Catalog

OM Section 52: Issued on 27 March 2003
Confidentiality and Disclosure of Information

Bank Policies (BP)

Introduction

1. Openness and accountability in ADB's operations are essential to ensure the effectiveness of ADB's operations and the support of ADB's shareholders and stakeholders. ADB's policy on confidentiality and disclosure of information emphasizes a presumption in favor of disclosure where disclosure would not materially harm the interests of the Bank, its member countries and private sector clients.disclosure, while taking into account practical, legal and other constraints, which require ADB to maintain the confidentiality of some types of information under specific circumstances. The policy includes a classification system for documents and other records containing information, and procedures for the release of such documents and records to the public.

Policy

2. ADB's policy provides for the greatest possible degree of transparency and disclosure in all areas and aspects of its activities and operations, while recognizing that there are, in particular, important practical and legal constraints. Subject to such constraints, the policy stresses the importance of instilling a culture of openness among ADB staff. ADB seeks not only to ensure transparency and disclosure in the areas of its operations, but also to be seen as actively encouraging transparency and disclosure, as a model for those whom ADB seeks to assist.

3. The advantages of a policy encouraging the fullest possible disclosure of operational information are readily available. Such policy (i) encourages debate and dialogue on policies and operations, resulting in new and varied perspectives; (ii) assists in ensuring effective local participation in decision-making, leading to "ownership" of decisions by involved participants, and improving project implementation and sustainability; (iii) helps to broaden understanding of ADB's role among donor and borrowing members, co-financiers, nongovernment organizations, academics and the public at large, ensuring both financial and intellectual support for ADB and its mission; (iv) helps in facilitating coordination with others interested in the common goal of development of the region; and (v) provides the fullest information to the supporters of ADB, consistent with ADB's accountability to its shareholders and indirectly to its supporters others providing support to the institution.

4. While ADB encourages the greatest possible disclosure of information, there are legal and practical constraints regarding disclosure of information which must be taken into account to protect ADB's interests and the legitimate interests of those who deal with ADB, and to sustain cooperative relations with the various members of ADB. These constraints, which should be balanced against ADB's presumption in favor of disclosure, include the following: (i) information provided to ADB on a confidential basis cannot be released without the prior consent or approval of the party providing the information, and (ii) documentation and propriety information may be the legal property of other parties. It is also important for ADB (iii) to protect the integrity of its deliberative and decision-making process, and as such, to encourage frankness of dialogue and the free flow of ideas internally. Thus, internal documents prepared by staff or Management, including initial negotiating positions and committee deliberations, must be protected to ensure the free flow of ideas. ADB also has (iv) a working relationship with its borrowing members, often sharing privileged information particularly with regard to policy dialogue and other critical matters. Borrowing members and ADB must be able to undertake free and candid discussions on the basis of reciprocal respect for the confidential character of information. Moreover, (v) in private sector operations, the legitimate business interests and proprietary information of private sector clients must be protected to preserve ADB's ability to carry on such activities. Finally, (vi) ADB has a general obligation to establish and maintain safeguards with respect to the personal privacy of staff and to protect the confidentiality of personal information.

5. One additional constraint relates to the cost of disclosure of information. While ADB's policies should encourage the greatest possible disclosure of information, the cost to ADB of dissemination of information, and cost recovery, if appropriate, must be considered in the light of limited financial resources.

6. As regards the proceedings of the Board of Directors, Section 9 of the Rules of Procedure of the Board of Directors of ADB provides that such proceedings are confidential and shall not be published except when the Board decides to authorize the President to arrange for suitable publicity on any matter relating thereto.

7. The policy became effective on 1 January 1995.

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Basis: This OM section is based on

ADB. 1994. Confidentiality and Disclosure of Information. Manila. (Doc.R134-94, issued 18 August 1994)

27 March 2003
Issued by the Strategy and Policy Department with the approval of the President.

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Operational Procedures (OP)

Presumption in favor of disclosure

1. In implementing the Policy on Confidentiality and Disclosure of Information, staff must act on the basis of a presumption in favor of disclosure, which means that documents must be made available on request unless there are legal, practical, or other constraints. Such presumption is for total disclosure in respect of unclassified and declassified documents. It is also applicable in respect of the declassification and release of documents. Moreover, ADB has adopted a presumption in favor of disclosure for its private sector operations where disclosure does not materially harm the business and competitive interests of ADB clients. It is important to temper openness and transparency with respect to ADB operations and policies where ADB is dealing with disclosure of information provided by ADB's private sector clients (and/or co-financiers) regarding their business plans and objectives. Any disclosure of such plans and objectives must only be made with the consent of the private sector client (and/or co-financier).

