Coordinating an attack on secrecy

Putting the IFF agenda into action at the country level. Part 6 of 9

Suitable coordination goals to advance the anti-illicit financial flows agenda include structured and open communication practices, a common agenda, and an independent secretariat. Photo: Tomás Fano CC BY-SA 2.0

Illicit financial flows (IFF) became an international concern in the late 2000s and are now an established policy concern in the development context. Still, policy makers have yet to address important questions about putting anti-IFF programmes into practice. This sixth blog post discusses the relationship between coordination, strategy and policy coherence to advance the IFF agenda. It offers a range of new practical policy proposals and considers alternatives to meet the coordination needs at international level to remove secrecy — a central problem for coordination at international level.

Other posts in this series

  1. IFF definitions–crucial questions
  2. IFF: What losses for international development?
  3. IFF and country level legitimacy
  4. The blind spots in anti-IFF strategies
  5. Strategies for effective anti-IFF efforts
  6. This post: Coordinating an attack on secrecy
  7. Rethinking policies to remove secrecy
  8. Expanding the role of corruption in IFF
  9. Country-level IFF research for counter-IFF support

Fredrik Eriksson is a lawyer with extensive experience from private sector research, policy analysis, evaluations, strategy development, and consultancy work — mostly on anti-corruption and governance issues. He leads the U4 Innovation Lab and private sector research.


Policy coherence at national and international levels

Policy coordination at the national level is inextricably linked to policy coherence. A policy strategy is coherent if it is carefully considered and the different policies that constitute it relate to each other in a clear and reasonable way (see The blind spots in anti-IFF strategies). The fundamental starting point for coherence is the conceptual definition or a policy goal. Policy coherence occurs when different government departments and agencies promote policies that mutually reinforce each other. Logically, this creates synergies in achieving overall objectives.

An anti-IFF strategy should aim for freedom in choosing an implementation approach for reaching specific common goals.

Subsequently, policy coherence depends on a strategy that identifies different options for different contexts in a carefully considered, clear and reasonable way. In other words, an anti-IFF strategy should not aim for one-size-fits-all policies, but for freedom in choosing an implementation approach for reaching specific common goals. Such policy coherence is important, not only at the national level, but also between the national and international levels –whether on a global or regional scale.

Coherence among national level policies

The goal of a national level anti-IFF strategy may be to prevent IFF. But what is the specific anti-IFF coherence goal at national level? Is it only a matter of making sure other policies do not undermine the cocktail of policies forming part of the anti-IFF strategy? Or does it concern something more? The IFF policy literature is not clear (see The blind spots in anti-IFF strategies). Making the effort to define the anti-IFF coherence goal will immediately reveal what policy areas are concerned. It will also inform the degree of involvement and coordination that can be expected given the status of coherence and available measures.

At a minimum, policy makers from coordinating agencies should aim to create common anti-IFF coherence goals.

One could imagine a strong anti-IFF strategy that reinforces other government programmes and is itself reinforced by those other programmes. But this can only occur if the government coordinates the strategy across relevant agencies. This may be an unachievable ideal in some countries. At a minimum, policy makers from coordinating agencies should at least aim to create common anti-IFF coherence goals if they wish to effectively address the problem. To that regard, there is a lot to learn from the emerging research and practice on addressing systemic problems (Williams et al.; Hummelbrunner and Williams; Kania and Kramer).

National and international coherence

Domestic policies, governance qualities and dynamics can either facilitate or avert IFF (see Strategies for effective anti-IFF efforts). Furthermore, IFF often involve private sector actors like corporate service providers (financial institutions, auditors, lawyers, tax advisors, etc.) that contribute to enabling IFF, both at the domestic level and abroad. Given the fact that IFF cross borders by definition, both domestic and international mechanisms are part of solving the problem of IFF (Herkenrath).

Coherence can only happen when policymakers/governments are coordinated.

