Archive

Archive for the ‘2.Methodology’ Category

Map of FOI cases and laws added

Technorati Profile

With the help of some Web2.0 service, I’ve made visualized the evolution of FOI law-making in China since 2003. The development of FOI disputes after the FOI Regulation came into effect is also sketched out on a map.

Please refer to the newly added pages “Map of FOI laws” and “Map of FOI cases“.

Categories: China, Map

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.

buy cialisbuy cialisbuy levitrabuy levitrabuy propeciabuy propeciabuy somabuy somabuy levitrabuy cialisbuy propeciabuy levitrabuy somabuy cialisbuy propeciabuy levitrabuy somabuy cialisbuy levitrabuy propeciabuy soma

Understand right of access to information through Hohfeld’s conceptual framework

Hohfeld’s delicate analytical scheme of right can shed light on the legal nature and façades of the right of access to information.

Hohfeld’s established that rights embrace four types of legal relation involving 8 key elements. Very often, statements about rights draw on more than one of the four relations identified. (Hohfeld 1923)
(1) A right is a liberty: a person has a liberty to X means that he has no obligation not to X.
(2) A right is a right ‘strictly speaking’ or a claim right: a person has a right to X means others have a duty to him in respect of X.
(3) A right is a power, that is, the capacity to change legal relations connected with X and others are liable to have their position altered. (For example, a policeman obtains a power-right to enter my home, when he gets a warrant.)
(4) A right is an immunity that is the absence of the liability to have the legal position altered with regards to X.
The relation between the right-holder and other persons differs in the four cases.
Table 1  Hohfeld’s theoretical model of rights: 8 key elements

 hohfeldian_framework_1.JPG

In the light of Hohfeld’s model, the ATI right can be decomposed into 3 relations between the citizens, as the right-holder, and the government agencies, as the duty-bearer or other counterpart of the right-holder.

Table 2  Hohfeld-style model of ATI right

hohfeldian_framework_2.JPG 

Therefore, the right of access through request is identified as a claim-right. Claim-right being regarded as the most important kind of rights, the right of access through request would be the centre of FOI laws. And the exemption clauses are considered as giving grounds for agencies’ immunity from the liability to disseminate information.

A right-centred analytical framework of FOI rules, which will apply to the comparison and analysis of pro-transparency rules as well as anti-transparency norms mentioned above.

1. Right-holder
2. Duty-bearer
3. Content of the right (activity of the duty-bearer, manner, term)
4. Object of the right (information that is accessible)
5. Condition of the right:
a) Immunity advanced by duty-bearer: absolute exemption
b) Administrative discretion in the qualified exemption
c) Treatment of conflicts among laws and the duties thereby imposed
d) Justifying ground of the right (moral or political foundation of the right, legislative intention)
6. Composing elements of infringement and relative defence
7. Approach of access to remedy
8. Liability and compensation

Biblo:
Hohfeld, W. N. (2001). Fundamental legal conceptions as applied in judicial reasoning. Aldershot, Ashgate

Categories: 2.Methodology

Redesign analytical framework of the right of access to information

Traditional analytical framework of FOI regime centres on the process of information disclosure, which is often the main line of FOI law in numerous countries. It mainly includes the scope of the information to be released, the ways of dissemination, the categories of information exempt as well as the balancing conditions, and remedies.

The process of Access to Information

foi_request_handling.JPG

Yet it is more advantageous to observe and understand the disclosure system through the structure of the “access right”. On the one hand, from an analytical prospect, the process-centred framework will be entangled with complex confused standards and sometimes trivial procedural issues. Adopting the right-centred approach makes it easier to learn how much room the regime gives to access right, especially to its enforcement. It is pertinent in a sense that OGI rules – the Chinese-style FOI law – emphasize proactive dissemination rather than disclosure through request, but do not articulate whether the procative publication can be the object of a claimable right. On the other hand, the right of access to information (ATI) is the core of all mature FOI rules (Ackerman 2006), and the spirit of freedom of information lies in the access right, although it can only be ultimately realized through the act of disclosure by administrative agencies. From a normative stand, the right to information is so fundamental in strengthening democratic regime manifested by Chinese constitution that any restriction on it should be legitimized. Observing information disclosure law from a right-centred way can accentuate the significance of the access right. When deciding the legality of agencies’ disclosure act, right-centred position can facilitate the reference to the approach of reviewing government interference adopted in international jurisprudence of human rights . This approach could implement the traditional approach of Chinese administrative law which is concentrated on the legality of administrative acts.

Biblio:
Ackerman, J. M. (2006). “The global explosion of freedom of information laws.” Administrative Law Review 58(1): 85-130

Categories: 2.Methodology

Hypothesis about the effect of formal transparency measurements, including FOI legislations

Transparency has to be attained through institutional arrangements. According to the attitudes presented in scholarship towards the relation between transparency measurements, such as FOI legislation, and the transparency as the aims of these measures, there are hypothesis that could be divided into 2 positions, 4 groups (Hood and Heald 2006).

The hypothesis in positive position claims that formal measurements, especially FOI legislations, are conventionally claimed as a means of producing new culture of openness in government organization and increasing public trust in government”. (McDonald 2006)

There are also negative hypothesis. The futility thesis thinks formal policy measurement and legal norms are nugatory to situation of transparency (Roberts 2006). They could be ignored. Bureaucrats can make compensating adjustments to make them ineffective. Or they may only serve to circumvent the professed interest of FOI laws. The jeopardy thesis contents that, while achieving some objectives, transparency norms will undermine other important values and goals, at least in some circumstances, such as reducing trust and integrity within organizations, or increasing likelihood of deadlock and a lower quality of deliberative debate (Stasavage 2006). The perversity thesis feels that policy measures such as transparency law can achieve the very opposite of their intended goals and not only merely null effects or undesired side-effects. It would mean that citizens would end up knowing less rather than more as a result of the introduction of transparent provisions[1] .


[1] The legislation of Zimbabwe, ostensibly about freedom of information, actually aims at reducing freedom of press.

Biblio:

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

McDonald, A. (2006). What hope for freedom of information in the UK? Transparency : the key to better governance? C. Hood and D. Heald. Oxford ; New York, Published for the British Academy by Oxford University Press

Roberts, A. (2006). Blacked out: Government secrecy in the information age. New York, Cambridge University Press

Stasavage, D. (2006). Does transparency make a difference? The example of the European Council of Ministers. Transparency : the key to better governance? C. Hood and D. Heald. Oxford ; New York, Published for the British Academy by Oxford University Press

Categories: 2.Methodology