Setting the stage: rise of FOI regime
China has been widely criticized of its formidable secrecy in government and administrative affairs. However, with the deepening of reform since 1978, Chinese people are crying out for an accountable bureaucracy through effective public oversight. With the strong advocates of scholars, the ruling party realized that moderate openness could help to legitimize its rule. From the late 1990s, the central government has introduced a series of tentative “open administration” reform at local levels (Zhou 2003). Subsequently there has emerged a wave of FOI rule-making since 2002 at provincial and municipal level, which was driven by local government’s need to establish their images of openness and to attract foreign investment. Such rule-makings, under the name of “Open Government Information” (OGI) and regarded as a kind of local legislation by virtue of the Legislation Act 2000, impose certain degree of obligation on administrative agencies to disclose a range of information to citizens. By December 2006, 31 provinces and municipals have issued legal provisions on government openness, among which 11 are local regulations enacted by local People’s Congress, and 20 are local rules issued by local governments. Meanwhile, 36 departments or bureaux under the State Council have issued departmental rules or measures on the same subject (Xinhua News Agency, 2006). Partly driven by the obligation under World Trade Organization’s transparency requirements[1], and partly stimulated by the disastrous consequences of information cover-up in the outbreak of SARS, the central government acquiesced in the blooming of local legislations. After 8 years of hesitation, a right of ATI that can be enforced by judiciary was finally vested in citizens by the Regulation of Open Government Information (OGIR) in April 2007[2]. It is an administrative regulation made by the State Council, which has the secondary highest authority in China’s legal hierarchy. Along side with these OGI rules, various laws prescribe disclosure requirements as well, such as the Administrative Licensing Act 2003[3], Prevention and Treatment of Infectious Diseases Act 2004[4]. A subsequently passed law in August, 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. But again, it leaves uncertain exemptions (Xinahua, 2007).
With all these measured steps in legislation, China has formulated a new transparency regime and, in this sense, joined the global FOI community, notwithstanding the absence of a general FOI law. The regime is not an easy breakthrough, given China’s weary history of secretive governance and its rigid bureaucratic apparatus. Undoubtedly, it will have a far-reaching political and legal impact through empowering the citizens with a legal right to know. However, doubts remain: will such legal construction works? Does it act as a window transparent enough to allow public scrutiny of government apparatus? Or virtually, it is no more than 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. The thesis wishes to produce an analytical framework for a comprehensive understanding of China’s FOI regime, and provide empirical data concerning its implication with reference to monitoring methods in other FOI jurisdictions.
[1] Transparency principle is prescribed in the chief treatments that constitute the legal framework of WTO and accepted in the commitment of China in its accession to WTO. See Article 10 of GATT, Article 3 of GATS and Article 63 of TRIPS. The principle mainly requires that the contracting party should regularly and timely publish its policies, laws, regulations, decrees, rules, regulative measures and statistic data concerning the trade as well as the trade-related treaties it has been engaged in, and that the undisclosed internal provisions governing the trades should be reduced to minimum.
[2] Article 33.
[3] Article 5, Article 33 and Article 59.
[4] Article 38.
“The State establishes the system for announcing information on epidemic situation of infectious diseases.
The health administration department under the State Council shall regularly announce information on the national epidemic situation of infectious diseases. Health administration departments under the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall regularly announce information on the epidemic situation of infectious diseases in their own administrative areas.
When an infectious disease breaks out and prevails, the health administration department under the State Council shall be responsible for announcing to the public information on the epidemic situation of the infectious disease, and may authorize the health administration departments under the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government to announce to the public information on the epidemic situation of the infectious disease in their own administrative areas.
Information on epidemic situation of infectious diseases shall be announced without delay and accurately.”
[5] Article 10 and Article 44.
Measures for the Disclosure of Environmental Information (for Trial Implementation)
Promulgation date:04-11-2007
Department:State Administration of Environmental Protection
Effective date:05-01-2008
Subject:Environmental Protection
Order of the State Environmental Protection Administration
(Order No. 35)
The Measures for the Disclosure of Environmental Information (for Trial Implementation), which were adopted at the first utive meeting of 2007 of the State Environmental Protection Administration on February 8, 2007, are hereby promulgated and shall come into force as of May 1, 2008.
