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A list of FOI cases (judicial review) reported by mainland media in 2008-2009

2010/03/29 1 comment
Governments and their administrative agencies at all levels are to publish by the end of this month their 2009 Annual Reports on the work of Open Government Information (Chinese-style FOI). However, for a more objective and comprehensive assessment of how well the government satisfy the citizens’ rights to information, as well as how effective are the courts at all levels in protecting the right to know under the existing legal framework, in addition to the government reports, more attention should be paid to the FOI suits adjudicated in various regions. Since China has not established an authoritative case report system, there have been great difficulties in collecting cases. Hence I have been collecting over the past two years FOI cases reported by mainland newspapers and news magazines [source here]. The following is a list of the FOI cases reported from the implementation of the OGI Regulation until the the end of 2009. The list is currently only in Chinese. Please refer to my Chinese blog.

不被受理的信息公开诉讼

  1. [2009.06]律师李刚诉上海市政府不公开政府官员公费上EMBA信息(不予受理)
  2. [2009.05]宁波村民诉鄞州国土分局不如实公开调查非法占用土地结果信息(一审败诉)
  3. [2009.05]律师严义明诉国家发改委不公开四万亿经济刺激计划详细信息(不受理)
  4. [2009.02]律师孙农诉珠海市环保局不公开废旧电池回收处理相关信息(二审裁定驳回起诉)
  5. [2009.05]市民孔某诉上海市虹口区房管局不公开拆迁补偿结果(不受理)
  6. [2009.02]市民孔某诉上海市市政工程管理处不公开拆迁补偿结果(驳回起诉)
  7. [2008.08] 市民张积年诉建设部不公开经租房文件(逾期未获受理)
  8. [2008.07]市民陈育华诉北京市公安局要求公开养犬管理费用信息案(不受理)
  9. [2008.07]市民朱福祥诉国家审计署不公开北京市土地净收益违规使用情况等信息(逾期未获受理)
  10. [2008.06]律师李刚诉审计署不公开18省市收费公路建设运营管理审计调查详细内容
  11. [2008.06]法律学者郝劲松诉请陕西省林业局公开”华南虎照”鉴定信息(不受理)
  12. [2008.06]市民徐某诉安徽省安庆市枞阳县公路运输管理所不公开颁发机动车驾驶培训学校许可的相关材料(不予受理)
  13. [2008.06]市民朱福祥、湛江诉北京市海淀区四季青镇政府不公开用地规划及人口数等信息(不予受理)
  14. [2008]高立英诉海淀区四季青镇政府不公开该镇下属柴家坟村南占地单位、建设项目的名称以及土地转让的方式
  15. [2008.06]村民张建秋邓六人诉茶陵县财政局不公开专门资金账户中向平水镇毛坪村下拨救济款物的具体数额(逾期未获受理)
  16. [2008.06] 倪洪涛等6名法学博士诉湘潭市政府不公开市内四座大桥收费信息
  17. [2008.05]市民黄由俭等诉湖南汝城县政府不公开县自来水公司改制信息案(逾期未获受理)

