlines the main types of conditions. Notwithstanding these conditions, disclosure of a document may still be refused if the document in question falls within the scope of an exception. In general, information relating to safeguards for certain vulnerable or affected groups or interests - such as indigenous peoples, those likely to be dislocated by a project or the environment - is more likely to be available than other types of documents.
437 See http://web.worldbank.org/WBSITE/EXTERNAL/EXTABOUTUS/0,,contentMDK:20049553~ menuPK:58859~pagePK:34542~piPK:36600~theSitePK:29708,00.html.
A number of other documents are available at different points in their life. For example, the Program Document for a Poverty Reduction Support Credit and the Project Appraisal Document for an investment project, appraising the feasibility of and justification for Bank support for
Freedom of Information: A Comparative Legal Survey
the program, are available once the credit/project has been approved (paras. 18 and 20, respectively).
In some cases, the determining 'point' depends on the borrowing country. For example, a Environmental Assessment required to be prepared by a borrowing country will be available by the Bank after is has been published at a place accessible to project-affected groups (para. 31).
Another example concerns Resettlement Instruments (RI), again prepared by the borrower, which the Bank will make available once the RI has been made accessible to those affected, including in an appropriate language and form, and the Bank has accepted it as providing an adequate basis for project appraisal (para. 34).
Historical information, meaning documents maintained by the Archives unit of the Bank's Information Solutions Group, is available after 20 years. The Policy is not retrospective. However, historical information that would be available under the new policy but was not available previously is normally available after 5 years (paras. 77-78).
Country Vetoes A large number of documents are effectively subject to a country veto, or at least a presumptive veto. A presumptive veto allows the country to veto release, as long as the Executive Directors agree. An example of a document that is subject to a different type of veto for IDA and IBRD countries is the country assistance strategy, providing the framework for Bank assistance to a country over time. IBRD countries have an effective veto over the release of these documents whereas IDA countries simply have a presumptive veto, subject to being overruled by the Directors (respectively paras. 8 and 7).
The Bank, and other intergovernmental organisations, often claim that they must respect country claims for confidentiality. Indeed, this claim underlies many of the rules limiting disclosure of Bank documents in this category, and further informs one of the exceptions (see below). However, the fact that the Directors can overrule country objections for certain documents severely tests the legitimacy of this claim.
In other cases, the document will be released unless the affected country objects. This is the case, for example, for documents prepared under the Heavily Indebted Poor Country Initiative (para. 27). This presumably makes it at least marginally more difficult for countries to prevent disclosure.
Other Conditions In some cases, documents will be made available unless the Directors object. This is the case, for example, for various summings up by the Chairman of the Board of Executive Directors (see paras. 12 and 26). It is also the case for sector, thematic and operational evaluations prepared by the Operations Evaluation Department (para. 50).
A number of other documents are available if and when other conditions are met. For example, directors have the power to decide upon release of some documents. This is the case for economic and sector work reports which do not need to be distributed to the Executive Directors, which may be made publicly available by the director concerned, taking into account such factors as the need to protect confidential information and the country's internal deliberative process, and after consultation with the country concerned (para. 6).
In some cases, conditions are layered, so that both the consent of the affected country and of the Bank is required. This is the case, for example, for accelerated or special access to historical documents (paras.
79 and 80).
Exceptions The availability of documents subject to certain conditions, as described above, is further conditional upon the information contained in those documents not falling with the scope of an exception set out in Part IV of the Policy, entitled Constraints.438 Almost none of the exceptions listed refers to the risk of harm; indeed many exempt wholesale large categories of documents. None of the exceptions are subject to a public interest override.
The first 'constraint' is that proceedings of the Board of Executive Directors and its committees are confidential, as provided for in the Board's Rules of Procedure. As a result, unless the Board approves them for disclosure, documents prepared for consideration by the Board are not available.439 This is a contentious matter and getting this rule changed is one of the greatest priorities for many of those campaigning for greater Bank openness.
The Bank also makes a commitment to respect the fact that certain documents are provided in confidence. In particular, it will not disclose 438 See para. 82, as well as footnote 4 to Part III.
439 Para. 83.
Freedom of Information: A Comparative Legal Survey trade secrets, pricing information or copyrighted material (para. 84). It will also not disclose material in breach of attorney-client privilege or where this may prejudice an investigation (para. 85). This is consistent with many freedom of information laws.