2. ADB has established a classification system for documents and other records containing information, which is necessary to preserve confidentiality of sensitive material and to provide guidance to staff in this regard. This classification system should not be an impediment for disclosure. Therefore, staff should avoid overclassifying documents. However, any classified documents may be made available to the public only after they have been declassified. Moreover, while ADB encourages the greatest possible disclosure of information, the cost to ADB of dissemination of information, and cost recovery, if appropriate, must be considered in light of limited financial resources. Once ADB discloses a document, that document will become available to all so that one party/requestor will not gain an undue advantage over another.

Responsibility

3. The Office of External Relations (OER) is the focal point for the dissemination of information to persons or entities outside ADB and for the maintenance of appropriate records of such dissemination.

4. The classification and declassification of documents is in the first place the responsibility of Heads of the originating Department or Office, which may consult OER and the Office of The Secretary (OSEC) regarding the appropriate classification of documents. For Board documents, the classification system is implemented by OSEC. Any classification or declassification of documents is subject to review and guidance by Management, which may change the classification of a document or determine the appropriate classification of a document, if circumstances so warrant.

5. OER responds, where appropriate, in liaison with Departments/Offices concerned, directly to requests for documents and information addressed to OER. Requests for documents and information (both classified and unclassified) addressed to other Departments and Offices should be copied to OER as soon as possible. Departments/Offices may reply, in consultation with OER, directly to such requests. However, copies of any such responses should be provided to OER for information. As appropriate, the government, borrower, co-financier, project sponsor (or client) concernedmay also be consulted. A full response or, if a full response cannot be made, an interim response by the Department or Office concerned, including a resident mission, or by OER, will be made within one calendar month of the date of receipt of the request by the originating Department or Office. Where the requested information cannot be provided, reasons therefore will be stated in a letter, the contents of which will be drafted, as necessary, in consultation with the Office of The General Counsel (OGC). Copy of such letter should be provided to OER for information.

Classification System

6. Documents and other records of ADB containing information may be classified as follows.

(a) CONFIDENTIAL: Confidential documents and records are those which contain particularly sensitive information for limited internal use of ADB, release of which would reasonably be expected to have a seriously adverse effect on, or be prejudicial to, the interests of ADB, its members, borrowers, or others (e.g., co-financiers). More specifically, a "Confidential" classification should be restricted to documents and records, the disclosure of which has not been authorized by a government or other interested party (e.g., in case of private sector investments) and to those documents determined by the Head of the originating Department or Office concerned (or the person acting on his/her behalf) to meet the aforementioned criteria, which involve at least one of the following categories:

(i) information or documentation obtained by ADB from another party with the expectation, express or implied, that it will be kept in confidence (e.g., market-sensitive information, or information covered by a confidentiality agreement between ADB and another party, or by a confidentiality undertaking made by ADB);

(ii) documents or proprietary information owned by others but held by ADB in the expectation, express or implied, that it will be kept in confidence;

(iii) information derived from ADB's deliberative or decision-making process, such as internal staff memoranda and staff consultant reports, minutes and summaries of discussions at Board meetings unless such information has been authorized to be disclosed and other related documents;

(iv) information derived from similar decision-making processes involving open and candid exchanges of ideas between ADB and any of its members, particularly with respect to policy dialogue;

(v) legal and other documents relating to specific private sector investments, including private sector operations by a government or governmental entity, unless consent to disclose has been obtained from the concerned parties; and

(vi) staff information of a personal nature, such as personnel records and medical files (except for disclosure to the individual staff member concerned).

(b) FOR OFFICIAL USE ONLY: This classification is given to documents or records determined by the Head of the Department or Office concerned (or the person acting on his/her behalf) to contain sensitive information for the internal use of ADB, the release of which could reasonably be expected to interfere with policies or regulations of ADB or jeopardize its activities or relations with its members, borrowers, or others (e.g., co-financiers), but which does not necessarily include information falling into the six categories described above for "CONFIDENTIAL" classification under (a) above.