Director of the State Environmental Protection Administration Zhou Shengxian
April 11, 2007
Measures for the Disclosure of Environmental Information (for Trial Implementation)
Chapter I General Provisions
Article 1 These Measures are formulated according to the Regulation of the People’s Republic of China on the Disclosure of Government Information, the Law of the People’s Republic of China on Promoting Clean Production, the Decision of the State Council on Fulfilling the Scientific Development View and Strengthening Environmental Protection and other relevant legal provisions for the purpose of promoting and regulating the disclosure of environmental information by environmental protection administrative departments (hereinafter referred to as environmental administrations) and enterprises, maintaining the rights and interests of citizens, legal persons and other organizations to access environmental information, and promoting the participation into environmental protection by the general public.
Article 2 The expression “environmental information” as mentioned in these Measures includes government environmental information and enterprise environmental information.
The expression “government environmental information” refers to the information which is produced or obtained by environmental administrations in their performance of environmental protection responsibilities, and is recorded and kept in a certain form.
The expression “enterprise environmental information” refers to the information that is recorded and kept in a certain form, and is related to the environmental effects arising in the business activities of enterprises and the environmental acts of enterprises.
Article 3 The State Environmental Protection Administration shall be responsible for promoting, guiding, coordinating and supervising the work on the disclosure of environmental information of the whole country.
The environmental administrations of local people’s governments at or above the county level shall be responsible for organizing, coordinating and supervising the work on the disclosure of environmental information of their respective administrative areas.
Article 4 An environmental administration shall follow the principles of equity, fairness, being convenient for people and objectivity, and disclose the government environmental information timely and accurately.
An enterprise shall, in light of the principle of combining voluntary disclosure with mandatory disclosure, disclose its environmental information timely and accurately.
Article 5 Citizens, legal persons and other organizations may apply to environmental administrations for accessing government environmental information.
Article 6 An environmental administration shall establish and improve an environment information the disclosure system.
The State Environmental Protection Administration shall designate its general office as the organizational department for disclosure of its government environmental information, and other functional bodies shall do a good job in the disclosure of government environmental information within their respective functions.
The environmental administration of the local people’s government at or above the county level shall determine the organizational department for the disclosure of its government environmental information in light of the actuality, and such organizational department shall take charge of the organization of the disclosure of government environmental information for its environmental administration.
The organizational department for disclosure of government environmental information in an environmental administration shall assume the following specific responsibilities:
(1) Organizing the formulation of rules, systems and working rules for the disclosure of government environmental information for environmental administration;
(2) Organizing and coordinating the disclosure of government environmental information by other functionary departments in the environmental administration;
(3) Organizing the maintenance and upgrading of the government environmental information disclosed by the environmental administration;
(4) Supervising and checking the disclosure of government environmental information by other functionary departments in the environmental administration;
(5) Organizing the compilation of the guidelines for disclosure of government environmental information, the catalogue on the disclosure of government environmental information and the annual report on the disclosure of government environmental information for the environmental administration;
(6) Supervising and guiding the disclosure of government environmental information by the environmental administrations at lower levels;
(7) Supervising the disclosure of government environmental information by the enterprises within its jurisdiction;
(8) Taking charge of the confidentiality examination before the disclosure of government environmental information; and
(9) Other responsibilities for the disclosure of government environmental information of the environmental administration.
Article 7 No citizen, legal person or other organization may, when utilizing the environmental information as disclosed, damage state interests, public interests or legitimate rights or interests of others.
Article 8 An environmental administration shall guarantee its disclosure of government environmental information in the aspects of personnel and funds, etc.
Article 9 Where it is necessary to obtain the approval for the disclosure of government environmental information according to the relevant provisions of the state, the environmental administration shall not disclose it until it is approved.
Article 10 The disclosure of government environmental information by environmental administrations shall not jeopardize national security, pubic security, economic security or social stability.