生效的经实体审理的信息公开诉讼

  1. [2009]村民诉江苏省宿迁市泗阳县政府不公开土地征收公告及安置补偿公告(败诉)
  2. [2009.11]市民夏楚辉诉佛山市物价局不公开公交票价收费批准文件(败诉)
  3. [2009.10]农民黄建新诉苏州市环保局不公开张家港合兴污水厂的《环境影响报告书》(撤诉,但疑所获资料为假)
  4. [2009.07] 市民周某诉武汉市新洲区某局不答复养老保险金等信息公开申请(胜诉)
  5. [2009.07]村民张某诉山东省广饶县广饶镇不公开两村拆迁安置方案和补偿款分配情况(胜诉)
  6. [2009.07]市民孔某诉上海市建交委不公开拆迁补偿结果(败诉)
  7. [2009.06] 市民王清同时诉南阳市34个行政机关不公开“三公”信息(胜诉)
  8. [2009.06]“职业打假人”徐大江诉广州市工商局不公开行政处罚信息(二审败诉)
  9. [2009.05]市民李栋诉沈阳市规划和国土资源局不公开建设用地规划许可证制作的正确时间(二审胜诉)
  10. [2009.05] 綦江县林业综合开发有限公司诉綦江县国土资源和房屋管理局不公开原告所述林地周边土地的建设规划和征地信息(胜诉)
  11. [2009.03] 退休市民李某诉重庆市人保局不公开工龄计算相关政策文件(胜诉)
  12. [2009.03] 市民马某诉孝感市云梦县国土局不公开土地登记程序和收费标准(被告庭审中提供信息,原告撤诉)
  13. [2009.03]市民屈松峰诉郑州市物价局不公开经济适用房价格核算信息(二审败诉)
  14. [2009.03]市民孔某诉上海市虹口区房管局不公开拆迁补偿结果(败诉)
  15. [2009.03]村民李某诉昌平区北七家镇政府不公开拆迁补偿协议、拆迁法律依据和补偿标准(二审部分胜诉)
  16. [2009.02]农民王某诉保定市国土资源局不公开养猪场的土地占有性质信息(胜诉)
  17. [2009.02]村民小组诉株洲市攸县国土局不公开土地使用权证(败诉)
  18. [2009]市民赵某诉上海市规划和国土资源管理局不公开《建设用地规划许可证》原件复印件(二审败诉)
  19. [2009]律师赵旭峰诉温州市平阳县公安局不公开道路交通限速标志决策信息(二审败诉)
  20. [2009]XX诉上海市环保局不公开宝钢集团噪声和粉尘污染环境影响评价报告书
  21. [2008.12]市民刘阳诉沈阳市铁西新区政府不答复信息公开申请(胜诉)
  22. [2008.10]退休职工吴启群等诉杭州市政府不公开信访纪要(胜诉)
  23. [2008.10]赵正军诉郑州市物价局不公开郑州市热力总公司近三年的经营状况(胜诉)
  24. [2008.09] 村民谷焕斌等诉鹿泉市铜冶镇政府不公开土地规划及宅基地使用审核信息(胜诉,但被告拒不履行判决)
  25. [2008.09]市民杨某诉四川省广安市广安区国税局不公开送达征税定额通知单信息(二审败诉)
  26. [2008.08]市民赵正军诉中原区工商局不公开2007年以来行政处罚决定书(胜诉)
  27. [2008.08]农民刘天岭诉郑州市金山区政府拒绝公开拆迁安置补偿信息(二审败诉)
  28. [2008.08] 市民王清诉南阳市房管局、国土局、规划局和建委不公开楼盘登记备案信息(胜诉)
  29. [2008.07]高考考生诉河南省招生办不公开高考试卷信息(胜诉)
  30. [2008.07]市民乔某诉深圳市司法局未公开应其请求调查公证机关不当行政的结果(败诉)
  31. [2008.07]农民谢某诉许昌市发改委不公开生猪养殖信息(被告庭审中提供信息,原告撤诉)
  32. [2008.06]村民周某诉如皋市建设局不公开拆迁许可证(被告庭审中提供信息,原告撤诉)
  33. [2008.06]律师徐建国诉黄州区交通局要求公开摩托车养路费信息案(胜诉)
  34. [2008.05]市民李某诉江苏泰州市某镇政府不公开处置资产的批复文件(胜诉)
  35. [2008.04]律师王某诉河北省产权交易中心不公开涉案公司产权交易情况(胜诉)
  36. [2008]狮头染料公司诉上海市科委不公开有关“上海市高新技术企业”的认定程序及相关材料(胜诉)
  37. [2008]市民孙某诉重庆市建委不公开某房地产公司缴纳的某建设项目配套费详细情况(二审败诉)
  38. [2008]市民诉辽宁省凌源市某街道办事处不公开申请人的低保信息(被告庭审中提供信息,原告撤诉)

上诉进行中的信息公开诉讼

  1. [2009.07]王翠棉诉石家庄市工商局不公开公司登记档案资料(一审部分胜诉)
  2. [2009.06]佛山拆迁户诉禅城区国土局不公开被拆迁土地的使用权出让底价的计算依据、方法和原始数据(一审败诉)
  3. [2008.07]律师袁裕来诉安徽省政府要求公开行政复议所涉及信息案(一审败诉)