For example, some companies engage in so called base erosion and profit shifting (BEPS) practices to avoid paying taxes by shifting their profits to countries with more favorable tax regulations (OECD). Under the Inclusive Framework on BEPS, countries are now banding together to coordinate their efforts to fight BEPS. Creating coherence in international policies against this practice reinforces country-level efforts to fight tax evasion and similar activities bordering to IFF (see previous post The definitions of IFF). But as suggested above, that coherence can only happen when policy makers/governments are coordinated, which makes coordination instrumental to policy and strategy coherence.

Facilitating coherence through coordination goals

To account for the diversity of circumstances nationally and internationally, and the fact that there are many possible actors who can coordinate (not lead) policy and strategy development processes, establishing coordination goals is helpful. A consequence of realising the systemic nature of IFF is also the need to involve a diverse range of stakeholders at both the national and international level to define such coordination goals (see Strategies for effective anti-IFF efforts and IFF and country level legitimacy). To make various parties work together in an organised way, inspiration for relevant coordination goals can be found in approaches to resolve systemic problems (Kania and Kramer). Based on such experiences, suitable coordination goals to further advance the agenda are:

  • Establishing communication practices with frequent and structured open communication that builds trust and assures mutual objectives.
  • Achieving a common agenda with a shared understanding of the problem and a joint approach to solving the problem.
  • Establishing a secretariat with independent and funded staff providing support in terms of a) guiding the achievement and adherence to a common agenda, b) mobilise resources to facilitate participation and needed activities to progress, c) facilitate communication, and d) facilitate cooperation and compromises throughout the policy and strategy coherence development process.

Beyond the arguments of tradition, capacity, and convening power there are no apparent reasons why coordination of this type of process has to be coordinated by traditional international cooperation mechanisms, or by governments alone. Government-led horizontal coordination of government departments is a notoriously difficult task in developed and developing countries alike. External independent coordination can be an option that defuses tensions due to turfs and relative status within government or between international actors.

Coordination goals may help speed up national or international action to achieve better policy and strategy coherence.

Establishing coordination goals may help speed up national or international action to achieve better policy and strategy coherence, energised by strongly motivated and knowledgeable actors. Once defined, funders of anti-IFF measures may find it a worthwhile effort to realise those coordination goals. As previous posts in this series have suggested, the instrumentality of coordination to advance coherent anti-IFF strategies and policies is a clear gap in current anti-IFF policies. At country level, it is a tall and costly order but nevertheless important to achieve progress.

Local versus international anti-IFF efforts

When the local context makes anti-IFF efforts politically impossible, policy makers often assume IFF can be fought at the international level instead. However, that is not always the case. As an example, countering harmful secrecy in certain countries may simply move the problem to another locale (Johannesen and Zucman), ie countries that keep secrecy receive more inflows of funds.

The issue of IFF is more than a “one-country problem.” It is a collective action problem among nations and other actors with an influence on the systems that maintain the problem. To overcome such problems, commitment and coordinated collective action (among many other factors) are needed to help overcome the reasons for inaction in resolving it (Marquette and Peiffer, Ostrom).

To achieve commitment, persuasion alone may be insufficient depending on the motivation or reason for maintaining it.

But to arrive at that commitment, there are a few prerequisites. Consider the issue of secrecy. As suggested, some nations may benefit (at the expense of other nations) from facilitating inflows of IFF (see What losses for development?). If so-called “secrecy jurisdictions” refuse to adopt transparency measures, other countries will have difficulties countering IFF. To achieve that commitment, persuasion alone may be insufficient depending on the motivation or reason for maintaining it (Affolder and Ford; Braithwaite; Hufbauer and Oegg; Kaempfer and Lowenberg).

The political and economic interests and their linkages will determine whether change efforts will work.

The global commitment to transparency

Secrecy abounds, even in developed nations (Tax Justice Network), despite the global commitments to the FATF Recommendations aiming to protect the international financial system from misuse. The FATF standard is not legally binding under international law. However, it is referred to as being followed by most FATF member states, some 180 countries. It contains several Recommendations for countries to remove secrecy:

Recommendation 9 prohibits secrecy laws for financial institutions to inhibit the implementation of the FATF Recommendations.