Chapter II Disclosure of Government Environmental Information
Section 1 Scope of Disclosure
Article 11 An environmental administration shall voluntarily disclose the following government environmental information to the general public within the scope of its duties:
(1) Laws, regulations, rules, standards and other regulatory documents on environmental protection;
(2) Environmental protection plans;
(3) Environmental quality;
(4) Environmental statistics and environmental survey information;
(5) Prepared emergency plans for, and the forecasting, occurrence and disposal of, unexpected environmental accidents;
(6) Distribution and fulfillment of gross discharging indicators of main pollutants, issuance of pollutant discharging licenses, and quantitative inspection results about comprehensive rectification of urban environment;
(7) Types, amount and disposal of solid wastes in medium and large cities;
(8) The acceptance of environmental impact evaluation documents for construction projects, results about examination and approval of the environmental impact evaluation documents as accepted, completion-based check and acceptance results regarding environmental protection of construction projects, as well as the items, basis, conditions, procedures and results of other environmental protection administrative licensing;
(9) Items, basis, standards and procedures for collection of pollutant discharge fees, amount of pollutant discharge fees that should be paid by pollutant dischargers, amount that has been actually collected, and conditions on reduction, exemption and postponement of pollutant discharge fees;
(10) Items, basis, standards and procedures of environmental protection administrative charges;
(11) Cases concerning complaint letters and visits or tip-offs about environmental issues or enterprise environmental pollution that are filed by the general public and are verified upon investigation, and the results of handling such cases;
(12) Conditions about environmental administrative punishment, administrative reconsideration, administrative lawsuits and implementation of administrative compulsory measures;
(13) Name list of those enterprises which discharge pollutants in excess of national or regional discharging standards or seriously pollute the environment since their respective gross pollutant discharging volume has exceeded the relevant guideposts as verified by the local people’s government;
(14) Name list of those enterprises to which serious or extraordinarily serious environmental pollution accidents or events have occurred, and name list of those enterprises which refuse to implement effective decisions on environmental administrative punishment;
(15) Examination and approval results about environmental protection set-ups;
(16) Structural establishment, duties and contact information of the environmental administration;
(17) Other environmental information that should be disclosed according to any law, administrative regulation or ministerial rule.
The environmental administration shall compile its catalogue on the disclosure of government environmental information within the scope as prescribed in the preceding paragraph.
Article 12 An environmental administration shall establish and improve a confidentiality and examination mechanism for the disclosure of governmental environmental information, and clarify the procedures and duties for such examination.
Before the disclosure of governmental environmental information, an environmental administration shall carry out the examination according to the Law of the People’s Republic of China on Guarding State Secrets, other laws, regulations and the relevant provisions of the state.
No environmental administration may disclose the governmental environmental information which involves any state secret, business secret or personal privacy, however, the governmental environmental information involving business secret or personal privacy may be disclosed if the right holder consents to such disclosure or the environmental administration considers that the public interests will be seriously affected in the case of non-disclosure.
Where an environmental administration is not certain whether the governmental environmental information can be disclosed or not, it shall, according to the pertinent laws, regulations and provisions, give a report to the relevant competent department or the confidentiality department at the same level for decision.
Section 2 Modes and Procedures for Disclosure
Article 13 An environmental administration shall disclose the governmental environmental information within the scope of voluntary disclosure via government websites, gazettes, press conferences, newspapers, radio, television or any other means easily accessible by the general public.
Article 14 With respect to the governmental environmental information within the scope of voluntary disclosure, an environmental administration shall disclose it within 20 working days after such environmental information is formed or changed, unless the time limit for disclosure of governmental environmental information is otherwise prescribed by any law or regulation.
Article 15 An environmental administration shall compile and publicize the guidelines for the disclosure of governmental environmental information and the catalogue on the disclosure of governmental environmental information, and upgrade them in a timely manner.
The guidelines for the disclosure of governmental environmental information shall include the types, compilation system and acquisition method of such information; as well as the name, address, office hours, contact phone, fax and e-mail, etc. of the functionary department for disclosure of governmental environmental information.
The catalogue on the disclosure of governmental environmental information shall include the index, name of the information, general remarks on the contents of information, date of formation, and time of disclosure, etc.
Article 16 Where any citizen, legal person or other organization applies to an environmental administration for the furnishing of governmental environmental information according to Article 5 of these Measures, he or it shall file such an application by letter, fax, e-mail or any other written form; and where it is difficult to do so, the applicant may file an application orally, and the functionary department for disclosure of governmental environmental information in the environmental administration may fill in an application form for disclosure of governmental environmental information on his/its behalf.
An application for disclosure of governmental environmental information shall include the following contents:
(1) Name and contact information of the applicant;
(2) Specific descriptions about the contents of governmental environmental information for which an application for disclosure is filed; and
(3) Request for the form of governmental environmental information for which an application for disclosure is filed.