被报道但未知结案情况的信息公开诉讼

  1. [2009.11]市民李某等诉杭州市规划局不公开保护历史建筑及所居建筑规划变动信息
  2. [2009.07]律师刘潇虎诉国家药监局不公开获医疗器械生产许可企业名单、审批程序以及人体对烤瓷牙所含重金属的耐受标准
  3. [2009.07] 市民施仁兴诉上海市松江区住房保障和房屋管理局不公产权资料
  4. [2009.06]律师董正伟诉质检总局不公开对“微软黑屏”投诉的调查处理情况并提供虚假信息
  5. [2009.06]下岗职工刘桂兰诉阜阳市颍泉区人民政府不公开阜阳市酿造厂改制过程中包括土地出让金、职工安置方案、职工住宅拆迁补偿标准等信息
  6. [2009.05]市民张涛诉福建省通信管理局不公开省内各基础电信业务经营者的月租成本
  7. [2009.05]律师刘潇虎诉北京市卫生局不公开关于医院等在为用人单位入职体检中不得检查乙肝表面抗原的相关规定
  8. [2009.05]北京燕运龙客运服务中心诉北京市房山区人民政府燕山办事处不公开所测算的客流量数据以及票款补贴的相关依据
  9. [2009.04]律师李劲松诉北京市司法局不公开“三公”花费情况及行政行为依据
  10. [2009.01]舜华律师事务所诉广州市建设和市政局不公开工程缴费信息
  11. [2008.12]市民刘道户等诉山东省聊城市交通局不公开主观企业的破产清算报告和处置相关资产的审计情况
  12. [2008.12]前长阳土家族自治县地税局职工诉宜昌市夷陵区国土资源局不公开宜昌地税局别墅群地块的土地审批依据、程序、用地性质等信息
  13. [2008.11]市民兰靖远等诉海淀区四季青镇政府要求公开集体土地占用相关信息(不予受理)
  14. [2008.11]市民谢某诉许昌市公路管理局拒绝公开某国道收费站相关信息
  15. [2008.08]村民沈某等诉浙江省桐乡市国土资源局不公开某临时用地批准文件
  16. [2008.07]市民肖均佑诉铁道部不公开T231次列车北京西至保定乘车区间有座票和无座票的具体价格依据
  17. [2008.07]某广告公司诉荆州市户外广告营运管理处不公开城区户外广告的设置权证期限和处置意见
  18. [2008.07]万多名村民诉陕西省彬县城关镇不公开水帘洞煤炭有限公司股权转让信息
  19. [2008.06]市民曹顺礼诉重庆市忠县社会保险局拒绝公开个人退休工资档案
  20. [2008.05]市民金女士诉北京市东城区房管局拒绝公开房产档案
An analysis of the cases can be found in my earlier post (also in Chinese, sorry). For sources and information of the listed cases, please use mycustomized search engines with their sources limited to several kinds of mainland or oversea media. If anybody needs further information  on the comparison and statistical data of the listed cases, please feel free to contact me.
Categories: 1.Legal Review, China

Curtain rose yet uncertainess remains: FOI Regulation came into force

On 1st May 2008 finally came into force China?s ?Regulation on the disclosure of government information?, after more than 12 months? preparation.

It is a long-awaited and exciting date for most FOI-advocates as well as common people in great need of government information closely related to their vital interest. From this moment on, with the curtain raised and the stage set, the mechanism of transparency operates, bringing the government under public supervision of its determination to keep the promise.

The regulation undoubtedly seeks to reorient a bulky bureaucracy ruling vast territory and huge population to open its information for inspection. The task is no doubt arduous in terms of workload, given the weary history of secretive governance, and complex in terms of organizational transformation, given the rigidness of bureaucratic apparatus. Clear about the difficulty, the General Office of the State Council, the organ legally responsible to oversee the nationwide operation of the regulation, issued pointed directions to local governments emphasizing the establishment of tunnels for information dissemination and organs in charge of implementation. After the ?Notice of Good Preparation for the Implementation of the Regulation [?]? circulated on 4 August 2007, it issued ?Opinions on Issues concerning the application of the Regulation [?]? on 30 April 2008, which implies policy priority and deserves further study.

Since the promulgation of the Regulation, departments or bureaux under the central government, as well as local governments, have taken steps in passing new legal norms and amending existing provisions to promote transparency. By now, 6 central organs have issued or revised departmental measurements on implementing information disclosure (Ministry of Commerce, State Power Regulatory Commission, State Administration of Environmental Protection, General Administration of Customs, State Administration of Intellectual Property, State Administration of Taxation). 11 provincial-level government have issued local rules on government openness (Liaoning, Heilongjiang, Shanghai, Fujian, Henan, Hubei, Hainan, Guangxi, Chongqing, Sichuan, Shaanxi) and the people?s congress of Guangdong province enacted similar legislation. More than 40 municipal-level governments promulgated rules of the same kind.

