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Transparency and confidentiality

The Procedural Guidance for the Guidelines stipulates that one of the core criteria with which NCPs must handle complaints is transparency. NCPs should ensure that the parties can engage in the specific instance process on fair and equitable terms by providing access to information relevant to the procedure. At the same time, NCPs should be aware of the need to protect sensitive business and other stakeholder information, such as the identity of individuals involved in the case. How to navigate the fine line between transparency and confidentiality in Guidelines cases can present a dilemma for complainants. What should complainants expect from NCPs, and how should complainants themselves behave in terms of communicating information about the company/case?

This box provides some guidance, structured according to the phase in the complaint process:

  • Phase 1: At the time of filing and during the initial assessment
  • Phase 2: After the case has been accepted and while the case is pending
  • Phase 3: After the case has been concluded

Phase 1: At the time of filing and during the initial assessment

The general rule for this phase is transparency. Prior to filing a complaint, NGOs are of course free to communicate whatever they want about the company and case. OECD Watch advises NGOs to always assess the risks (e.g reprisals from the company including (violent) threats or a legal challenge) before making allegations about a company. Some NGOs have chosen to issue a press release upon filing their complaint with the NCP and to publicize the case while the NCP is conducting the initial assessment. While this is an acceptable strategy that can raise awareness about the issues in the complaint and increase pressure on the company to resolve the problems, NGOs should be aware that such public campaigning may reduce the likelihood that the company in question is willing to engage with the complainant and the NCP, and thus could reduce the chances for a successful outcome to the specific instance process. That said, more publicity could also have the effect of encouraging the company to engage in the process in order to quickly and genuinely solve the problem. NGOs should weigh these two strategic considerations and decide which strategy is more likely to result in a resolution of the issue in question. Some of the best-performing NCPs make the outcome of the initial assessment public on their website, and NGOs are also encouraged to do so if appropriate.

Phase 2: After the case has been accepted and while the case is pending

During this phase, which can include mediation and other exchanges between the parties, fact finding by the NCP, and the drafting of a final agreement or statement. the general rule is transparency of process, but confidentiality of content. The Procedural Guidance is clear that NCPs should seek to keep sensitive information confidential once the initial assessment has been concluded and the case has been accepted. During the entire time that the specific instance is being handled by the NCP, complainants should not publicly disclose information, including correspondence, documentation or opinions that are learned or exchanged during the process. Complainants should make clear their commitment not to publicize information exchanged during the processes. This will assist NCPs in encouraging both parties to be as open and transparent within the process as possible. Complainants should also make it clear to NCPs that it is not acceptable for the NCP to base decisions on information supplied by the company that has not also been made available to the complainants.

Committing not to disclose information exchanged during the process does not mean that complainants cannot continue campaigning against the company (based on publicly-available information) while the process is on-going. However, it may be more strategic for complainants to stop campaigning while the process is pending to allow the NCP to do its work and increase chances for success at the NCP. In this sense, campaigning during mediation may be counterproductive. OECD Watch believes it is acceptable for complaints to communicate publicly about purely procedural aspects/events in specific instance processes. Such procedural aspects include whether or not the company responds to the allegations (though not the content of the company’s response), whether meetings between the parties are being organized or have taken place (though not the content of the meetings), and if mediation has begun/ended. As long as it does not conflict with the agreed need to protect information exchanged by the parties, transparency on these objective, procedural elements of a case is crucial to maintain the legitimacy and effectiveness of the Guidelines. It is for this reason that OECD Watch maintains a database of cases filed by NGOs (www.oecdwatch.org/cases) and publishes a ‘Quarterly Case Update’ with procedural elements of pending and recently concluded cases filed by NGOs (http://oecdwatch.org/publications-en/quarterly-case-updates).

Complainants should be aware that some NCPs have taken to the practice of requiring complainants to agree to strict confidentiality and threatening to dismiss the complaint if complainants communicate anything publicly about it. This may reflect the NCP’s weakness vis-à-vis a company and indicate that the case has little chance of a fair hearing. Or it may be that the substance of the case is very sensitive. This is beyond the guidance NCPs have received from the OECD. If faced with this, complainants are advised to make it clear they have a responsibility to report back to their members, community, stakeholders on the process and outcome, while not disclosing sensitive information exchanged. In some cases, an arrangement involving strict confidentiality agreements may be acceptable to NGOs provided the NCP adheres to the time-frame and acts with scrupulous fairness. Complainants are advised to check on the position on confidentiality/transparency taken by NCPs prior to filing a complaint. 

Phase 3: After the case has been concluded

The general rule for this phase is transparency. At the conclusion of a case, the Procedural Guidance instructs NCPs to make the results of the process publicly available in a public report or statement, taking into account the need to protect sensitive information. Outcomes should always be transparent unless it can be argued that not publicizing the outcome would be in the best interest of effective implementation of the Guidelines. Complainants are free to communicate about the outcome and process of the case, keeping in mind the need to respect the confidentiality of sensitive information exchanged during the process.

In some countries and jurisdictions, the NCP operates under legislation that gives the public the right to access to all correspondence between the NCP and the parties, with the exception of those parts of documents that contain commercial secrets (this is a narrower concept than the concept of ‘confidential information’. For example a report from a manager to headquarters about workers' conditions or the operation of government security forces would by many be regarded as confidential information, but is not a commercial secret in the technical sense of the term).

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