Article 17 With respect to an application for disclosure of government environmental information, the environmental administration shall give a reply in light of the following circumstances:
(1) If the information for which an application for disclosure is filed falls within the scope of disclosure, the environmental administration shall notify the applicant of the mode and means for accessing such government environmental information;
(2) If the information for which an application for disclosure is filed does not fall within the scope of disclosure, the environmental administration shall notify the applicant that such government environmental information should not be disclosed and simultaneously explain the reasons;
(3) If the government environmental information should not be disclosed by the environmental administration itself or does not exist, the environmental administration shall notify the situation to the applicant; and where the organ for disclosure of such environmental administration could be determined, the environmental administration shall notify the applicant of the name and contact information of such administrative organ; and
(4) If the application is unclear in contents, the environmental administration shall notify the applicant to correct or supplement the application.
Article 18 An environmental administration shall give a reply within 15 working days after receipt of an application; and if it is unable to do so, upon approval of the person in-charge of the functionary department for disclosure of government environmental information, the time limit for reply may be extended. The extension shall be notified to the applicant in written form, and the time limit for reply may be extended for 15 working days to the utmost.
Chapter III Disclosure of Enterprise Environmental Information
Article 19 The state encourages enterprises to voluntarily disclose the following enterprise environmental information:
(1) Environmental protection guidelines, annual environmental protection targets and achievements of the enterprise;
(2) Annual gross resources assumption volume of the enterprise;
(3) Environmental protection investments and environmental technological development of the enterprise;
(4) Types, quantity, density and whereabouts of pollutants discharged by the enterprise;
(5) Construction and operation of environmental protection facilities of the enterprise;
(6) Treatment of wastes produced during the production process, and recycling and comprehensive utilization of waste products of the enterprise;
(7) Agreement on voluntary environmental improvement signed with the environmental administration;
(8) Fulfillment of social responsibilities by the enterprise; and
(9) Other environmental information to be voluntarily disclosed by the enterprise.
Article 20 Those enterprises that have been incorporated into the name list as mentioned in Item (13) of Paragraph 1 of Article 11 of these Measures shall disclose the following information to the general public:
(1) Name, address and legal representative of the enterprise;
(2) Name of the main pollutants, discharging modes, density and gross volume of such pollutants to be discharged, and the pollutants discharged in excess of standards and gross volume;
(3) Conditions about construction and operation of environmental protection facilities of the enterprise; and
(4) Prepared emergency plans for environmental pollution accidents.
No enterprise may refuse to disclose the environmental information as mentioned above under the pretext of business secrets.
Article 21 An enterprise that discloses its environmental information to the general public according to Article 20 of these Measures shall, within 30 days after the environmental administration announces the name list, disclose its environmental information on the local main mass media, and report the environmental information that has been disclosed to the general public to the local environmental administration for archival purpose.
The environmental administration shall have the power to check the environmental information disclosed by enterprises.
Article 22 An enterprise that voluntarily discloses its environmental information according to Article 19 of these Measures may publicize its environmental information to the general public through mass media or the internet, etc., or by publishing its annual environmental reports.
Article 23 For an enterprise which voluntarily discloses its environmental information and acts as an example for complying with environmental laws and regulations, the environmental administration may grant the following awards to it:
(1) Praising it publicly on the local main mass media;
(2) Giving priority to its projects of special environmental protection funds according to the relevant provisions of the state;
(3) Giving priority to the recommendation of its model clean production projects or other modal projects with state subsidies according to the relevant provisions of the state; and
(4) Other awards prescribed by the state.
Chapter IV Supervision and Duties
Article 24 An environmental administration shall establish and improve an examination system, social appraisal system and accountability system for the disclosure of government environmental information, and carry out regular examination and appraisal about the disclosure of government environmental information.
Article 25 An environmental administration shall, prior to March 31 every year, announce its annual report on the disclosure of government environmental information.
An annual report on the disclosure of government environmental information shall include the following contents:
(1) The voluntary disclosure of government environmental information by the environmental administration;
(2) The disclosure of government environmental information by the environmental administration upon application and the conditions about non-disclosure of government environmental information;
(3) Administrative reconsiderations and administrative lawsuits lodged due to the disclosure of government environmental information;
(4) Main problems existing in the disclosure of government environmental information and the conditions about improvement of such problems;
(5) Other matters that need to be addressed.