Alongside with the rules exclusively dedicated to government openness, various laws prescribe disclosure requirements as well, such as the Administrative Licensing Act 2003 and Prevention and Treatment of Infectious Diseases Act 2004. A subsequently passed law in August 2007, the Emergency Response Act 2007, also literally expands the citizen and the press? right of access to information about government?s measures during the time of emergency.

The State Council is also preparing to resolve the immediate conflicts brought by old laws on new rules. It is said that the Archive Act 1996 is under review, as a respond to the wide critics of its over-lengthy period of shielding archived government information.

In view of the constructing of supportive normative environment in favor of information disclosure, China has formulated a new transparency regime, notwithstanding the absence of a general FOI law and the remaining conflicts between pro-secrecy norms and pro-transparency requirements. It could be reasonably expected that the new regime will evolve into a higher level along with the continuous review and amendment of laws

The regime is not an easy breakthrough, Undoubtedly, it will have a far-reaching political and legal impact through empowering the citizens with a legal right to know. However, doubts remain: how well could this new born mechanism work in a relatively inactive public law system? It may take considerable time before for prudent observers to explore whether the Regulation act as a window transparent enough to allow public scrutiny of government apparatus or, virtually, just as a window shutter that simply permits public inspection from limited aspects and the range of vision is easily controlled by officials. If the absence of high-ranked norms and shortage of data concerning legal implementation has impeded the comprehensive study of China?s FOI regime in the past, it is opportune, from now on, to review the legal structure of FOI provisions and evaluate their effectiveness in guaranteeing the ATI right. (To be continued)

Categories: 1.Legal Review, China

What factors in the politico-administrative structure influence Chinese agencies? compliance with disclosure laws?

2008/01/12 1 comment

Given that broad latitude for interpretation is built in the transparency legislations, and that judicial remedy system has not formulated effective legal standards to guide and supervise the latitude, the scope of accessible information is virtually determined by the administrators literally bound by the provisions. As a consequence of the long-standing culture of government secrecy, government agencies treat the information held by them as generally secret and exceptionally accessible to the citizenry, which implies that the information can only be disclosed when the law or regulation explicitly so authorizes and should be sealed when the legal norms keep silence on any disclosure .

This phenomenon could be explained, to some extent, by classical scholarship about bureaucracy. Sociologist Max Webber warned that ?[e]very bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret? (Webber 1946). Political scientist Altshuler noted that ?people in government fear nothing than newsworthy failure? (Altshuler 1997). Administrative scientists have pointed out that internal administrative rules and practices have more influence on staffs of the authority than legal norms do (Feldman 2003).

Therefore, in order to better understand administrators? behaviours concerning information disclosure, attention should be paid to the internal transparency-related policies in the administrative system, and the mechanism of the system that determines the incentives of its staffs.

However, in view of China?s one-party-ruling regime, the administrative organization functions under the omnipresent control of Chinese Communist Party. Therefore, the focus of study should be the ?institution? of politico-administrative system that ?have developed sufficient regularity and perceived importance to shape the behaviours of their members? (Lieberthal 2004). In other words, the search for factors affecting OGI rule enforcement entails the review of the internal policies and functioning of the party-led bureaucracy.

For example, the determination of highest leaders in CPC and central government could explain the wide spread of ?open administrative affairs (OAA)? campaign and its correlation with the rise of ?open government information (OGI)? legislation tide, especially the major force supporting it [1]. And the persistence of their policy stand will substantially affect the intensity of OGI legislation enforcement.

Besides, the problem of segmentation, a unique character of China?s bureaucratic system, will also affect the attitude of agencies with different competence. There are barriers between the governance of departments and regions. Given the vast territory and diverse interest among regions, policies that for the goodness of whole state are carried out and supervised by authorities directly under the State Council and not those subordinated to local governments. The administration seeking to regulate infractions will encounter obstacles from local administration when the behaviour regulated is deemed to profitable to local economic. The typical case is environmental regulation. It helps to explain why environmental protection authorities are more willing to disclose information that are otherwise embarrassing to governments ? it hope to diminish the obstacles created by local government to the policy enforcement of the departmental authority.

