The OECD Guidelines require National Contact Points (NCPs) to handle complaints in a transparent manner: NCPs should enable access to information and public awareness about cases. However, NCPs must also protect sensitive information such as the identity of individuals involved in a case.
What should complainants expect from NCPs? How can complainants themselves navigate the fine line between transparency and confidentiality?
- OECD Watch believes all parties should keep the following information confidential:
- The identity of individuals involved in a case,
- The contents of discussions and correspondence during the initial assessment and good offices stages, and
- Business information that is truly sensitive.
- OECD Watch believes NGOs can continue campaigning during a complaint and still respect appropriate NCP rules on confidentiality.
- Some believe that public campaigning during a complaint may reduce a company’s willingness to engage in the NCP process.
- However, in the experience of OECD Watch, campaigning can also correct a power imbalance against complainants, by incentivizing the company to engage to protect its reputation.
NGOs should decide which strategy is more likely to result in a positive resolution of the issue in question.
Unfortunately, some NCPs see campaigning during a complaint as a breach of confidentiality or good faith, and may dismiss a complaint if complainants communicate anything publicly about it. This is beyond the guidance NCPs have received from the OECD.
Ultimately, the complainant must decide whether and how to proceed with a complaint and campaign in light of transparency or confidentiality requirements.
- In some cases, a strict confidentiality agreement may benefit a complainant, provided the NCP adheres to the time frame and acts with scrupulous fairness.
- In others, a complainant must continue to report to its members, the community, other stakeholders, and the public about the complaint process and outcome.
- Prior to filing a complaint, no rules govern communication by complainants about a situation, company, or potential NCP complaint.
- Regarding communication on a situation or company, follow your group’s or NGO’s internal operating procedures.
- Regarding communication on a potential NCP complaint, OECD Watch encourages commonsense confidentiality: it is probably not wise to communicate widely about a complaint until it is filed.
At the time of filing, the general rule is transparency, but a few considerations apply:
- Check the position of the relevant NCP on confidentiality and transparency before filing to see what constraints may apply. Consider discussing with the NCP any concerns or requests you have.
- Some NGOs choose to issue a press release upon filing their complaint to raise public awareness. This may or may not cause concern to the particular NCP to which you are filing.
- Some NCPs do not want parties to publish the complaint text at all, or without certain redactions of information.
- After the case has been filed, the general rule is transparency of process but confidentiality of content during the initial assessment and good offices stages. During the entire time the specific instance is being handled by the NCP:
- Complainants should commit not to publicly disclose information – including correspondence, documentation, or opinions – that is learned or exchanged during the process. This will help NCPs encourage both parties to engage fully and openly in the process.
- Complainants may publicly disclose information about purely procedural aspects of the case, such as 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.
OECD Watch supports the practice of most NCPs to publish the outcome of the initial assessment on their website. NGOs are also encouraged to publish the initial assessment statement if appropriate.
- The general rule during publication of the final statement and follow-up is transparency of process and outcomes, but confidentiality of the content of discussions and correspondence, and of any other matters agreed to be kept confidential. The Procedural Guidance instructs NCPs to publish the results of the complaint process in a public report or statement. Complainants may also communicate about the outcome and process of the case, while respecting the confidentiality of information exchanged during the process. At the final statement stage, complainants should make clear to NCPs that it is not acceptable for the NCP to base a final decision on information supplied by the company that has not also been made available to the complainants.