Article 26 Where any citizen, legal person or other organization considers that an environmental administration fails to perform the obligation of disclosing government environmental information, he or it may tip it off to the environmental administration at the higher level. The environmental administration which has received such a tip-off shall urge the environmental administration at the lower level to perform the obligation of disclosing government environmental information according to law.
Where any citizen, legal person or other organization considers that the specific administrative acts of an environmental administration during the course of disclosing government environmental information have infringed on his or its legitimate rights or interests, he or it may apply for administrative reconsideration or file an administrative lawsuit.
Article 27 Where an environmental administration violates these Measures and is under any of the following circumstances, the environmental administration at the next higher level shall order it to make a correction. Where the circumstances are serious, the principal and other persons held to be directly responsible shall be given administrative sanctions:
(1) Failing to perform the obligation of disclosing government environmental information according to law;
(2) Failing to timely upgrade the contents of government environmental information, the guidelines for the disclosure of government environmental information, or the catalogue on the disclosure of government environmental information;
(3) Unlawfully collecting fees during the course of disclosing government environmental information;
(4) Providing paid government environmental information via any other organization or individual;
(5) Disclosing the government environmental information that should not be disclosed; or
(6) Committing any other act in violation of these Measures.
Article 28 Where an enterprise, which violates Article 20 of these Measures and discharges pollutants in excess of national or regional discharging standards or seriously pollutes the environment since its gross pollutant discharging volume exceeds the relevant guideposts as verified by the local people’s government, fails to disclose the discharge of pollutants or does not make such disclosure as required, the environmental administration of the local people’s government at or above the county level shall impose a fine of less than 100,000 yuan on the enterprise and disclose the relevant conditions on its behalf according to the Law of the People’s Republic of China on Promoting Clean Production.
Chapter V Supplementary Provisions
Article 29 These Measures shall come into force as of May 1, 2008.
Provisions of the People’s Republic of China on the Disclosure of Government Information
Order of the State Council (No.492)
The Provisions of the People’s Republic of China on the Disclosure of Government Information, which were adopted at the 165th utive meeting of the State Council on January 17th, 2007, are hereby promulgated, and shall come into force as of May 1st, 2008.
Premier Wen Jiabao
April 5th, 2007
Provisions of the People’s Republic of China on the Disclosure of Government Information
Chapter I General Rules
Article 1 These Provisions are formulated for the purpose of safeguarding the legal access to government information by citizens, legal persons and other organizations, improving the transparency of government work, promoting the administration according to law and giving full play to the role of government information of serving the people’s production, living and social and economic activities.
Article 2 The term “government information” as mentioned in these Provisions refers to the information produced or acquired and recorded or kept in certain forms by administrative organs in the process of performing their duties.
Article 3 The people’s governments at various levels shall make more efforts in organizing and leading government information disclosure work.
The General Office of the State Council is the competent department of the government information disclosure work of the whole nation and is responsible for promoting, guiding, coordinating and supervising the government information disclosure work of the whole nation.
The general office of the people’s government at or above the county level or any other competent department in charge of government information disclosure work appointed by the people’s government at or above the county level shall be responsible for promoting, guiding, coordinating and supervising the government information disclosure work of this region of administration.
Article 4 The people’s governments at various levels and the departments of the people’s governments at or above the county level shall establish and improve a government information disclosure working system of their respective administrative organ, and appoint an institution (hereinafter referred to as working institution of government information disclosure) to be responsible for the daily work of government information disclosure of their respective administrative organ.
The specific duties of the working institution of government information disclosure of an administrative organ shall be:
(1) Undertaking specific government information disclosure issues of this administrative organ;
(2) Maintaining and updating the government information disclosed by this administrative organ;
(3) Organizing the compilation of this administrative organ’s directory for government information disclosure, catalogue of government information disclosure and annual report on government information disclosure work;
(4) Conducting confidentiality review on the government information to be disclosed;
(5) Other duties related to government information disclosure as prescribed by this administrative organ.
Article 5 An administrative organ shall follow the principles of impartiality, justice and bringing convenience to the people when disclosing government information.
Article 6 An administrative organ shall disclose government information in a timely and accurate manner. Where any administrative organ finds out any false or incomplete information that has affected or may affect social stability or has disturbed or may disturb social management order, it shall disclose the corresponding accurate government information within its scope of duties to clarify.
Article 7 An administrative organ shall establish and improve a coordination mechanism for government information disclosure. In case the disclosure of government information concerns any other administrative organ, it shall communicate with the relevant administrative organ for confirmation to make sure that the government information to be disclosed is accurate and consistent.
