ADB’s Review Process leading up to PCP 2005

1. ADB’s Review Process leading up to PCP 2005 Pending Issues Souparna Lahiri

2. The review process • In July-August 2003 ADB embarked on the process to combine its existing Disclosure Policy and Information Policy to prepare a Public Communication Policy • invitied comments on the first draft of the PCP • organised consultations in Asia, Europe and the USA in 2004 • invited comments on the subsequent second draft of PCP • Board approval formalizing the Public Consultation Policy of ADB 2005.

3. Consultations • 13 country and regional consultations were organized by the ADB • a video conference took place with the groups in Nepal • Consultations were held in Dhaka, Delhi, Bangalore, Beijing, Djakarta, Hanoi, Sumatra-Java, Bishkek • in Ottawa, DC, London, Sydney and Tokyo.

4. Comments & recommendations: a synthesis General • The PCP should ensure an increased role of civil society at all levels of decision-making. • The PCP should be more oriented toward affected people • The draft is narrative rather than directive; • The policy dwells at greater length on constraints than on disclosure • Right to information laws at both national and state levels include features more aggressive than the PCP • South Africa requires that private sector information be made public. • Four Indian states have clear procedures for what to do when information is refused • There are also penalties for the willful destruction of records or noncompliance • Independent appeals are heard. • ADB should look at the freedom of information laws in the Indian State of Maharashtra, Mexico, South Africa, and Queensland (Australia).

5. Information for affected persons • ADB information should be oriented toward the public rather than the stakeholders • Disclose information related to project financing during project implementation. • Define “audience” and “affected groups.” • Affected groups and communities are not included in the list of audiences Research should cater to the needs of affected peoples/groups. • ADB should take responsibility for ensuring that information is provided/should ensure that the borrower governments and private sector discloses/provides information • At project identification, ADB should disclose information about the expected project impact, including appropriation of land, so the public can be real partners in the feasibility study and provide assistance. • The relevance of the project should be discussed at the concept stage.

6. Information needed at project concept stage • Preliminary assessment (including project benefits); • Costs; The following information is needed during preparation: • Study reports; • Environmental Impact Assessment; • RRPs (project appraisal documents); • Who initiated or requested the project; • With whom the project’s appropriateness was discussed; • What alternative options been reviewed (an alternative/independent • assessment should be disclosed); • Project description and objectives; • Budget; • Timeframe for loan repayment; • Project beneficiaries;

7. Contd… • Implementing and executing agencies; • Contractors; • How affected communities are involved in the contract signing (indicating • their representatives); and • Monitoring and evaluation plan (including who developed it). • A communications plan should be provided, with details (date, place, time) of scheduled public consultations. • All planning documents and feasibility studies • A public hearing should be held every 3 months, starting from the concept stage. This should be organized by the local implementing authority.

8. Contd… • Normal government mechanisms and offices should be used to disseminate information and coordinate this dialogue. • Project information centers can be integrated into local government offices. They can display all information and documents related to the project, and provide staff (1/2 day working hours) to disseminate information about the project. • Affected persons should also be given the project’s evaluative reports and asked to supplement them with their own evaluation. • All public consultations should be conducted in the local language, providing information found in the various reports, i.e., a translated executive summary. • Documents should be provided in official and state languages.

9. Two-way dialogue • Continuous dialogue is needed between the government, project implementation agencies, and the stakeholders. ADB needs to use a grassroots approach rather than a “blue print” approach. • Communications should be two-way and interactive; • The PCP should provide for feedback of information from target groups, information gathering, and information processing (using the information to correct/adapt project design). • ADB should be receiving information; the policy fails to address this.

10. Delivery mechanisms • The main mechanism of information dissemination is the Internet. It is also highly Manila-centric. The proactive role of ADB Resident Missions, and their means of dissemination, should be enhanced in the draft. • The Resident Missions should be responsible for addressing information requests in local languages. Language should not be an impediment to requesting information. • It is unclear in the policy what “publicly available” means. Posting documents on a web site is inadequate and does not constitute “publicly available.” • The policy should indicate a mechanism for reaching local media in affected communities and more clearly define the ways in which to reach local communities. • The policy should suit local conditions, being sensitive to local needs and culture. Localized communications mechanisms should be employed. • Insufficient attention is paid to the role of different levels of government in public communications. Include a paragraph describing the roles of local government in explaining project/policies to local communities.