Recommendation 10 sets out the transparency requirements in customer relationships while prohibiting keeping anonymous accounts or accounts for persons with obviously fictitious identities.

Recommendation 22 expands this requirement for customer due diligence to other services offered by so called designated non-financial businesses and professions.

Recommendation 24 contains further transparency recommendations on beneficial ownership of legal persons, ie companies.

Recommendation 25 contains transparency recommendations on beneficial ownership in “legal arrangements”, including trusts (a legal arrangement in which a person or organisation controls property and/or money for another person or organisation).

Keeping track of promises

Through a process of mutual evaluations by the FATF, its nine FATF-style regional bodies (FSRBs) and other international stakeholders, the FATF identifies jurisdictions with weak measures to combat money laundering (AML) and terrorist financing (CFT). The FATF’s Public Statement, or the “blacklist” identifies (see OECD):

  • Countries or jurisdictions with such serious strategic deficiencies in its implementation of the recommendations that the FATF calls on its members and non-members to apply counter-measures.
  • Countries or jurisdictions with deficiencies in its implementation of the recommendations for which the FATF calls on its members to apply proportionate enhanced due diligence measures.

The FATF Public Statements contain recommendations for counter-measures, as in the case of the Democratic People’s Republic of Korea (DPRK) from 3 November 2017:

“The FATF reaffirms its 25 February 2011 call on its members and urges all jurisdictions to advise their financial institutions to give special attention to business relationships and transactions with the DPRK, including DPRK companies, financial institutions and those acting on their behalf. In addition to enhanced scrutiny, the FATF further calls on its members and urges all jurisdictions to apply effective counter-measures, and targeted financial sanctions in accordance with applicable United Nations Security Council Resolutions, to protect their financial sectors from money laundering, financing of terrorism and WMD proliferation financing (ML/FT/PF) risks emanating from the DPRK. Jurisdictions should take necessary measures to close existing branches, subsidiaries and representative offices of DPRK banks within their territories and terminate correspondent relationships with DPRK banks, where required by relevant [UN Security Council] Resolutions.”

Besides heeding such preventive counter-measures, FATF member states are required to have “effective, proportionate and dissuasive sanctions” to address non-compliance by natural and legal persons in their jurisdictions (Recommendation 35).

The stickiness of secrecy

However, the weak FATF implementation results so far, following a new evaluation approach which seeks to assess the actual implementation of the formally required framework, would indicate a discrepancy between the blacklist and reality. If removal from a blacklist leveraged with economic sanctions has to do with compliance as regards form rather than function, why should we expect substantial implementation where commitment is weak?

It suggests that the economic sanction threat is not credible, mispriced, or that other motivations are stronger (Braithwaite). It may also be compounded by an ineffective methodology for example by being poorly fitted to the capacities of intended implementers (see IFF and country level legitimacy).

This suggests that the FATF framework is too weak to effect change.

This suggests that the FATF framework is too weak to effect change. National political and economic forces inform whether change efforts will work (Khan; Brunnée et al.). Other ways of measuring secrecy, such as the Financial Secrecy Index, expose considerable problems with secrecy in very advanced countries like Switzerland and the United States (Findley et al.). Improving transparency in these nations is not a matter of technical capacity, or having insuffucient financial resources to govern. It is primarily a matter of whether there is a political interest or not. But stopping at such trivial observations offer no way forward. To build a strategy, further explanations of the factors or dynamics that influence the various actors of a ruling coalition and its leadership are required (Brooks; Kirshner).

Incentives to lower the costs of compliance

The more interesting question is therefore how the dominant political and economic interests of a country can be moved towards that political will or commitment (World Bank, 2017). As stated above, this is a coordination problem. However, concerned international stakeholders do not have that many (non-covert) options for chosing means and mode to bring non-cooperative jurisdictions to move towards adherence to greater transparency. Economic sanctions is an instrument for change that often comes with difficulties of precision and for calculating effectiveness (Hufbauer and Oegg; Major). It also requires coordination to have effect, or it will simply be by-passed.