In case an approval is needed for the disclosure of government information by an administrative organ as required by the relevant state provisions, no information may be disclosed without approval.
Article 8 No administrative organ may endanger national security, public security, economic security or social stability when disclosing government information.
Chapter II Scope of Information to Be Disclosed
Article 9 An administrative organ shall voluntarily disclose the government information satisfying any of the following basic requirements:
(1) Information concerning the vital interests of citizens, legal persons or other organizations;
(2) Information that should be widely known by the general public or concerns the participation of the general public;
(3) Information reflecting the structural establishment, duties, procedures for handling affairs and other situation of the administrative organ;
(4) Other information that shall be voluntarily disclosed by the administrative organ as prescribed by laws, regulations and the relevant state provisions.
Article 10 The people’s governments at or above the county level and their departments shall, in accordance with the provisions of Article 9 of these Provisions and within their respective scope of duties, determine the specific government information to be voluntarily disclosed and lay stress on the disclosure of the following government information:
(1) Administrative regulations, rules and normative documents;
(2) Development planning for national economy and social development, special planning, regional planning and the relevant policies;
(3) Statistical information on national economy and social development;
(4) Fiscal budget report and final report;
(5) Items, charging basis and charging rates of administrative fees;
(6) Catalogue of centralized government procurement items, standards and the implementation;
(7) Issues subject to administrative license, the corresponding basis, requirements, quantity, procedures, time limit and list of all the materials that shall be submitted for purposes of administrative license, and the progress of processing;
(8) Situation on the approval of great construction projects and the implementation;
(9) Polices and measures for relieving poverty, education, medical care, social security and promoting employment, etc., and their implementation;
(10) Emergency plans, early warning information and responding situation of unexpected public incidents;
(11) Situation on the supervision and inspection of environmental protection, public health, safe production, food and drugs and product quality.
Article 11 The government information of the people’s governments of the cities divided into districts, the county people’s governments and their departments, which is on top of the list for disclosure shall include the following contents:
(1) Major issues on urban and rural construction and administration;
(2) Situation on the construction of social public welfare establishments;
(3) Situation on the requisition or use of lands, demolition of houses and corresponding compensations, and the grant and use of subsidies;
(4) Situation on the management, use and distribution of funds for emergency and disasters, funds for giving special care to disabled servicemen and to family members of revolutionary martyrs and servicemen and funds contributed to the society.
Article 12 A village (town) people’s government shall, in accordance with the provisions of Article 9 of these Provisions and within its scope of duties, determine the specific government information to be voluntarily disclosed and lay stress on the disclosure of the following government information:
(1) The implementation of the relevant state policies regarding rural work;
(2) Government revenue and expenditure, and the management and use of various kinds of special funds;
(3) The overall planning of land utilization and the examination and approval of the utilization of house sites of the village (town);
(4) The requisition or use of lands, demolition of houses and corresponding compensations, and the grant and use of subsidies;
(5) Situation on creditor’s rights and debts, fund-raising and labor-input of the village (town);
(6) The grant of funds for emergency and disasters, funds for giving special case to disabled servicemen and to family members of revolutionary martyrs and servicemen and funds contributed to the society;
(7) The contracting, lease and auction activities conducted by township collective enterprises and other township economic entities;
(8) Situation on the implementation of family planning policies.
Article 13 Besides the government information voluntarily disclosed by administrative organs in accordance with the provisions of Article 9, 10, 11 and 12 of these Provisions, citizens, legal persons or other organizations may, in light of their special needs for production, living or scientific research, apply to the departments under the State Council, the local people’s governments at various levels and the departments of the local people’s government at or above the county level for accessing the relevant government information.
Article 14 An administrative organ shall establish and improve a confidentiality review mechanism of government information disclosure, and clarify the corresponding procedures and duties.
An administrative organ shall, before making government information disclosure, examine the government information to be disclosed in accordance with the Law of the People’s Republic of China on Keeping State Secrets and other laws, regulations and relevant state provisions.
Where an administrative organ is not certain whether certain government information may be disclosed, it shall report to the relevant competent department or the department in charge of confidentiality work of the same level for determination in accordance with laws, regulations and the relevant state provisions.