7. Any classification of documents and/or records is subject to review and guidance of Management, which may decide on the appropriate classification to be given to a document or record or reclassify a document or record, if circumstances so warrant.

8. All documents or records that are not classified or reclassified as per paragraph 6(a) or 6(b) above are considered unclassified and, therefore, are made available to the public on request.

9. The classification system also applies to all electronically based and computer-generated information, as well as photographic and graphic material.

Classification of Documents Circulated to the Board

10. (a) The classification system is implemented by the Office of The Secretary (OSEC) as follows. Documents originating outside OSEC and circulated to the Board fall into two broad categories:

(i) those which are circulated for deliberation or decision or both (first category); and

(ii) those which are circulated for information (second category).

(b) Since they are being circulated for deliberation or decision by the Board, all documents in the first category will be appropriately classified via the transmittal cover memorandum prepared by OSEC. Depending on the content of the document, such classification (Confidential or For Official Use Only) will be assigned by OSEC even if the originating Department or Office has not found it necessary to classify the document by reason of its contents. This is because it is necessary to classify a document during the period when it is subject to the deliberative process of the Board. In such cases (where classification is only via OSEC's transmittal memorandum), the classification will automatically expire upon completion of consideration by the Board. Where, however, the document has also been classified or reclassified by the originating Department or Office, or Management, the transmittal memorandum of OSEC will bear the same classification, and this classification will continue to govern the document after completion of Board consideration or until declassification takes place.

(c) Since they are not circulated for purpose of deliberation, all documents in the second category will not as a rule be classified by OSEC through the transmittal cover memorandum. However, if such documents have been classified by the originating Department or Office because of their contents, the transmittal cover memorandum of OSEC will also bear the same classification.

(d) As set out in (a) and (b) above, OSEC is primarily concerned with applying a classification to cover a document during the period when it is subject to the deliberative process of the Board. This is required particularly in view of the provisions of Section 9 of the Rules of Procedure of the Board of Directors relating to confidentiality of Board proceedings. On the other hand, the responsibility for determining whether the contents of a document require it to be classified or not remains with the Head of the originating Department or Office, subject to review and guidance by Management. OSEC may suggest to the originating Department or Office to classify, or change the classification of, a document by way of its job content, or seek guidance from Management regarding the appropriate classification or reclassification of a document, if circumstances so warrant.

Declassification of Previously Classified Documents

11. Heads of Departments or Offices are responsible for declassifying or reclassifying documents labeled under ADB's earlier classification system. This should be achieved on an ad hoc basis as requests for such documents are received or it becomes otherwise necessary to declassify or reclassify them. As appropriate, the government, borrower, co-financier, client, or project sponsor concerned will also be consulted and necessary consents will be obtained prior to disclosure. Information which has been provided to ADB prior to the adoption of ADB's disclosure policy by the Board of Directors will be properly protected and not disclosed without appropriate consent or authorization.

Access to Documents and Declassification of Documents

12. In line with ADB's policy, the presumption is that all documents which have been declassified or which can be declassified, and those documents which have not been classified as "Confidential" or "For Official Use Only", may be released to the general public. To the extent possible, ADB will not permit information relevant to a significant allegation of criminal behavior or unethical conduct, including conflict of interest, to be classified as "Confidential" or "For Official Use Only". Any classified documents may be made available to the public only after they have been declassified.

"CONFIDENTIAL" Documents

13. "Confidential" documents are not released outside ADB and should be made available within ADB only to ADB staff with a demonstrated need to know the information contained in the document. The classification of a document as "Confidential" will remain for such period of time as determined by Management or the originating department or office, subject to declassification at any time by Management. In general, documents marked "Confidential" by a government, borrower, or private sector sponsor (co-financier) will be declassified and released only with the consent of such government, borrower, or private sector sponsor (co-financier).

