By Chan Pui-king

Since March 1995, the right to know in Hong Kong has been codified in the Code on Access to Information, an administrative measure (without the force of law) that requires all government departments to release information to the public. As the Code celebrates its 15^th year in effect, Hong Kong’s experience with use of the code and denials of information provide an interesting case study in implementation of the right to know absent the force of law.

Fifteen Years of Experience Using the Code

The public in Hong Kong has been requesting the government for information in order to better understand how the administration works, and handle the problems arising from their daily lives.

Number of requests for information under the Code on Access to Information averaged about 1675 per year since 1995 when the code became effective.  There is no consistent trend over the years; the number has increased in four consecutive years from 1996 to 1999, and 2005, 2006, and 2007 have recorded over 2000 requests every year.

Number of requests for information under Code (1995-2009)

There is no information about the users of the code, as the government requires the requesters not to reveal their identities other than basic information like name and contact number.

Revealed by the Ombudsman of Hong Kong in its investigation report, there are a few cases of users, with their personal data obliterated, who requested for information to handle problems arising from their daily lives. They are:

1. One man asked the Post Office for their correspondences with the Canada Post and an airline company over his complaints on the delay of his parcel;
2. One man asked the Buildings Departments for the photographs concerning the maintenance of the building he lives;
3. In order to facilitate repair, one man requested for a copy of an investigation report on water seepage at his house jointly conducted by Buildings Department and Food, Environment and Health Department;
4. One man asked for documents provided by the Lands Department which offered views on his application for rates exemption of his house;
5. A group of villagers asked for a copy of agreement signed between the representatives of their village and another village from the Lands Department.

The top five government departments which received most of the requests of information, under the code, from July 2007 (when the latest government’s reorganization took place) to the end of September 2009 are:

1. Immigration Department: 752 (cases processed)
2. Housing Department: 425
3. Inland Revenue Department: 424
4. Student Financial Assistance Agency: 394
5. Hong Kong Police Force: 305

The statistics, however, do not indicate the real urge for public information.  Inadequate publicity of the code attributed to low public awareness of it, pointed by the ombudsman.  It said that except in the first three years of the implementation, there has been no positive publicity through media for 11 years. After knowing that the ombudsman would carry out a full investigation, the Constitutional and Mainland Affairs Bureau, which administers the code, launched a multi-media publicity in late 2008.

Meanwhile, some people have been discouraged to use the code due to the repeated denials in the past.  David Webb, stock market analyst and advocate for corporate and government transparency, was quoted in South China Morning Post, “I’ve basically given up using it (the code).”  Webb had been denied for years his requests for the financial accounts of the companies under Cyperport project, a joint venture between the government and a listed company in Hong Kong, on the basis of business confidentiality.

Webb added, “What Hong Kong needs is a law, and the ombudsman’s failure to address this is unfortunate.”

Journalist Success Stories in Access

Quantity of melamine contained in the food samples tested by the Hong Kong government could only be revealed to the public after the journalists won the battle on the disclosure of information.

Amid the worldwide uncovering of dairy products tainted with melamine that will cause infants with kidney stone and kidney failure in 2008, the Hong Kong government released the melamine levels only of food samples failing their test; meanwhile samples passing the test would only be marked “satisfactory,” without specifying its level of melamine, if any.

Apple Daily, a Chinese-language daily newspaper in Hong Kong, requested the government to release exact levels of melamine contained in the food samples it tested, under the Code on Access to Information in 2008.  Food, Environment, and Health Department (FEHD) denied the request, based on the reason of “avoid confusion and unnecessary doubts among the public.”

The department added that legal limits for melamine in food had been set, in order to ensure protection of health of the public and food products which contained melamine within the statutory limits were safe to consume.

The paper then lodged a complaint to the Ombudsman of Hong Kong.  Following about eight-month investigation, the ombudsman substantiated the complaint and the FEHD eventually released the information.   After that, it maintains a search tool at its homepage for the public to inquire the melamine tests results in September 2008 to April 2009, by inputting the name of the products or the brands.

When being investigated by the ombudsman, the FEHD argued that disclosure of the test results without sufficient prior communication with the trade would harm the relationship with food manufacturers, and some food manufacturers might sue the government for disclosing the information.

The ombudsman however rebuffed it, by saying, in its investigation report, that “concern over possibly causing public confusion and jeopardizing relationship with food manufacturers is not a valid reason for refusal under the code.”  As regards the possibility of getting sued, the ombudsman said, “the veracity of FEHD’s findings on melamine levels is a complete defense to any action for libel brought by food manufacturers.”

For another case, the South China Morning Post, an English-language daily newspaper in Hong Kong, went through the code’s procedures to ask for disclosure of the salaries of undersecretaries and political assistants, a new tier of political appointees established in 2008 which caused public outcry over the secrecy on the appointment and salaries.  The Chief Executive’s Office rejected it, on the ground that salaries are personal data.