To conceptualize the conditions for the growth of public law rights in China, professor Xia Yong has built up an theoretical model (Xia 2004). The model tackles the affecting elements on the part of public power, which can serve as a base for the discussion of this part . And the factors will be studied from two perspectives:

Structural perspective
? Weak public record system
? Ideological concern and central control of information flow
? Interweave of secrecy agency and other administrative agencies

Micro behavioural perspective
? Instrumentalist position in promoting government openness
? Incentive and strategy of administrators
? Incentive and strategy of judges

Biblio:

Webber, M. (1946). Essays in Sociology. New York, Oxford University Press

Altshuler, A. A. (1997). Bureaucratic Innovation, Democratic Accountability, and Political Incentives. Innovation in American government: challenges, opportunities, and dilemmas. A. A. Altshuler and R. D. Behn. Washington, D.C., Brookings Institution Press: 39

Feldman, D. (2003). The limits of law: can laws regulate public administration? Handbook of public administration B. G. Peters and J. Pierre. London; Thousand Oaks, Calif. , Sage Publications

Lieberthal, K. (2004). Governing China : from revolution through reform. New York, W. W. Norton


[1] In March 2005, the Communist Party of China and the State Council jointly issued an important document that established as national policy the principle that all information relating to administration and public services should be disclosed unless exempted as a state secret, commercial secret, or private information. This policy document further endorsed continued local experimentation with local legislation and called for the drafting of national regulations on open government information to ?legalize? open information systems by creating enforceable rights and obligations.

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Values of transparency as normative basis for open government

The value of transparency serves as legitimate basis of constructing open government. But the value is not uncontested.

 

Professor Heald and Hood tried to establish the “ontology” of the transparency, describing its historical developments and various dimensions. In the aid of this framework, they distinguished 3 schools of viewpoints towards the value of transparency in literatures. The first school thinks it as good in itself irrespective of other benefits or costs. This absolutist view is restated in legal theory that access to government information is a universal human right regardless of structural and cultural divergence in countries (Birkinshaw 2006). The second school argues that transparency values only in so far as it helps society achieve more fundamental values (Heald 2006). This instrumentalist idea could lead to that transparency right is a proxy of other more critical rights, like right of the person or the property. But “precisely what is instrumental for what, particularly in the functioning of complex public organizations, is much easier to assert than to prove”. The third school is an eclectic one which recognizes intrinsic value in transparency yet trades it off at the margin of other equally important values with which it may come into conflict. But “the difficult question is to identify exactly what those trade-offs are and what are the mechanisms or qualities that distinguish valuable transparency from more negative forms. The values against which transparency has to be traded off are often left implicit”. And the balance “may be time- and place- specific rather than universal.

 

Out of the summary of Professor Heald and Hood, transparency gains support from political scientists. Professor Beetham demonstrated the necessity of transparency and its correlation with accountability of bureaucracy when he created the comprehensive theoretical framework of bureaucracy. (Beetham 1996). The theory of participatory democracy confirmed that for an effective participatory democracy the transparency of different authorities is necessary (Pateman 1970). Transparency is also regarded as a way to enhance government efficiency as well as effectiveness by new public management theories (Goodin and Klingemann 1996). In Chinese scholarship, transparency is recognized as a vital means to realize political development (Hu 2005). It is also considered indispensable for underpinning the growing citizen participation in public administration in China today (Li 2004).

 

Biblio:

Birkinshaw, P. (2006). “Freedom of information and openness: Fundamental human rights?”Administrative Law Review 58(1): 177-218 Heald, D. (2006). Transparency as an Instrumental Value. Transparency : the key to bettergovernance? C. Hood and D. Heald, Oxford ; New York. Published for the British Academy by OxfordUniversity Press

Beetham, D. (1996). Bureaucracy. Buckingham, Open University Press

 

Pateman, C. (1970). Participation and democratic theory. Cambridge [Eng.], University Press

 

Goodin, R. E. and H.-D. Klingemann, Eds. (1996). A New handbook of political science. Oxford, Oxford University Press

 

Li, T. (2004). 现代公共行政中的公民参与. Beijing Shi, Jing ji guan li chu ban she

 

Hu, X. (2005). 政务公开与政治发展研究. 北京, 中国经济出版社

Categories: 1.Legal Review

Distinguish key terms

In the scholarship that pertains to legal institution of open government, a variety of terms have been utilized. Close to each other in meaning, they contain distinct significances that need differentiation.  

Freedom of Information (FOI): More than a negative freedom, it involves a presumptive right ascribed to individuals of access to information held by public authorities. Usually it is used interchangeably with “access to information” (ATI).  

Right to Know:It signifies that the public, especially the media, can legitimately claim to acquire information from the government for effective public scrutiny of government’s functioning, and the satisfaction of this right is prerequisite for a genuine democracy. The term is more employed to express the democratic idea than to refer to a legally enforceable right. 