No administrative organ may disclose any government information involving state secrets, commercial secrets or individual privacy. But in case the obligee approves or the administrative organ believes that the failure to disclose such information would result in great influence on public interests, such government information may be disclosed.
Chapter III Forms and Procedures
Article 15 An administrative organ shall disclose the government information that shall be voluntarily disclosed through government bulletins, government websites, news releases, newspapers and periodicals, broadcasting, television or any other means easy for the general public to access.
Article 16 The people’s governments at various levels shall set up a place for consulting government information at national archives and public libraries and equip with corresponding facilities and equipments to provide convenience for citizens, legal persons or other organizations to access government information.
An administrative organ may, in light of the actual needs, set up such places as public consulting room, place for demanding materials, information board and electronic information screen for government information disclosure.
An administrative organ shall provide the government information voluntarily disclosed by it to national archives and public libraries in a timely manner.
Article 17 Government information produced by an administrative organ shall be disclosed by the administrative organ; while government information acquired from any citizen, legal person or any other organization shall be disclosed by the administrative organ that keeps such information. Where it is otherwise prescribed by law or regulation on the power limit of government information disclosure, such provision shall prevail.
Article 18 Government information that shall be voluntarily disclosed by administrative organs shall be disclosed within 20 workdays since the day when such government information is formed or changed. Where it is otherwise stipulated by any law or regulation on the time limit for government information disclosure, such provision shall prevail.
Article 19 An administrative organ shall compile and publish a directory for government information disclosure and the catalogue of government information disclosure, and update them in a timely manner.
The directory for government information disclosure shall include the classification, arrangement system, and acquisition methods of government information, and the name, business address, office hours, telephone number, fax number and e-mail of the working institution of government information disclosure.
Catalogue of government information shall include the index, name, content summary, date of formation and other contents of government information.
Article 20 A citizen, legal person or any other organization shall apply to the administrative organ for acquiring government information in accordance with the provision of Article 13 of these Provisions in written form (including the form of data text); where it is really difficult for it/him to apply in written form, the applicant may apply orally, while the administrative organ accepting the oral application shall fill in the application form for government information disclosure on its/his behalf.
An application for government information disclosure shall include the following contents:
(1) Name and contact information of the applicant;
(2) Description on the content of the government information applied to be disclosed;
(3) Requirement on the form of the government information applied to be disclosed.
Article 21 With regard to the government information applied to be disclosed, an administrative organ shall give different replies in light of the following circumstances:
(1) In case it is government information that shall be disclosed, notifying the applicant of the means and channels for accessing such government information;
(2) In case it is government information that shall not be disclosed, notifying the applicant of the fact and giving reasons;
(3) In case it shall not be disclosed by this administrative organ as prescribed by law or such government information does not exist, notifying the applicant of the fact, and if it is possible to determine the administrative organ entitled to disclose such information, notifying the applicant of the name and contact information of such administrative organ;
(4) In case the applied content is ambiguous, notifying the applicant to correct or supplement.
Article 22 In case the government information applied to be disclosed contains any content that should not be disclosed, but it is possible to distinguish such content from the government information, the administrative organ shall provide those allowed to be disclosed to the applicant.
Article 23 Where an administrative organ believes that the government information applied to be disclosed involves any business secret or individual privacy and that its disclosure may damage the legal rights and interests of a third party, the organ shall solicit the third party’s opinion in written form; if the third party disagrees with the disclosure, the organ may not disclose such information, unless it believes that failure to disclose such information would exert great influence on public interests, and under such circumstance, the organ shall notify the third party of the content of the government information to be disclosed and the corresponding reasons in written form.
Article 24 An administrative organ shall give a reply on an application for government information disclosure on the spot when possible.
Where it is impossible for the administrative organ to do so, it shall give a reply within 15 workdays since the day when the application is received; if it is necessary to extend the time limit for reply, it shall obtain the consent of the person in charge of the working institution of government information disclosure and notify the applicant of it. The time limit for rely may be extended for no more than 15 workdays.
Where the government information applied to be disclosed involves the rights and interests of a third party, the administrative organ shall solicit the third party’s opinion, and the time needed therefor shall not be counted into the time limit prescribed in Paragraph 2 of this Article.
Article 25 A citizen, legal person or any other organization applying to the administrative organ for providing the government information related to his/its tax payment, social security, medical care and health, etc., shall produce his/its valid identity certificate or evidentiary documents.