11. Implementation arrangements • Participants indicated that project authorities often pass the responsibility for disseminating information to other authorities. • When persons express a concern or request information, the ADB says to ask the government, or the government says to ask another level of government, etc. • There should be a focal point for project affected persons, a point of contact for regular dialogue with the communities. • There should be a mechanism to ensure that information has been given.

12. Grievance process/Recourse mechanism • The policy should indicate how grievances will be addressed. • PCP should also indicate that persons who feel that they have been harmed as a result of not receiving information can contact the Special Project Facilitator, as part of the Accountability Mechanism. • The PCP should call for an independent monitoring mechanism. Otherwise, problems originate in the beginning but are only evident during implementation

13. Exceptions to presumed disclosure • The policy more tilted to nondisclosure rather than disclosure. • A clear definition of “presumption” should be included. • All other information should be made publicly available except that which is commercially sensitive (e.g., trade secrets) or related to individual privacy or national security. • The paper should specify the criteria for disclosure and non-disclosure. • ADB’s requirements for confidentiality should be in sync with the laws of its member • countries regarding information on private enterprises and individuals. • ADB should be guided by a country’s data protection laws. • Information such as that proposed for the Summary of Project Information (private sector projects) should be disclosed in full because it does not involve privacy. • Many of the policy’s disclosure provisions lack precision, e.g., “when necessary,” “at • the discretion of ADB,” etc. These phrases allow ADB staff to avoid disclosure. • ADB should define “transparency,” “privileged information,” “historical information,” and “contractor.” • The names of companies blacklisted for fraud and corruption should be made publicly available. • If the loan contracts for private sector operations contain environmental or social agreements with the host government, ADB should disclose them (even if the host government does not want to). • Some participants thought the policy should mandate the release of agreements/contracts, e.g., power purchase agreements. • The sponsors themselves should not determine confidentiality.

14. Policy consultation process • The consultation process for the draft PCP is not inclusive enough. People affected by projects have not been included. They should decide what kind of information they need, rather than NGOs. • More advance notice should have been given for the consultation. • Consultations should be held in project areas. That type of feedback would have been far more beneficial to ADB than meeting with NGOs. • Choose a representative sample of communities to give input to the policy. • ADB should seriously consider holding a series of field visits on the next draft. • Representatives from the Parliament, local government (UP chairman and members), affected communities, and ethnic minority groups should have been included. • All participants agreed that public representatives (especially union or municipal level) should have been invited/present at the workshop.

15. Consultation boycott • 8 organisations in the Bangalore consultation walked out of the meeting protesting that the consultation was not representative enough • Project affected and community representatives were not invited

16. Issues still pending… Major omissions in the current PCP • The audience for ADB does not explicitly include the affected people, rather than its operations department has been given the responsibility to maintain contact. Para 48 clearly states: • While it is important for ADB to reach the general public, this strategy does not directly target the public in donor countries or in developing member countries, or the private sector. ADB’s engagement with the general public will remain indirect. • Forms and tools of delivery of information to public at large and the affected people is still not clear in the PCP. The PCP just talks about importance of its resident missions, staff etc and even translation of documents remain at the discretion of the ADB.

17. Pending issues… • ADB policy documents like CSP and RCSP, the PCP states, “shall be made publicly available according to the time period specified, after consultation with the respective borrower or private sector sponsor as appropriate, and subject to the section on exceptions to disclosure (paragraphs 123-130).” • For information to the project affected people, the PCP says that “ADB shall work closely with the borrower or project sponsor to ensure information is provided and feedback on the proposed project design is sought, and that a focal point is designated for regular contact with affected people.” This is ambiguous and does not clearly say whose responsibility is what.

18. Pending issues… • To make available projects documents like EIA, Resettlement Plan and Indigenous Peoples Plan to the affected people is still the responsibility of the borrower governments and the private sector where as ADB will only make these documents publicly available which means in their website. • ADB will only make all other documents which it can disclose publicly available. And that does not include any separate disclosure arrangement for affected communities or public at large. • The PCP is dependent on the ADB website and internet communication. • All the so called business related and legal information of the projects could be disclosed by the ADB only at the discretion of the borrower governments and the private sector. • The policy clearly states that what is publicly available will only be sent or disclosed to those who will request for information. Which also means that there is no distinction between proactive disclosure/voluntary disclosure/mandatory disclosure and those informations which could be accessed by the public at large. • Therefore, ADB will be responsible only for disclosure of those information which is there on their website.