The following chapter is from the Article 19 report on the right to Information in Southeast Asia.
Constitutional Framework
China’s Constitution does not expressly mention the right to information but grants Chinese citizens freedom of speech, of the press, of assembly, of association, of procession and of demonstration.
Right to Information Act
The path towards adopting the RTI legislation was not majorly influenced by civil society movements, although anti-corruption movements and organisations (at the grassroots and at the international level, such as in the World Trade Organization) pushed for greater transparency.[i]
The RTI movement started at a regional level. Before the state RTI legislation was adopted, provinces and large municipalities already had their local regulations on access to information.[ii] In 2003, the People’s Republic of China Open Government Information Regulations (OGI Regulations) were put on the legislation agenda of the State Council and adopted in 2007.[iii] The OGI Regulations were criticised for being less progressive than local regulation. [iv] The central government in 2012 started issuing new progressive annual guidelines on the implementation of the Regulations emphasising the need for more transparency of the regulatory authorities and more proactive disclosure of environmental information.[v]
Provisions of the RTI legislation
Principles
The purpose of the OGI Regulations is to enhance transparency, promote legality of the administration and support productivity and social and economic activities. The OGI Regulations are rather ambiguous as to whether ‘need to know’ is a precondition to the access right. The Regulations state that people may request information “in the light of their special needs for production, living or scientific research”. According to the mainstream view among Chinese legal scholars, the Regulations have not required applicants to prove their needs (especially because Article 20 does not instruct applicants to provide reasons for their OGI requests). Yet the General Office of State Council imposed this condition, which was widely regarded as ultra vires (even by judges). Hence, ‘proving special needs’ is a de facto rule added by the General Office during the implementation of the Regulations. In 2008 and 2010, the General Office adopted two Opinions reiterating that if requested information does not relate to the requester’s “special needs” as mentioned in the Regulations, the government body may refuse access.
Scope
The right to information is limited to citizens, legal persons and other organisations. The OGI Regulations only apply to the government and its agencies at the national and local level, excluding the judiciary, the legislature and the Chinese Communist Party. Articles 36 and 37 of the Regulations apply the disclosure obligation to organisations authorised to manage public affairs and to public enterprises and institutions that provide public services closely related to the public’s interests, as further specified in in the implementing guidance of 2008.[vi] The Regulations define “government information” as information recorded or preserved in any form that is made or obtained by administrative agencies in the course of carrying out their duties.
Proactive disclosure
The Regulations provide for an extensive list of information to be proactively disclosed. The information for affirmative disclosure shall be made available within 20 days of its creation. The information to be made available relates to government structure, functions and procedures as well as information that affects the “vital interests” of the public, and matters that society broadly needs to know about or participate in. Local governments at different levels are instructed to make available information on matters of particularly great interest to the public, such as regulations and regulatory documents and information regarding emergencies and emergency planning, education policies, results of investigations into environmental protection, public health, food and drug safety, economic and social programs, government budgets and decisions, urban planning, and land requisitions and building demolition plans and standards of compensation to be given therefore.
Disclosure upon request
Requests may be submitted in written or oral form. The requestor only needs to provide his/her name, contact information, description of the information sought and the preferred form of access. Even if the OGI Regulations do not stipulate that the request must include the explanation of the purpose, this is probably required anyway since access to information needs to be justified under the problematic opinions of the General Office of State Council. The requestor may choose his/her preferred form of access and the authority is required to comply with it, unless it is impossible.
Bodies of the county level or above are obliged to set up a comprehensive right to information system and designated an organ competent to carry out tasks regarding providing the information. The bodies are required to help requesters with visual or hearing impairment or who have difficulties reading. They also should set up reading rooms where the applicant may consult the information. In case the information is not in possession of the body, it is required to notify the requester of the competent authority that likely holds the document. If the authority cannot determine the content of the request, it may require that the requester amend or supplement the request.
Even if an agency has the information, it may still refer the applicant to other agencies, because of Article 17, a unique requirement that all information created (not acquired) by agencies should be disclosed by the agency which created it and not by the agencies in possession of it. This has led to tremendous troubles for applicants and substantial extra work for bodies and requestors. According to the annual OGI data 28 released by six provincial governments, from 2008 to 2014, in each year over 20% of OGI requests were rejected on the ground that ‘information should be disclosed by other agencies’, while less than 10% of requests were rejected by invoking exemption clauses.[vii]
The authority shall provide the information immediately if possible or otherwise within 15 working days, which may be extended once by another 15 working days.
