The following case studies are examples of good practices that were observed and detailed in, Protecting the Cornerstone: Assessing the Governance of Extractive Industries Transparency Initiative Multi-Stakeholder Groups, published in February 2015.
These case studies describe good practices regarding policies for transparency of multi-stakeholder group (“MSG”) meetings, documentation, and membership lists, observed in the Philippines and the United States. These cases are in the report in Box 1, on page 14 of the Report.
Good Practices for Transparency within National EITI Processes (from “Box 1: Varying Levels of Transparency within National EITI Processes”)
Due to a lack of expectations set in the EITI Rules (2007) or EITI Standard (2013), each country has adopted its own practices for the level of confidentiality for MSG activities. Box 1 (page 14 of the Report) outlines some examples of the range of practices, from the excessively confidential practices of Azerbaijan and Nigeria, to the more transparent good practices of the Philippines and United States.
The Philippines: Establishing a Balanced Presumption of Transparency
The Philippines EITI (PH-EITI) has established a clear presumption of transparency of MSG information. Title III, Article II-§1 of the Internal Rules states that the files of PHEITI are “open and accessible to the public” as a general rule, subject to four exceptions [FN 51]:
- Material containing business secrets or other material that “for competition reasons are important to keep secret in the interests of the person whom the information concerns”;
- Personal information relating to the MSG or secretariat, such as employment performance reviews;
- Documents revealing information received from a third party where disclosure of the material would harm the legitimate interests of that third party, such as personal security or personal privacy; or,
- PH-EITI internal documents, such as emails between MSG members. By comparison, minutes of the MSG and working groups are not internal documents.
Although the EITI process is relatively new in the Philippines compared to the other countries profiled, this tailored approach appears to be working well for all MSG members.[FN 51: Philippine Extractive Industries Transparency Initiative (PH-EITI), Internal Rules for the Philippine Extractive Industries Transparency Initiative (PH-EITI), Title III, Article II-§1.]
THE UNITED STATES: RIGOROUS TRANSPARENCY UNDER FEDERAL “SUNSHINE ACT”
[Material Update – February 26, 2015: USEITI MSG members have confirmed that early concerns described in the Report have been avoided, and on-the-record working group and MSG meetings have been the primary venues for all deliberations. Working groups have held public meetings unless members requested that discussions be held confidentially, and in all instances working group meeting minutes have been posted publicly to the USEITI website detailing the deliberations.]
In the United States, federal “sunshine” laws require all committees formed under the Federal Advisory Committee Act (FACA) of 1972 [FN 52], such as the USEITI MSG, to be transparent and open unless specific exemptions allow confidentiality [FN 53]. There are ten exemptions, including: where disclosure would constitute a breach of personal privacy, or reveal commercial information that is privileged or confidential [FN 54]. To comply with these legal requirements MSG meetings are required to be publicly announced at least 15 days in advance, indicating the time, location and agenda for the meeting, and must be held on-the-record and explicitly open to the public to attend in person or by phone; working group meetings are open to the public unless a stakeholder member presents a legitimate policy reason that they should be closed; and, meeting minutes for MSG and working group meetings are published on the USEITI website. MSG meetings even include dedicated time in the agenda for public comment that can be made in-person, by phone, or by email (which is then read aloud at the meeting for entry into the public record).
In interviews with MSG members, industry and civil society representatives noted that the intense transparency of MSG meetings forces much of the more difficult debate and negotiation over substantive EITI issues to occur outside of public MSG processes. According to these representatives, it is common for controversial topics to be deliberated off the record – either in private among MSG members, or in confidential working group sessions – to allow members to share openly and find a resolution. By the time the issue is presented at public MSG or working group meetings, stakeholders have generally reached an agreement on how to proceed, or clarified their positions to present any disagreement in mutually accepted terms for the public record.
[FN 52: Public Law 92-463, 86 Stat. 770 (Oct. 6, 1972), §1.] [FN 53: Government in the Sunshine Act, Public Law 94-409, 90 Stat. 1241 (Sept. 13, 1976).] [FN 54: Title 5, United States Code §552b(c).]