For trade sanctions, the costs imposed on the targeted country depend on how many other countries are willing to continue trading with that country and on the elasticities of the trade offers of those countries (Kaempfer and Lowenberg). The upward price distortions that follow from trade sanctions also give rise to favourable income opportunities for third parties. Trade sanctions may even have the opposite effect (Kaempfer and Lowenberg, p. 876): “…rents [caused by sanctions] might even, perversely, enrich the target country’s own rulers if they are able to participate in the sanctions-busting trade.”

For small and open economies with limited options for economic diversification, secrecy is a factor that works to attract international capital flows.

Lowering the costs of compliance is a different approach to try and influence governance change in other countries. For small and open economies with limited options for economic diversification, secrecy is a factor that works to attract international capital flows (Braun and Weichenrieder; Johannesen and Zucman; Hanlon et al.; Bloningen et al.). In competitive international markets for foreign direct investment (FDI) and private portfolio investments, not all countries can compete with the same attractive factors for various reasons (World Bank, 2018; Carter). However, the question is if an economic inducement could work to remove secrecy. To some, this may resemble bribery but is in fact part of political haggling which helps formulate what is politically possible at specific moments in time (Dahl).

Politics concerns peaceful influencing of the way that a country is governed, while following an agreed process for doing so, which is generally perceived as legitimate by the public. The rules-based process outcome ought to reflect the “best” deal for the public given contextual constraints at the time. In other words, it ought to represent process legitimacy (see IFF and country level legitimacy). Failing that, political accountability ideally applies in democracies.

When material and principled decision-making desiderata are corrupted, the decision-making process is corrupted.

But the decision-making process is corrupted when material and principled decision-making desiderata are corrupted, such as data that support proposals, the choice of methodologies to prove relationships, or the assessed consequences for constitutional rights and obligations (Philp). The same applies when decision-makers themselves are bribed to abandon the collective interests they have been elected to represent. Political process legitimacy cannot follow from that. Consequently, a negotiated deal to abandon secrecy approved according to established processes passes the test for valid law (Hart), and possibly legitimacy (see IFF and country level legitimacy).

The costs of transparency

The example of Georgia’s rapid economic liberalisation, growth and improved control of corruption suggests that the question about the cost of transparency is flawed. In a region characterised by pervasive corruption and secrecy, Georgia found that to be competitive in international trade relations and to attract FDI, administrative transparency and reduced corruption were necessary (Eriksson). Recent research on the preferences of CEOs when choosing jurisdictions for FDI also confirm this (World Bank, 2018). Nevertheless, FDI shopping lists for CEOs do not necessarily represent the whole universe of decision makers behind the direction of global capital flows. FDI is only one category of flows and it should be noted that publicly listed multi-national corporations are under intense scrutiny by their shareholders (with auditors at their disposal), workers unions, regulators, journalists, analysts, NGOs and INGOs, suppliers, and potential investors. The preferences of other actors are therefore very likely to represent a different set of factors, as the research on the effects of tax information exchange agreements show (Braun and Weichenrieder; Johannesen and Zucman; Hanlon et al.; Bloningen et al.). Nor are all preferred FDI factors available as realistic policy options to governments across all contexts. The right to national sovereignty and the opportunities that affords domestic policies is however available: regulations creating secrecy.

A big questionmark is what size of the inducement would be compelling enough to compensate for the costs of abandoning secrecy.

Even if we prefer to use an inducement rather than a sanction to achieve change, there is still the question of quantifying the inducement. What size of the inducement would be compelling enough to compensate for the costs of abandoning an IFF-facilitating factor like secrecy?

Consider a country in which the benefits of secrecy are limited and there is no political dependency on secrecy in order to maintain or access political power. The costs of abandoning secrecy can therefore be expected to be low as primarily non-political actors benefit from secrecy. Reversely, imagine a situation in which a large part of the economy depends on secrecy (including incoming IFF), meaning that tax revenues from VAT, incomes, domestic corporate profits, other capital and a diversity of public service transactions (fees) also largely depend on secrecy. It is clear that the costs of removing secrecy are higher in the latter case than simply compensating for the reduced volume of secrecy-related inflows.