The fees for requesting information may be imposed, but must not supersede the actual costs for retrieval and reproduction. The implementing measures provide that fees may be waived for impecunious requesters.[viii]
Exemptions
The exemptions to the right to information relate to state secrets, commercial secrets and individual privacy. The OGI Regulations also call for government agencies to establish mechanisms to ensure protection of secrecy in accordance with the State Secrets legislation and other regulations.
In addition to information classified as a state secret, information classified as professional, or work secrets are also protected under other laws as its disclosure could “bring indirect harm to the authority’s work”. Often government bodies regulate internally categories of information that should be protected as “work secrets”.[ix] This is considered to be a controversial analysis and there have been cases in which courts have overruled an agency’s decision that information should be withheld because it is classified as ‘internal information’, though not a state secret, according to the ‘Provisions of the National Committee for Family Planning on Determining the Scope of State Secrets and Their Levels of Classification in the Work of Family Planning’.[x]
In addition to these exemptions, the Regulations impose a very broad principle that disclosure may not harm “state security, public security, economic security or social stability.” There is no harm test, but there is a public interest override for the privacy and trade secret exemptions. Any disclosure shall be examined in the light of the prevailing state secrets legislation.
The Regulations contain a severance provision indicating that partial access shall be granted by removing the protected bits of information. In case of refusal, the authority shall indicate the legal grounds and reasons for the refusal in writing.
Appeals
The Regulations provide for an internal review mechanism to a higher-level administrative organ, the supervision organ or the department in charge of open government information. In case of further refusal, the requester may apply for administrative reconsideration or file an administrative lawsuit. In 2011, the Supreme People’s Court provided clear legal guidance on accepting an OGI lawsuit, which agency should be the defendant, the relevant burden of proof, and what kind of judgment should be made under different circumstances.[xi] In 2014, the Court issued 10 model cases on implementation of the OGI Regulations, which resolved issues generally in favour of the requester.
The State Council is designated to promote, guide, coordinate and supervise implementation of the OGI system throughout the whole country. The Regulations do not establish an independent oversight body, such as an Information Commissioner/Commission or Ombudsman. The lack of an impartial and independent oversight body is perceived by some commenters to be curbing the public trust in the OGI system and in the dispute settlement mechanism.
Sanctions
There are sanctions for civil servants that breach the duties bestowed on them by the Regulations, including for charging excessive fees. However, there are also sanctions for disclosing exempt information, without taking into account disclosure in good faith or in the public interest.
Publication / Reporting mechanisms / Promotional measures
Each body has an obligation to draw up an annual report which is submitted to the State Council and made publicly available. The report shall contain statistical data on proactive disclosure and requests, number and grounds for appeal or lawsuits, and implementation problems. Each government body shall establish an evaluation of the implementation system. The implementing measures of the Regulations provide for setting up a training plan for each government body.[xii]
Implementation of the RTI legislation
The implementation of the law encounters a number of practical obstacles. Some of the identified problems include a lack of resources to meet records management standards and address the access requests; massive bureaucracy; broad interpretation of prevailing secrecy legislation; unease and lack of experience of civil servants; lack of experience of the courts in handling a new type of lawsuits which emerged with the OGI Regulations; and court decisions largely in favour of the government.[xiii]
However, positive trends had been observed, such as wide use of the Regulations, increased media coverage of landmark RTI cases, and changing practices through the internal review mechanism (administrative appeal). The Regulations are actively used by civil society organisations, lawyers who also advance the cause of strategic RTI litigation and citizens mainly in the area of land and property takings, urbanism and planning. While many requests are for information related to the requester directly, such as benefits information, other requests relate to environmental information, and particularly pollution, safety and conformity of vaccines, wrongdoings and corruption, budget information, and illegal construction.[xiv] Some prominent cases resulted in changes in national disclosure policies, such as publicity of budget information that was previously considered as state secret.[xv]
In 2011, roughly 3,000 requests were filed to central-government departments and 1.3 million others to offices at the provincial level. Over 70% led to the full or partial release of information and the success rate of lawsuits won by requesters increased from 5% in 2010 to 18% in 2012.[xvi] However, a study conducted by the Peking University reported that the number of requests is dropping due to obstacles faced by the requesters.[xvii] Aggregation of data released by local governments shows that the request volume across the country reached top in 2009, dropped in 2010, and increased again from 2011 till 2014.[xviii]
The most often cited reasons for refusal of access to information are the failure to demonstrate a “special need” for requesting information; privacy or commercial secrets; concern for a negative impact on the local economy; and information being outside the scope of “government information.” On a positive note, the Chinese Government has reportedly stepped up the efforts on providing proactive disclosure of an increasingly large pool of information.[xix]
Related legislation
Local laws
More than 30 provinces and municipalities adopted some kind of right to information laws, many of which were usually seen as more progressive than the OGI Regulations. The first municipality to adopt RTI legislation was the Municipality of Guangzhou in 2002, establishing a presumption that accessibility should be a rule and secrecy an exception. In 2004, Shanghai adopted its legislation, more progressive and detailed than the state level legislation.[xx] Most local OGI legislation was revised to conform to the OGI Regulations after they took effect, and most if not all 30 provinces, as well as local governments and government departments, now have OGI implementing regulations.