Government Openness: It goes beyond access to documents in requiring opening up the processes and meetings of public authorities. But it is also claimed by governments as a means of providing access to information under nonlegally binding codes that do not create right, thus avoiding the creation of enforceable legal obligation (Birkinshaw 2006) 

Transparency:Though similar to openness, transparency extends beyond openness in that lawmaking and the public administration should be made as accessible and comprehensible as possible. If openness means allowing public observation, transparency further requires simplifying the information provided so that external receptors are capable of understanding it. (Hood, Heald et al. 2006)

Biblio:

Birkinshaw, P. (2006). “Freedom of information and openness: Fundamental human rights?” Administrative Law Review 58(1): 177-218

Hood, C., D. Heald, et al., Eds. (2006). Transparency : the key to better governance? Oxford ; New York, Published for the British Academy by Oxford University Press

Categories: 1.Legal Review

China finally approaches freedom of information jurisdiction

–Decree on release of government information passed on 24 April  

The State Council, China’s cabinet, announced on 24 April a long-waited regulation which empowers citizens to access to government information and explicitly requires government departments to be more open in information disclosures to boost official transparency. Premier Wen Jiabao promulgated this administrative regulation named “The Decree of Government Information Openness”(政府信息公开条例), which will take effect since 1 May 2008. Within the Chinese legal system, administrative regulation issued by the State Council is of general applicability, only subordinate to the constitution and the laws passed by the National People’s Congress. And it virtually acts as law in the absence of a law governing a given domain, which has been usually the case during China’s gradual legal reform of public law. In this regard, the Regulation could be seen as a “milestone” in establishing a new regime of citizen’s right of access to government information, given the obstinate culture of secrecy in this ancient country and the persisting behavioural pattern of the bureaucracy in concealing any information that may embarrass the government.

The scope of the Regulation

The regulation applies to governments and their departments at all levels. Government information is defined as information that administrative organs generates or acquires during the process of performing their competence, which precludes the information grasped by the legislative and judicial branch. The content of the Regulation covers the range of government information, release methods and procedure, disputes resolution and performance supervision. Governments are required to take the initiative in releasing information “affects the immediate interests of individuals and groups” or which “ought to be wildly known and demands public participation”. Information subject to this category labelled as “proactive dissemination” includes, inter alia, government’s plan for handling emergencies, government spending, specific fees for public services and results of investigations into environmental protection, public health and food safety. The regulation specifies that local governments are to publicize data on land acquisitions, residence relocations and related compensation. Village authorities will have to publicize information on land use, financial accounting, the operation of rural collective enterprises and the family situations of village residents in order to ensure the fair enforcement of the family planning policy. Officials are bound to effectuate the release within 20 working days after the relevant information generated or altered. Administrative organs at all levels are required to compile information directories, that will include the name, address, telephone numbers and e-mail addresses of departments and people who are responsible for releasing official information.

The regulation also stipulates the ”release on demand” which grants the citizens the right to seek information that has been not included in official announcements through a written inquiry. Upon receiving the inquiry, the administrative staff should respond immediately or within 30 days at the latest. However, the regulation also set wide exemption of information from disclosure without clearly defining the scope and condition of the exemptions. Administrative bodies are prohibited to release information that involves “state secrets, confidential commercial information and individual’s privacy”. Information of the last two categories could be released after the consent of the relevant right holder. And individuals who believe their interests have been harmed by the release of confidential information can sue for compensation.

Each administrative organ is ordered to publicize an annual report over its performance of government information openness before 31 March every year. Government departments will be checked regularly to see whether they are withholding information and the public is encouraged to report information blackouts. In case the government fails to carry out its obligations defined by the regulation, officials responsible should be punished if the violations are “serious”. Nevertheless, it did not stipulate the condition and procedure of such penalties except stipulating that serious offenders could be prosecuted.

