8 December 2003
Nam Theun 2 Project Manager at the World Bank, refusing access to critical project documents
December 23, 2002
Dear Ms. Imhof,
Thank you for your letter addressed to Mr. Shivakumar and dated December 3, 2002 which arrived by email. I am pleased to respond to your letter.
We welcome your acknowledgement of the World Bank's commitment to the development of understanding and support for the proposed Nam Theun 2 project among all stakeholders. We share your desire to improve the lives of the people of the Lao PDR through sustainable development, for which the sharing of information is essential.
You have requested that we provide you with copies of the Concession Agreement between the Lao PDR and the Nam Theun 2 Power Company as well as the Power Purchase Agreement. As you know, our recently revised Policy on Disclosure of Information ("Disclosure Policy") reaffirms our recognition and endorsement of the fundamental importance of transparency and accountability to the development process. In fact, the Policy states that "[e]xperience has demonstrated that consultation and sharing of information with cofinanciers, partners, and groups and individuals with relevant knowledge of development issues help to enhance the quality of Bank-financed operations" (Disclosure Policy, para. 3).
Nonetheless, the Policy also recognizes that there are instances that require some departure from complete openness (Disclosure Policy, para. 82). Thus, where documents and information are provided to the Bank on the explicit or implied understanding that they will not be disclosed outside the Bank, or that they may not be disclosed without the consent of the source, "the Bank must treat such information accordingly" (Disclosure Policy, para. 84). In accordance with the Disclosure Policy, the Bank does not make publicly available documents that contain proprietary information without the express permission of the owner of such information.
This constraint on the Bank's ability to make proprietary agreements public, such as the Concession Agreement or the Power Purchase Agreement, was addressed in the recent Inspection Panel's Report and Findings on the Uganda Third Power Project, the Power IV Project and the Bujagali Hydropower Project (Bujagali Panel Report). One of the disclosure issues raised by the Requestors concerned the disclosure of the Power Purchase Agreement. You may be aware that the Requestors claimed that the Power Purchase Agreement should be a public document because of the involvement of the International Development Association in the Project in the form of a Partial Risk Guarantee. Management stated that it was not opposed to the disclosure of this document, but had no authority to release it, inasmuch as the Power Purchase Agreement is a proprietary agreement and that IDA is not at liberty to disclose it without the agreement of the signatories (Bujagali Panel Report, para. 90). The Inspection Panel found that "there is no specific requirement that the PPA be disclosed" and that "Management's actions have been consistent with IDA's Disclosure Policy" (Bujugali Panel Report, para. 91).
We are, therefore, unable to provide you with the proprietary documents you seek due to our lack of authority to release such information, under the requirements of our Disclosure Policy as affirmed in the Bujagali Panel Report. You may wish to contact the developers and the Lao PDR Government for these documents.
The logging mission report, however, is being prepared for publication. We expect it to be posted on the government's website for the Lao PDR in the near future and to be available to IRN and to the public at large at the same time.
On the subject of disclosure, let me add that the widely shared concern for transparency in dealing with critical project issues is the reason why the websites of the project and the Lao government provide substantial public access to information and documents about the NT2 project. It is also why we have posted information on our development work with the Lao Government on our own website. We believe it is the government's intention to continue to add information and documents as they become available - such as the logging mission report - so that all public parties can have equal access to the relevant information.
Concerning the World Commission on Dams (WCD) priorities and guidelines, you are familiar with the Bank's official response to the WCD Report, World Bank Position on the Report of the World Commission on Dams which can be found on the Bank's external website - www.worldbank.org/water. That response states that while the World Bank shares the WCD core values and concurs with the need to promote the seven strategic priorities, it distinguishes carefully ? as does the WCD Report ? between the seven strategic priorities and the twenty-six guidelines. As the IRN is aware, being a member of the Dams and Development Project (DDP) Steering Committee, this approach was later adopted by the DDP.
I would like to thank you and your organization for your continued interest in the project and look forward to a continuing dialogue with you on these issues. With kind regards and best wishes for the holiday season.
Sincerely yours,
Robert Anton Mertz
NT2 Project Manager
Robert Anton Mertz
MC-9-429
Tel. +1-202-473-2603
Fax +1-202-522-1648