State Secrets Act
The Law on Guarding State Secrets[xxi] was adopted in 1988 (amended in 2010) and defines “state secrets” very broadly as “matters that affect the security and interests of the state.” State secrets legislation is reportedly often used for retaliation against human rights defenders.[xxii] In 2014, the government adopted implementing regulations under the State Secrecy Law. The Regulations impose conditions for classification and set deadlines for de-classifications, but have been criticised for not clarifying the term “state secrets” and for being generally vague.[xxiii]
Protection of whistleblowers
The right to make public interest disclosure relating to the public sector and a prohibition against state agencies or personnel from retaliating is constitutionally guaranteed (Article 41 of the Constitution) but there is no comprehensive whistleblower protection legislation and in practice, whistleblowers often face retaliations and sanctions.[xxiv] The Administrative Supervision Law, revised in 2010, establishes a system for the public to inform against state organs and public servants that violate law or discipline, and the supervisory organs under the Ministry of Supervision (whose Party counterpart is the Central Discipline Inspection Commission) are to keep informers’ names confidential and protect them. In practice, however, many informers end up being dismissed, harassed and otherwise subjected to retribution. Many Chinese legal scholars and legislators are calling for comprehensive protection of whistleblowers. A National Bureau of Corruption Prevention was created to comply with the UN Convention against Corruption. It is mandated to analyse the root causes of corruption, develop preventative measures and guide anticorruption work in public and private sectors. However, it is not authorised to investigate individual complaints.
Environmental protection legislation
China’s Environmental Protection Law was passed in 1989 and strengthened in 2014. Chapter V of the amended law stipulates for more detailed obligations to disclose environmental information (Articles 53 -56). In particular, Article 56 provides that EP agencies should disclose the full text of EIA reports, while the Measures on Open Environmental Information (for Trial Implementation) only require disclosure of the results of EIA. It also gives the public the right to report/inform on pollution and other law-breaking activities and to have their names kept confidential. In addition, the 2009 Regulations on Environmental Impact Assessment in Planning (to implement the EIA Law adopted in 2002), and the Measures on Public Participation in EIA issued by the Ministry of Environmental Protection recently in July 2015 further impose obligations to release certain categories of information about EIA and the public’s participation in it.
In 2006, China adopted the Measures on Open Environmental Information (for Trial Implementation), which require environment agencies to disclose 17 different types of environmental information, including on environmental quality, a list of polluters, audits of polluters, etc. The Measures encourage open environmental information systems, but also provide for an access upon request regime. The 2012 report of 113 cities from NRDC and the Institute for Public and Environmental Affairs found that there has been uneven progress over the past several years in improving transparency.[xxv]
International Framework
The People’s Republic of China has signed, but not ratified the ICCPR. It has signed and ratified the UNCAC.[xxvi] China has not endorsed OGP, EITI, or IATI but is member of the ADB/OECD Anti-Corruption Initiative for Asia-Pacific[xxvii] and OECD Busan Partnership for Effective Development Cooperation[xxviii] of which IATI is a core component.
