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Observations on the Draft Access to Information Policy of the European Bank for Reconstruction and Development

16 May 2024.

Today, the Centre for Law and Democracy (CLD) is releasing its Observations on the draft Access to Information Policy (and accompanying draft Directive), which we submitted to the European Bank for Reconstruction and Development (EBRD) as part of its Consultation on the draft Policy. The draft Policy is generally robust and includes some very positive proposals, such as getting rid of the negative public interest override, which granted the EBRD broad discretion to refuse to disclose information. But only minor changes are being proposed for the regime of exceptions, which involves a number of overbroad exceptions and class-exclusions, and grants a number of parties a veto over the disclosure of certain types of information.

Ultimately, the regime of exceptions is at the heart of any access to information system”, said Toby Mendel, Executive Director of CLD. “If it is overly broad – which is certainly the case with the draft Policy being proposed by the EBRD – the system will fail in its overriding goal of promoting transparency.

The introductory paragraph to the main provision on exceptions includes an exemplary statement of the standards that should be applied, namely that exceptions apply where disclosure of the information “would cause harm to specific parties or interests that would outweigh the public interest in disclosure”. Unfortunately, the operative provisions on exceptions do not align with those standards. For example, almost all information “related to” the Board of Directors is confidential unless disclosure is “expressly approved” by that Board. All communications between staff are exempt, as is a wide range of financial information, while third parties are granted a veto over the disclosure of information provided by them.

Another very serious shortcoming in the draft Policy is that, unlike for many international financial institutions (IFIs), there is no option for lodging an appeal with an independent appeals panel when access to information is refused.

CLD calls on the EBRD to fundamentally reconsider its approach to these issues so as to bring its access to information framework into line with better practice at other IFIs.

The Observations are available here.

For further information, please contact:

Toby Mendel
Executive Director
Centre for Law and Democracy
Email: toby@law-democracy.org
+1 902 431-3686
twitter: @law_democracy

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