Where a citizen, legal person or any other organization has evidence to prove that the related government information provided by the administrative organ is inaccurate, he/it is entitled to request the administrative organ to correct. If the administrative organ has no right to correct such information, it shall transfer it to the administrative organ entitled to correct and notify the applicant of the situation.
Article 26 An administrative organ shall provide government information in the form required by the applicant; where it is impossible to do so, it may provide such information by arranging the applicant to consult the relevant materials, providing photocopies or in any other appropriate form.
Article 27 An administrative organ may, when providing government information as applied, only collect the costs for retrieval, replication and mailing, etc., and may not charge any other fee. No administrative organ may provide government information in the form of paid service through any other organization or individual.
The charging rates for collecting the costs for retrieval, replication and mailing, etc., shall be formulated by the competent department of price of the State Council together with the department of finance of the State Council.
Article 28 In case a citizen applying for government information disclosure is really in economic hardship, upon the application of the citizen himself and the approval of the person in charge of the working institution of government information disclosure, the relevant expenses may be deducted or exempted.
Where a citizen applying for government information disclosure has any difficulty in reading, seeing or hearing, the administrative organ shall provide necessary help for him.
Chapter IV Supervision and Safeguard
Article 29 The people’s governments at various levels shall establish and improve an evaluation system, a social appraisal system and a responsibility system of government information disclosure work to evaluate and appraise the government information disclosure work on a regular basis.
Article 30 The competent department and supervisory organ of government information disclosure shall be responsible for supervising and examining the government information disclosure work conducted by administrative organs.
Article 31 The administrative organs at various levels shall disclose their respective annual report on government information disclosure work before March 31st of every year.
Article 32 The annual report on government information disclosure work of an administrative organ shall include the following contents:
(1) Its voluntary disclosure of government information;
(2) Its disclosure of government information upon application and its refusal to disclose government information;
(3) Its charging fees for government information disclosure and the deduction and exemption of the relevant fees;
(4) Applications for administrative reconsideration or binging administrative lawsuits for government information disclosure;
(5) The major problems existing in government information disclosure work and their improvement;
(6) Other issues to be reported as required.
Article 33 Where any citizen, legal person or any other organization believes that an administrative organ fails to fulfill its obligation of government information disclosure according to law, he/it may inform the superior administrative organ, supervisory organ or the competent department of government information disclosure. The informed organ shall investigate and handle it according to law.
Where any citizen, legal person or any other organization believes that a specific administrative act committed by an administrative organ in carrying out government information disclosure work has infringed upon his/its legal rights and interests, he/it may apply for administrative reconsideration or bring an administrative lawsuit according to law.
Article 34 Where any administrative organ fails to establish and improve a confidentiality review mechanism of government information disclosure as required by these Provisions, the supervisory organ or the administrative organ at the next higher level shall order it to correct and impose a penalty upon the person-in-charge of the administrative organ in case the circumstance is serious.
Article 35 Where an administrative organ violates these Provisions and falls under any of the following circumstances, the supervisory organ or the administrative organ at the next higher level shall order it to correct and, in case the circumstance is serious, impose a penalty upon the directly liable person-in-charge and other persons directly liable of the administrative organ according to law, and where a crime is constituted, the relevant personnel shall be subject to criminal liabilities:
(1) Failing to fulfill the obligation of disclosing government information according to law;
(2) Failing to update the contents of disclosed government information, directory for government information disclosure and catalogue of government information disclosure in a timely manner;
(3) Charging fees by violating the relevant provisions;
(4) Providing government information in the form of paid services through any other organization or individual;
(5) Disclosing the government information that should not be disclosed;
(6) Other behaviors going against these Provisions.
Chapter V Supplementary Rules
Article 36 These Provisions apply to the government information disclosure activities conducted by organizations which are authorized by law and regulation and have the function of administering public affaris.
Article 37 The disclosure of the information produced or acquired by the public enterprises and institutions in the field of education, medical care and health, family planning, supply of water, power, air and heat, environmental protection, public traffic or any other field closely related to the people’s interests shall be governed by these Provisions by analogy, and the specific measures shall be formulated by the relevant competent departments or institutions of the State Council.
Article 38 These Provisions shall come into force as of May 1st, 2008.
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.
China issued freedom of information regualtion
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.
About this blog
This blog is a mirror of "FOI in China".
Should you have any question, you are warmly welcomed to write to 
!
FOI in China (Mirror) 