One giant leap for institutional reform, yet a small step towards public expectation

Once the Regulation comes into effect, the government transparency will no longer be a “favor” from the government, as it has been during the tentative campaign of “boosting the openness of government administrative affairs”(政务公开)led by the State Council and CPC since 2002, but a duty and statutory obligation whose implementation can be overseen by courts. By compared to many earlier local legislations concerning access to government information, the Regulation bears several features. Firstly, it introduced a more extensive scheme of publication. Governments shall not only disclose their working basis, procedures and results of administrative process, as they did, but also release all the information in their possession subject to legitimate exemptions. Moreover, enterprises and public institutions with functions of administrating public service are also to release the information generated or acquired during the provision of such public service, by referring to the Regulation. Hence public schools, public hospitals and corporation of electricity, gas, heat and public traffic will also enter the radius of citizen’s access right. Secondly, the Regulation introduces a partial test of public interest that the government could still release the information concerning commercial confidentiality or individual privacy, without consent of the right holder, if it deems “withholding the information would gravely injure the public interest”. According to the chief director of the legislative department of the State Council which presided the drafting of the Regulation, information regarding major economic crimes, business fraud and sex offences are examples of cases where the public interest out weights the protection of individual privacy. Notwithstanding the institutional break-through towards administrative transparency, the progress embedded in the Regulation is far less than what the advocates of freedom of information and academics have been expecting for.

The major leap hole is the catch-all wording of exemptions which will inevitably be relied on by bureaucrats to “legalize” their withholding of the formation that should have been legitimately disseminated. The Regulation did not clarify at all what constitutes state secrecy but mechanically referred to the vaguely worded Guarding State Secrecy Act. On the contrary, it vigorously added that information release shall not “endanger the security of the state, the public and the economic or cause social stability”(Art 8), that before any release administrative body should perform scrutiny according to relevant law and regulations on guarding state secrecy, and shall consult competent superior bodies or secrecy guarding authorities when in doubt (Art 14). Therefore the default setting in the government is blockade rather than release of the information that may only slightly involves state secrecy or public security. It actually reverses the principle already asserted by various local legislations that “disclosure is the principle and withholding the exception”. Public interest test is completed absent within this context, which countervails any sparkling innovation of such test in other categories of exemptions. Officials in charge of information disclosure hardly find inducement for proactive disclosure but will be sufficiently motivated for inaction, since the Regulation explicitly installs responsibility for officials who “releases information that should not have been released”(Art 35), which is a strange repetition of clauses available in secrecy laws for a Regulation alleged to arouse bureaucracy’s awareness of administrative transparency. It is reasonable for the public to worry that the Regulation therefore creates chances for government officials to reserve and control information rather than encourage them to make it in public.

It is also disappointing that the Regulation dismisses the idea of introducing independent supervisory authority over the performance of government openness which is elaborated and recommended in the expert’s draft presented by the academics. Common experience from the jurisdictions having freedom of information laws shows that government officials costumed with the culture of secrecy tend to misapply the exemption clauses and ultimately threaten the implementation of FOI laws. Therefore it is essential to control the application of exemptions via review bodies to ensure a largest access right to information for the public. By compare to the court proceedings, independent authorities, such as information commissioner or committee provides more accessible, economic and professional remedy to the information requesters. Unfortunately the Regulation refuses to install a review body exclusively dedicated to monitoring regulation implementation and remedying access right. Now the general office of State Council is responsible for overseeing the overall enforcement of the Regulation, while governments at lower levels can either take their general office or assign other body as competent authority in charge of the supervision. The supervisory department at various levels also participate in the monitoring. While the former is a secretary organ of the government, the latter is a department directed by the government with insufficient independency. Even they may boost the enforcement of the Regulation, they do so in a traditional manner as they carry out other routine duties. Such supervisors share with administrative bodies common position in information disclosure policies, which effectively prevents their impartiality in reviewing the public interest test applied by the supervised and other decisions of “not release”. To the citizen whose information right is denied by the administrative organ, the Regulation simply restated the remedy approaches available in current system: seeking hierarchical review from a superior body, bringing administrative litigation before the court or complaint to supervisory department for punishment of certain officials. Given the inherent resistance against transparency from the bureaucracy as an interest community, it is hard to justify the effectiveness of internal remedy of access right. And considering that governments previously won all cases (though the number is very limited) concerning right of citizen to government information granted by local legislation, citizens may not expect the judges would shortly change their over cautious and conservative attitude towards the protection of freedom of information.