Footnotes
[i] Murugkar Milind, Zhiyong Xu, Stepping towards transparency: India’s Right to Information Act and China’s Open Government Information Regulation.
[ii] Horsley Jamie P., China Adopts First Nationwide Open Government Information Regulations, freedominfo.org, 9 May 2007.
[iii] Open Government Information Regulations, 2007.
[iv] Horsley Jamie P., China Adopts First Nationwide Open Government Information Regulations, ibid.
[v] Tatlow Didi Kirsten, Chinese Government Expands Freedom of Information, New York Times, 2 April 2014. The guidelines have been issued in 2012, 2013, 2014, 2015.
[vi] Opinion of the General Office of the State Council on Improving the Work of Disclosing Government Information.
[vii] Chen, Yongxi, Postgraduate Thesis: An empty promise of freedom of information? : assessing the legislative and judicial protection of the right of access of government information in China, The University of Hong Kong, 2013
[viii] Horsley Jamie P., Update on China’s Open Government Information Regulations: Surprising Public Demand Yielding Some Positive Results, freedominfo.org, 23 April 2010.
[ix] Human Rights in China (HRIC), State Secrets: China’s Legal Labyrinth, 2007, p. 15.
[x] See Wu Youshui v. Guangdong Provincial Committee for Health and Family Planning (2014)
[xi] China to Allow Appeals Over Failure to Provide Information, freedominfo.org, August 2011.
[xii] Hubbard Paul, China’s Regulations on Open Government Information: Challenges of Nationwide Policy Implementation, 4(1) Open Government: A journal on Freedom of Information 2008, p. 13
[xiii] Horsley Jamie P., Update on China’s Open Government Information Regulations, ibid.
[xiv] Horsley Jamie P., Update on China’s Open Government Information Regulations, ibid.
[xv] Chinese Budget Disclosures still considered inadequate, freedominfo.org, May 2012.
[xvi] Leaders Discover Some Transparency Can Help Make Society More Stable, The Economist, 3 May 2014.
[xvii] Fewer Information Requests Made in China, Report Says, freedominfo.org, 14 December 2012.
[xviii] Chen, Yongxi, Freedom of Information in China? The Paradox of Access to Information in a Closed Regime, FOI 10 Years on: Freedom Fighting or Lazy Journalism? (UK: Abramis Academic Publishing,2015) 272-278.
[xix] Horsley Jamie P., China Deepens Its Disclosure Regime, freedominfo.org, 4 April 2014.
[xx] Horsley Jamie P., China Adopts First Nationwide Open Government Information Regulations, freedominfo.org, 9 May 2007; Horsley Jamie P., Shanghai Advances the Cause of Open Government Information in China, freedominfo.org, 20 April 2004; Horsley Jamie P., China’s Pioneering Foray Into Open Government: A Tale of Two Cities, freedominfo.org, 14 July 2003.
[xxi] Law of the People’s Republic of China on Guarding State Secrets. See also: International Agreements and Domestic Legislation Affecting Freedom of Expression, US Congressional-Executive Commission on China.
[xxii] Human Rights in China (HRIC), State Secrets: China’s Legal Labyrinth, 2007, p. 15.
[xxiii] China Issues Regulations Implementing Secrecy Law, freedominfo.org, 6 February 2014.
[xxiv] Beller Rachel, Whistleblower Protection Legislation of The East And West: A Study of the successes and failures of whistleblower protection legislation in the US and China, 7(873) NYU Journal of Law and Business 2011, p. 889.
[xxv] IPE and NRDC, Bottlenecks & Breakthroughs: The 2012 Pollution Information Transparency Index (PITI) Fourth Annual Assessment of Environmental Transparency in 113 Chinese Cities , 2013; See also ARTICLE 19 and the Center for Legal Assistance to Pollution Victims (CLAP-V), Access to Environmental Information in China: Evaluation of Local Compliance, December 2010.
[xxvi] Ratification information for ICCPR and ratification information for UNCAC.
[xxvii] Asian Development Bank (ADB) and Organisation for Economic Cooperation and Development (OECD) Anti-Corruption Initiative for Asia and the Pacific, Participating countries
[xxviii] Busan Partnership for Effective Development Co-operation, Countries
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