"FOR OFFICIAL USE ONLY" Documents

14. Information or documents classified "For Official Use Only" are for internal use and are not released outside ADB. "For Official Use Only" documents will automatically be declassified on a date five years after the date of classification, unless the Head of the originating Department or Office (or the person acting on his/her behalf) expressly determines to continue the classification, provided, however, that documents marked by a government or private sector sponsor (co-financier) "For Official Use Only" will generally be declassified and released only with the consent of that government or private sector sponsor (co-financier). With the exception of a document which a government or private sector sponsor (co-financier) has not consented to release, the Head of the originating Department or Office, subject to review and guidance by Management, has the discretion to declassify at any time information or documents classified "For Official Use Only".

15. OSEC prepares an annual list of Board documents classified as "Confidential" or "For Official Use Only" to facilitate the declassification of documents by Management and the Head of Department/Office concerned. Declassification of other documents and records is considered on a case-by-case basis.

Declassification and Release of Specific Documents

ADB Basic Documents and Resolutions of the Board of Governors

16. The Basic Documents of ADB (i.e., the Agreement Establishing the Asian Development Bank, the By-Laws of ADB, the Rules of Procedures of the Board of Governors and Board of Directors, and the Agreement between the Asian Development Bank and the Government of the Philippines regarding the Headquarters of the Asian Development Bank) are unclassified and available for distribution to the public. The Resolutions of the Board of Governors of ADB are classified as Confidential.

Documents related to ADB's Deliberative and Decision-Making Process

17. Internal documents prepared by ADB staff or Management, including initial negotiating positions and committee deliberations, internal staff memoranda, minutes and summaries of discussions at Board meeting unless such information has been authorized to be disclosed, draft documents and documents circulated to Board committees, and other related documents (e.g., aide memoires and decisions, deliberations and minutes of departmental committees, such as the consultant selection committee and procurement committee) are generally classified as Confidential and not disclosed to the public. However, such documents may be declassified if circumstances so warrant.

Public Sector Operations

18. (a) Project or Program Profile: Loan proposals for projects and programs in the public sector are listed on ADB's website under ADB Business Opportunities at the earliest possible time. In addition, for all public sector operations, regional departments concerned are required to prepare a more detailed project or program profile (PP) describing the main elements of the proposed project or program including environmental aspects, social information, information about resettlement and indigenous people, and dates for public consultations if arranged by the borrower or sponsor. The PP should indicate in about two pages the major components of the project, objectives, contemplated costs, financing plan, executing or implementing agencies, contemplated procurement and consulting arrangements, contact points for information and other relevant material. The initial PP is prepared to coincide with the initial listing of the project and program in ADB Business Opportunities, and the PP should be updated each time major changes occur in the project design (including at each stage in which changes are made in the ADB Business Opportunities reference) up to the appraisal stage. The PP is unclassified and made available on the ADB's external website. Updated PP information is provided by operational departments. OER refreshes website content on a weekly basis to reflect any changes made to the PP so that the public can view current project and program information on the Internet. The purpose of the PP is to provide as much information as possible to the public during the earliest stages of project preparation, to ensure adequate debate, dialogue and participation by concerned parties, including affected populations at the formative stages. Subsequent to consideration of a project by the Board of Directors, the PP is updated at least once a year during Project implementation.

(b) RRP:¹ The Report and Recommendation of the President (RRP) of a public sector project or program is declassified and made available to the general public following its approval by the Board of Directors. Similarly, Board documents relating to amendments or changes to such projects or programs approved earlier are declassified and made available to the general public after Board review or consideration. ADB staff should inform governments, borrowers and other entities directly concerned that it is ADB's policy to release RRPs after Board approval provided that technical information concerning the project may be made available where issues of confidentiality are not present. ADB's invitation to negotiate should include a request that the prospective borrower's negotiating team be prepared to indicate any information or data that is confidential or sensitive, or might adversely affect relations between ADB and the government or borrower. These issues should be discussed during negotiations and taken into account in preparing the final RRP. Where significant issues of confidentiality do arise for any party concerned, including co-financiers, relevant portions of the RRP should be circulated separately to the Board in the cover memorandum for the RRP and will not be provided to the public. In addition, as exceptions to be justified on a case-by-case basis, RRPs, which are highly sensitive, may be fully restricted from circulation to the public at the request of the Head of the Department and with the approval of ADB Management. In such cases, the cover page of the Board paper will state that the RRP is classified "Confidential" and is not to be released to the public.