Paragraph 86 sets out an exception "to preserve the integrity of the deliberative process and to facilitate and safeguard the free and candid exchange of ideas between the Bank and its members". On this basis, analyses of country creditworthiness and credit ratings, and supervision reports are not publicly available. This also provides a basis for refusing to disclose documents relating to the decision-making process which have been exchanged with international organisations, aid agencies and private banks. It is unclear how the "free and candid exchange of ideas" requires the Bank to keep all such documents secret. The next paragraph applies the same rationale to internal Bank processes, providing that "internal documents and memoranda written by Executive Directors and their Alternates and Senior Advisors, by the President of the Bank, and by Bank staff to their colleagues, supervisors, or subordinates are considered confidential". Again, the scope of information covered is excessive.
There is also an exception relating to sound financial management, pursuant to which the Bank will not provide estimates of future borrowing, financial forecasts, information on individual investment decisions and credit assessments.440 Pursuant to the Bank's Principles of Staff Employment, it is required to respect the privacy of its employees, so all individual and medical records are exempt. Again, there is no requirement of harm to a legitimate privacy interest or public interest override, of particular importance in relation to privacy.441 Finally, paragraph 90 provides a catch-all exception for ad hoc decisions to refuse to disclose where this would be "detrimental to the interests of the Bank, a member country, or Bank staff". This is an extremely broad, unfettered power although it is perhaps to some extent constrained by the examples of situations where it might be used, including where the information was excessively frank or because of premature disclosure, an eventuality which seem already to be adequately addressed by the conditions placed on disclosure of different documents.
440 Para. 88.
441 Para. 89.
Duty to Publish The Policy does recognise the proactive publication of various types of information, although in most cases it simply refers to an existing publication rather than creating a new obligation to publish.
General procurement notices for each Bank-financed project are published in the UN publication, Development Business, which also publishes major contract award decisions (paras. 35 and 36). The Policy also refers to the leading Bank publications, its Annual Report and the World Development Report (para. 53), as well as the Annual Index of Publications and the bimonthly Publications Update (para. 55). Finally, the Policy refers to the Bank's practice of publishing a wide range of information about itself, including financial and administrative information (Parts III.C and III.D).
Comparative Analysis As the survey above demonstrates, countries all over the world are recognising that individuals have a right to access information held by public bodies and that legislation is needed to give practical effect to this right. The survey indicates that there are significant areas where national legislation is reasonably consistent, but that there are also areas of divergence. This chapter looks at the different issues dealt with in freedom of information laws, pointing out consensus themes, as well as areas of disagreement. It also highlights some of the more imaginative or innovative approaches adopted in different countries.
The Right of Access The right of access is the fundamental reason for adopting a freedom of information law, and most legislation sets out this basic right pretty clearly. In some countries, particularly those with more established access regimes, everyone, regardless of citizenship, can claim the right, while in other countries this right is restricted to citizens or residents. There are fairly obvious reasons for extending the right to everyone, and it has not proved to be a significant additional cost or burden in those countries where this is the case.
In some countries, such as Bulgaria and South Africa, the law also includes a set of principles governing access. These can be a useful way to set out clearly the underpinnings of the law, and they can also serve as an important interpretive tool, helping to clarify ambiguity or the apparent conflicts between openness and other public interests that are bound to arise.
Definitions There is some discrepancy in the way the different laws approach the question of definitions. Some, like the Thai law, define information very broadly, so that it covers any record held by a public authority, regardless of form or status, including whether or not it is classified. Others, like the Pakistani law, restrict the scope to information used for official purposes.
This unnecessarily limits the right since some there is no legitimate basis
for this restriction and some information may be useful to the public even though it is not used for official purposes.
The Swedish law uses the definition of information as a sort of surrogate internal deliberative processes exception, providing that only documents relating to matters which have been finally settled are covered, subject to certain exceptions. It may not make a lot of difference to do it this way, but it seems preferable to keep the exceptions regime in one place. Also, using the definition to exempt information may result in that information not being covered by the public interest override.
There are two main approaches when it comes to defining which bodies are covered by the freedom of information law. First, and most common, is simply to define the bodies covered and then let any borderline issues be dealt with on a case-by-case basis. Second, some laws provide a list of bodies covered. This has the virtue of being clear, but it may also be excessively limited and rigid, which could be a problem over time. The UK law seeks to avoid this problem by providing that the Secretary of State may designate additional public bodies, although this also has its problems. Perhaps an ideal solution would be to combine both systems, providing a generic definition, but also a list of bodies which are specifically covered.