The paper then brought the case to the Office of the Privacy Commissioner for Personal Data.  The office said the political appointees should expect their salaries to be disclosed in the interests of government transparency.

The paper lodged a complaint to the Ombudsman of Hong Kong.  Three days later, the political appointees disclosed their own salaries.

Reasons for Denial of Public Information

Information relating to third party has been mostly used as grounds for the Hong Kong government to turn down the public request for information in the past 15 years since a working code administering the government to disclose public information was implemented.

25,125 requests have been made since March 1995 when the Code on Access to Information was implemented till the end of September 2009.  Among them, 576 requests were refused and 563 cases were partially met, which add up to 4.5 per cent, according to the Constitutional and Mainland Affairs Bureau which administers the code. The top five reasons for nondisclosure are:

1. Third Party information: 28%

2. Privacy of individual: 17%

3. Management and operation of public service: 13%

4. Internal discussion and advice: 8%

5. Law enforcement, legal proceedings and public safety: 7%

6. Research, statistics and analysis: 7%

The most-used reason for refusal and partially disclosures is third-party information, which accounts for 28% of the cases.   It is defined, by the code, as the information held for or provided by a third party under an understanding that it would not be disclosed, or the information provided in confidence by a third party and its disclosure will harm the physical or mental health of the person or other people.

The code, meanwhile, provides that if the public interest in disclosure outweighs the harm or prejudice that would result, the information should be disclosed with the consent of the third party.

But there are some cases that the government failed to consider the public interest and turned down the public request right-a-way.  For instance, a group of villagers asked the District Lands Office for a copy of agreement signed between their village representative and another village.  The office rejected their request based on the grounds that the agreement involved third party information, and the representatives of both villages did not allow disclosure.

The villagers then lodged a complaint to the Lands Department which oversees the lands office, and government’s Ombudsman.  The ombudsman found that the lands office had only considered the consent of the third party, but failed to take into account of public interest in the first instance.

Upon the advice of the ombudsman and the consideration of public interest, the Lands Department reversed the previous decision made by the lands office.

Criticism of Code Shows Growing Consensus of the Need for Access Law

Following a year-long investigation of the code’s implementation since 1995, the ombudsman said, in its report released in January this year, that there was deficiency among many government departments.  Some of them misused the reasons specified by the code to reject the public request, while some refused without giving any reasons, or with reasons not provided in the code.

The ombudsman also pointed out that the government has had inadequate publicity of the code, and inadequate training for the staff handling the public request for information.

It also suggested that as more public bodies have been established to deliver public service, they should also adopt the code in order to make them more transparent.

Advocates for greater freedom of information, from the journalists and legislators, and the editorials from major newspapers have urged the government to formulate legislation to protect the freedom.  The following are some of their views:

• “FOI legislation is an important tool for keeping the government under public accountability.  As the 15-year-old nonbinding Code (of Access to Information) has proved to be ineffective, there is only one option left: enacting a law (to protect the freedom).” – editorial from Mingpao, a Chinese-language newspaper, on February 1, 2010.

• “We believe legislation (for FOI) is essential for ensuring stronger democracy and promoting open and accountable government. It should set out clear principles on maximum disclosure of documents and information, minimal exceptions and an effective appeal mechanism, with final recourse to the courts.” – a letter from the Hong Kong Journalists Association to the Chief Executive, dated April 6, 2009.

• Cyd Ho Sau-lan, a legislature member, said even lawmakers with special powers and privileges could not see records regarding decision-making because of the absence of a law requiring disclosure of minutes. – reported by South China Morning Post, dated March 9, 2009.

• “What we have now has no teeth.  I urge anyone who has been refused access to information to report, so we (the legislature) can follow up on this issue.  Other countries in the region all have such laws (of FOI) now; it’s about time we pushed forward too,” said Emily Lau Wai-hing, a legislator and vice-chairperson of Democratic Party, who is formerly a journalist. – reported by South China Morning Post, dated January 29, 2010.

• “There is a need for easier access to government information. This would improve governance by promoting both accountability and informed debate on matters of public interest.  Steps must be taken to make the code (on Access to Information) more effective, otherwise a freedom of information law will be required to ensure greater transparency.” – editorial of South China Morning Post on January 30, 2010.

However, the government looks not all ears.  The following is the reply from the Constitutional and Mainland Affairs Bureau regarding the FOI legislation:

“Experience so far demonstrates that the Code on Access to Information provides an effective framework for the public to access a wide range of information held by the government.  We have no plan to enact legislation on freedom of information.  The Ombudsman has recently made a number of recommendations for more effective administration of the Code.  The government attaches great importance to the observations and recommendations.  We will work with bureaux and departments to ensure appropriate follow up actions on the various recommendations.”

Chan Pui-king is Adjunct Honorary Lecturer of Journalism and Media Studies Centre, the University of Hong Kong, and member of Public Records Concern Group

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Tags: impact, implementation, publications

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