(c) Technical Assistance Reports: After approval by the Board of Directors or President, technical assistance reports will be declassified and may be released to the public unless Management decides to classify any particular document for a specified period of time. Feasibility studies arising from technical assistance reports may also be released except to the extent classified by the government concerned and subject to cost considerations. Governments should be requested to indicate to ADB any information or data contained in the feasibility study that is confidential or sensitive, or might adversely affect relations between ADB and the government and/or the borrower. Moreover, feasibility studies or parts thereof, can only be released after their completion. Technical assistance reports prepared under a loan-financed project are the property of the borrower and can only be released with the agreement of the borrower and/or government.

(d) Country Specific Documents

(i) Country classification: Board documents regarding classification of member countries are unclassified and may be released to the public following Board approval.

(ii) Economic Reports, (Interim) Operation Strategies and country Economic Reviews are generally unclassified and may be released to the public. Country Strategy and Program (CSP) and Country Strategy and Program Updates (CSPU) documents are generally classified as "For Official Use Only" for the duration of Board deliberation only and will be declassified after consideration by the Board of Directors. However, Management may withhold any part of the aforementioned documents, if circumstances so warrant. Accordingly, ADB staff in the process of preparing such papers, should advise the governments concerned of this policy and ask each government to identify confidential information that should be segregated wherever possible from such reports and separately presented to the Board of Directors. In some cases where confidentiality requires, the entire document may be classified as Confidential.

(iii) Economic and Political Updates are generally classified as Confidential and, therefore, may not be released to the public.

(iv) Poverty Reduction Partnership Agreements are unclassified and are made available to the public following circulation to the Board of Directors.

(e) Policy and Strategy Papers: All public sector policy or strategy papers, once approved by the Board of Directors, will be declassified and may be released to the public, other than those which Management has specifically advised the Board are to remain classified.

(f) Consultation Drafts and Working papers or "For Official Use Only": In preparing a public sector policy or strategy paper for Board review or consideration, ADB staff may consult with interested individuals and groups outside the ADB, and may make drafts of such policy or strategy papers, including drafts of Board working papers available on ADB's website and/or to individuals and groups for review and comment. Once such policy or strategy papers are prepared for submission to the Board of Directors for approval, they will be treated, depending on the determination of the Head of the originating Department or Office, as "Confidential" or "For Official Use Only" until the full process of Board review and consideration is completed. All public sector policy and strategy papers, once approved by the Board of Directors, will be declassified and may be released to the public.

(g) Environment-Related Documents

Environmental assessment reports for ADB projects are intended to be accessible to interested parties, and the general public. The summary initial environmental examination (IEE) and environmental impact assessment (EIA) reports are required to be circulated worldwide, through the depository library system, and are placed on the ADB website. The full EIA or IEE reports are also made available to interested parties upon request. ADB's "120 day rule" requires that the summary EIA, or in relevant cases the summary IEE, is made available to the general public at least 120 days before Board consideration of the loan, or in relevant cases, before approval of significant changes in project scope. The 120 day rule applies to all public sector category A and selected category B projects deemed to be environmentally sensitive. To facilitate the required consultations with project affected groups and local nongovernment organizations, the borrower will provide relevant information on the project's environmental issue in a form and language(s) accessible to those being consulted.

(h) Resettlement Plans and Resettlement Frameworks

ADB requires that the Executing Agency or project sponsors disseminate information to, and closely consult with, people affected in resettlement planning. Public disclosure of resettlement plans (RPs) and/or resettlement frameworks (RFs) is generally required before appraisal, and in the case of public sector projects with no appraisal, prior to Board consideration. The RPs/RFs, or their summaries, will also be posted on the involuntary resettlement page of the ADB website when these documents are provided by Regional and Sustainable Development Department.

(i) Other Technical Information on Projects: Project completion reports, program completion reports, performance audit reports, technical assistance completion reports, evaluation reports for public sector projects and programs are generally unclassified by the originating departments. If an interested party requests other additional information about a public sector project, public sector program, or technical assistance under preparation, implementation or completion, the Head of the concerned Department or Office may declassify and release factual or technical documents, or portions of such documents, after consulting with the government, borrower or recipient to identify any sections that involve confidential material or that could compromise relations between the government, borrower or recipient and the ADB.