Finding a compensation cost for change

Figuring out a compensation cost for a jurisdiction to abandon secrecy is however not impossible. Recent research on the effects of introducing bilateral tax information exchange agreements (TIEA) on FDI in tax havens show that it can be established (Braun and Weichenrieder). It is possible to expand that research to also look at any monetary transaction changes after the introduction of TIEAs. A country’s balance of payments is the accounting of all monetary transactions between the residents of a nation and the rest of the world. A change to the balance of payments following the introduction of a TIEA could provide a ball park figure of how much secrecy is worth to a nation (provided other influencing factors can be isolated). As the sole purpose of TIEAs is to enhance transparency for tax purposes, it would be a good way to measure the value of secrecy-related capital inflows (Johannesen and Zucman; UNCTAD). It would however not be able to capture the value of other types of secrecy, for instance those that have to do with weak governance, ie implementation-caused secrecy. Where a country’s commitment to TIEAs is perceived as weak, the change to the balance of payments may therefore only reflect those who think that commitment to TIEAs is not weak.

Social impact bonds

Another interesting way to establish a compensation cost is to include it in the total cost for removing it. A way to do that is to use the instrument of social policy/impact bonds (SIBs) (Schiller). Through a coordinated effort, SIBs could be issued and backed by a wide range of organisations, including governments, QUANGOs, philanthropists, social impact investors, development finance institutions, NGOs, private sector corporations or ordinary individuals. The bond’s backers would guarantee to redeem the buyers of the bonds a fixed sum when a specified objective, like the removal of secrecy of certain components in the Financial Secrecy Index, has been achieved. The idea is that the buyers of the bond would have a sufficiently strong incentive to initiate coordinated action to remove secrecy in the most cost effective way possible. The available options for doings so, and the choice of methods used, would not be limited by the many institutional constraints of traditional development institutions.

Using social impact bonds as an incentive or inducement for removing secrecy at a known cost would be possible.

After the initial auction, the eventual market value of the bonds would depend on the market’s view of how easily the objective can be achieved. The lower the price, the more difficult the market perceives the attainment of the objective to be (Horesh). The cost to remove the secrecy problem in a jurisdiction would be the difference between the market price on all outstanding bonds and the total value of the fixed sum to redeem to holders of the bond. As no markets are perfect, the market price will depend on a multitude of factors, such as market actors’ expertise in governance reform, knowledge of the political economy for reform, access and ability to mobilise influential actors, and of their beliefs of the effectiveness of their ideas to address the problem, etc.

Using different mixes of policy measures to address systemic problems have different effects.

Although the jury is still out on whether SIBs can improve the delivery of public services (Edmiston and Nicholls), SIBs can be used to establish the cost and incentives or inducements for removing secrecy. Traditional approaches to policymaking cannot do both although estimates are always possible. Using different mixes of policy measures to address systemic problems have different effects (Rogge and Reichardt). SIBs may very well be an added policy component to help advance a stalled measure like the FATF in removing secrecy. And if no one buys the bonds (also after adjusting the fixed redemption sum upwards), we would know that the market has no belief in the possibility of removing secrecy. For some types of development institutions, it would however come up against institutionalised ways and constraints to approaching governance problems (de Haan and Everest-Phillips; Hout and Shakel).

Next blog post

The next blog post will look at other means to influence change at international and national level, which could further contribute to advance the IFF agenda.


Other posts in this series

  1. IFF definitions–crucial questions
  2. IFF: What losses for international development?
  3. IFF and country level legitimacy
  4. The blind spots in anti-IFF strategies
  5. Strategies for effective anti-IFF efforts
  6. This post: Coordinating an attack on secrecy
  7. Rethinking policies to remove secrecy
  8. Expanding the role of corruption in IFF
  9. Country-level IFF research for counter-IFF support

References

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All views expressed in this post are those of the author(s), and do not necessarily reflect the opinions of the U4 partner agencies, or CMI/U4.