An outcome of bottom-to-up legislation and a starting point for broader civic campaign

The Regulation was a crystal indeed of a difficult confinement. A task force was set up in 1999 within the Chinese Academy of Social Sciences to study legislation on release of government information, and in 2000 it was committed by the Information Office of State Council to draft an administrative regulation rather than an act. The draft was deliberated with adequate reference to current legal framework, transforming the freedom of information system into a more Chinese-style “Government Information Openness” (OGI) institution. Notwithstanding its efficient submission early in 2002 and unanimous calls from the society for government transparency after the SARS event in 2003, the draft seems to have encountered great obstruction and stayed upon the secondary legislative plan of State Council for as long as 3 years. In early 2006, the draft ascended into the approved legislative agenda and was claimed to be publicized by the end of 2006. Yet it was not until January this year that the bill was internally approved by the State Council. The regulation’s aim of demystifying government information has been ironically contrasted by its mysterious drafting process. Unlike English people who actively reflected their views on the Freedom of Information Bill and vividly saw the government’s response as well as the parliamentary debates during the whole legislative process, Chinese citizens take no part in the drafting process of the Regulation, nor do they even know the content of it, except for learning from central news agency in every year the “probable” promulgation of it then encountering an unaccounted postpone. While the central government mulls about national regulation, the flexible procedure of various kinds of local legislation put the local governments in a more advantaged position to institutionalize the right to know. The Guangzhou government, aiming to comply with WTO requirements and to gain from enhanced transparency greater administrative efficiencies, bravely took the lead in formulating the first government information disclosure legislation. Taking effect from the beginning of 2003, this unprecedented local rule not only standardized municipal government information openness practice and, but also introduced revolutionary regime of information rights for citizens, and set up fundamental principles of presumption of openness which raises the standards for compliance. Inspired by the Guangzhou example and the lessons in SARS, the Shanghai people’s government adopted the first rule of release of government information on provincial level in 2004, developing a more sophisticated approach to enlarge citizen’s right of access to information and better organized program to supervise the implementation. These two pioneers stimulate their colleagues in other regions. Similar to the global legislative tide of freedom of information, a domestic legislative wave involved most local governments, even many of the organs of the central government. The Shanghai provisions were especially duplicated in other regional rules with moderate modifications. Up till now, 31 provinces, autonomous regions and municipalities and 36 departments of the State Council have formulated rules for the release of administrative information. 7 provinces have actually developed local laws to govern this. In the absent of unified coordination, the scattered lawmaking converge into an ongoing bottom-to-top movement, which in turn stimulate and the legislation in central level.

Therefore, the Regulation is far from a completion of this legislative campaign rewriting profoundly the nature of Chinese’s right to know. In contrast, it is a starting point of a tougher task to device a coherent regime embracing broader information rights. Compared to other jurisdiction, the one-year preparation term to mobilize all administrative bodies to adapt to the Regulation is an ambitious project. It could be understood as including the intention of present a more liberal international image in the run-up to the 2008 Beijing Olympics. However, the obstruction within the tradition administration system, from resource to personnel, cannot be underestimated if the central government wishes a genuine and effective enforcement of transparency rules. What’s more worrying is that the instrumental value of the Regulation in strengthens central control of local authorities may well prevail over the intrinsic value of access right of citizen for non-surveillance cause. In the press conference of the Regulation, chief drafter from the Legislative Office emphasized the right of access to government information as a move to “improve administrative efficiency and prevent abuses of power”, considering it “help curb corruption at its source, largely reducing its occurrence”. This reason is well illustrated by the requirements over local governments to publicize certain information, as described above. Those kinds of information closely correlate to the stealthy dealings infringing common people’s fundamental rights that involve many local authorities and arouse social unrest. Yet this approach may end up a centralized control and scrutiny of all information. And the information which is requested for profit earning or other private purpose may be deemed as vexatious and legally shielded under the broad exemptions emplaced by the Regulation. Furthermore, the clauses more favourable to citizen’s access right in local rules, such as those of Shanghai and Guangzhou may run in contrast with the conservative provision of the Regulation. The hierarchical primacy of administrative regulation over local rules will possibly sacrifice these progressive norms during the harmonization of central-local legislation bloc may sacrifice. In this regard, the Regulation beats its own aim at encouraging more release of government information. Last but not lease, the Regulation does not, not surprisingly, encourage civic campaign for more government transparency. Long excluded from the regime construction of access right, civil society should grasp the opportunity of preparation period of this Regulation in expressing their critics and comments for better performance. Individuals should vigorously make full use of the more liberal norms in local legislation to seek government information. Though disfavoured by officials and authorities, academics and lawyers should take the responsibility in learning from the strategies of the NGOs in other FOI jurisdictions and in bringing testing cases before the courts claiming more extensive access rights. The regulations do not define the boundary of access and retention in the favour of citizens, but at least they provide a context in which people can set out their arguments. How well the rule will be in protecting freedom of information is ultimately dependent on how serious the citizens regard their rights to know, and how intent they strive for it. This rings especially true for Chinese people.

Categories: 1.Legal Review, China