(j) Loan Agreements and other related legal documents: Loan agreements and other related legal documents between ADB and other parties (e.g. project agreements and guarantee agreements) which were signed before 1 January 1995 may be released by ADB only with the approval of the borrower and/or government concerned. However, such documents may be released to the public if they were signed after 1 January 1995, except as and to the extent that the RRP and/or the loan agreement, project agreement or guarantee agreement was classified as Confidential by the government concerned. During loan negotiations, ADB's negotiating team should inform the borrowing government that the loan agreement and other related legal documents will become publicly available on request. The borrower's negotiating team should be requested to indicate to ADB those parts of the loan agreement and other related legal documents that they desire to remain confidential. Legal documents involving parties other than ADB can only be released with the agreement of all parties concerned.

Private Sector Operations

19. (a) Constraints on the publication of Project Information: At the pre-appraisal and appraisal stages, the intention of a private sector sponsor, (or client or co-financier) to undertake a project in a particular industry may, in itself, constitute information that could either deter other investors or provoke a response on the part of competitors. After approval of financing for a private sector project by Board of Directors, ADB typically continues to receive detailed financial and operating reports which, again, generally constitute privileged and confidential information. Accordingly, ADB's disclosure policy in the private sector with regard to business information obtained from clients is governed by a number of well-accepted principles, including the need for ADB to take particular care to keep contacts and discussions with prospective clients confidential during the time that ADB is considering an investment proposal in order to protect the legitimate business interests and competitive (and negotiating) position of the client and to limit the harm that could result from ADB's declining to support the proposal. Subsequently, steps are taken to ensure that during the time ADB maintains financial assistance to a company, whether as a lender, guarantor or as a shareholder, information supplied by the client to ADB continues to be treated as Confidential, and information provided by ADB to the public (through further press announcements, ADB's Annual Report or otherwise) is released only with the prior consent of the client.

(b) Specific documents

(i) Project Profile (PP): The PP for a private sector project will be prepared and released prior to consideration by the Board of Directors only after ADB Management has determined that the project is likely to be presented to the Board and the project sponsors have consented to the release. The PP will provide a brief factual summary of the main elements of the project including sponsors, shareholders, total project cost, location, description of the project and its purpose, the environmental category and a brief summary of any environmental issues. The PP will ordinarily be released at least 30 days prior to consideration of the project by the Board. The time period of 30 days may be reduced where the ADB Management so decides and in which case the Board will be informed.

(ii) Every investment proposal for which the PP has been issued will be listed on ADB's website under "ADB Business Opportunities" using information in the PP.

(iii) RRP and legal documents: RRPs and legal documents regarding private sector projects are classified as "Confidential". They may be declassified and released only with the prior consent of the project sponsors, project companies and co-financiers concerned, if any. RRPs for private sector projects that are intended to be declassified and released should exclude any confidential information. Such information should be circulated separately to the Board and will not be released to the public.

(iv) Private Sector Policy and Strategy Papers: Unless classified by Management, private sector policy or strategy papers, once approved by the Board, may be made available to the public on request.

(v) Environment-Related Documents: The summary IEE and EIA reports are required to be circulated worldwide through the depository library system, and are placed on the ADB website. The full EIA or IEE reports are made available to interested parties upon request. The "120 day rule" referred to in paragraph 18(g) above is also applicable to private sector projects.

Other Documents

20. Extracts of ADB's budget are made available to the public. However, the Board document requesting approval of the budget is classified as "Confidential" and not released to the public. Board documents regarding loan service payments and Board documents regarding tranche release of program loans are equally classified as "Confidential" and not released to the public. Financial and administrative policy papers are generally classified as "For Official Use Only". However, they may be classified as "Confidential" if circumstances so warrant. Other documents circulated for the information of the Board such as reports on conferences are generally unclassified.

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1. RRP as used here includes all appendices and supplementary appendices.

Basis: This document should be read with OM Section 52 (BP and OP) and the supporting document cited therein, and document R154-02, Revision 1, Final 1, Environment Policy of the Asian Development Bank (8 November 2002).

27 March 2003
Issued by the Strategy and Policy Department with the approval of the President.