Hong Kong SAR
What's New
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20 April 2016
Hong Kong Ombudsman Issues Summaries, TV Spots
Hong Kong Ombudsman Connie Lau has announced a new website section about complaint cases relating to the Code on Access to Information and has prepared five short videos about the Code. “From complaint cases handled in the past, we noted that some departments and organisations were not conversant enough with the requirements of the Code. […]
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21 March 2014
Hong Kong Ombudsman Calls for FOI Legislation
Hong Kong Ombudsman Alan Lai Nin has called on the authorities to introduce freedom of information legislation, but others said action in not likely. His report after a year of study includes 12 recommendations. A summary states: We find that under the purely administrative ATI regime in Hong Kong, key components of the FOI laws […]
freedom of information: overview
Because Hong Kong has no Freedom of Information legislation, transparency in government is inconsistent in different agencies and policy areas. In many cases the public cannot get important information about how major policies are formulated. In contrast, the financial interest declarations of key policymakers and lawmakers, as well as land-related public information, are so transparent and readily accessible to the public that other cities could follow suit.
The right to information, in broad sense, is included in the domestic law, Article 16 of the Bill of Rights Ordinance, which was enacted in 1991:
“Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”
This language replicates Article 19 of the International Covenant of Civic and Political Rights (ICCPR). Hong Kong’s “mini-constitution,” the Basic Law, which became effective July 1, 1997, when Hong Kong’s sovereignty was returned to China, also ensures that the ICCPR’s provisions are applied in Hong Kong.
The first call for a law to specifically protect the right of access to information of public concern and about the formulation of public policies came from journalists, lawyers, and human rights advocates in the early 1990s. In 1994, a bill for an “Access to Information Act” was introduced in the legislature by an independent legislator Christine Loh. Their efforts, however, were at no avail.
Instead, the government introduced a Code on Access to Information in March 1995. Part 1 of the code covers in scope all government departments and outlines application procedures with target response times, while Part 2 sets out 16 categories of information that are exempt from disclosure, for examples, information about defense and security, economy management, and consular matters.
As a working code, it provides no legal protection of the right to public information. It has been criticized as ineffective by the public and the Hong Kong ombudsman who released an investigation report on the effectiveness of the administration of the code in January 2010, the 15th anniversary of the code’s implementation. The ombudsman’s major attacks are:
- misuse of the reasons set out in the code to refuse public request
- the lack of justification for denials of information, or justifying withholdings using reasons not specified in the code
- inadequate publicity of the code
In addition to the remarks made by the ombudsman, there are many areas of deficiencies for transparency of information with public interest, for example:
- Court judgments: The judiciary provides an online search for the judgments delivered in the open courts, but not all of them are available, and the judiciary provides no guidelines on their online availability.
- Consultancy reports: One significant feature of policy formulation is the engagement of outside consultants to study policy initiatives and justify policy decisions through consultancy reports. Many reports are not open to the public, who may be skeptical of the reports’ objectivity and any hidden interests vested in it. Secrecy surrounding the government-commissioned consultancy reports on the construction of Guangzhou-Shenzhen-Hong Kong Express Rail is one reason for the march on the Legislative Council building by thousands of protestors on January 16, 2010, after the lawmakers approved the HK$66.9 billion (US$8.62 billion) funding for the project.
- Deliberations of executive statutory agencies and advisory committees: The code does not cover hundreds of agencies and committees that make decisions on important policies, like education and transport.
- Business data on joint investments by the public and business sectors: Commercial sensitivity has been used by the government as grounds to keep the public in dark about the financial performance of two major joint ventures: Hong Kong Disneyland and the Cyberport.
Meanwhile, there are areas where transparency, supported by administrative measures and other legal provisions, provide a strong base for a “clean” government and a more open business and investment environment. Related public information is updated regularly, available online and offline free of charge, or with minimal charge. The public is not asked for identification or purpose when requesting this information.
The Chief Executive (CE) of Hong Kong is required by the Basic Law to declare his/her assets to the Chief Justice of the Court of Final Appeal. Being the president of the Executive Council (Exco), the CE, like other Exco members, is required to disclose his major financial assets and investments for public inspection, which has been a routine for years. Declaration of interests of CE and other Exco members is updated annually and readily available at the Exco website.
The Code for Officials under the Political Appointment System requires all Principal Officials who are heads of the policy ministries appointed by the central government of China, and all political appointees to declare and disclose their financial interests and investment.
More than 2,900 senior civil servants who are at directorate posts, or posts designated by the policy ministries or departments with high risk of exposure to conflict of interest situations are also required to declare their financial interests, according to the Civil Service Bureau rules. Among them, the senior officials are required to disclose their financial interest for public inspection.
Most of this information is available for inspection at the office of Civil Service Bureau.
The Legislative Council’s website maintains a full declaration of the financial interests of its 60 members, which is also updated regularly. The public could access to the reimbursement documents, available at the Legislative Council Secretariat Library, which show how the members spend their allowance for public purposes, like rents for their office or paying staff salaries.
Land-related and business entity information is the most transparent among all kinds of public information with policy and investment significance. The registration records of any parcel of land and house or apartment show its present and past ownerships, the transaction prices, date of transaction, and many actions involved in it, like mortgage, probate, or notice of maintenance served by the government. These records are accessible either online or at the office of Land Registry, for a fee.
The use of private land and changes of land-use by landowners are all determined by the Town Planning Board (TPB), a statutory advisory body, along with public consultation. The TPB meeting minutes, the opinions collected from public consultation, applications for the new land use, and final decisions are updated constantly online at the TPB website. Auctioning of government land is held in public manner, under the scrutiny of competing bidders and the press.
It is easy for the public and the press to track down the background of landowners and homeowners especially if ownership is held by a company or other business entity because company records are transparent and easily accessible. Under the provision of the company law, a company is required to update its annual returns every year and contain important particulars: names, IDs, and addresses of directors, shareholders, and company secretaries; the number and values of shares; type of business; and office registration address. Upon paying a fee, the public can get this document from the office of Company Registry or its online service.
One major challenge to access to public information is not only the lack of FOI law, but also an archives law. As one expert said, “Hong Kong does not have a Freedom of Information Law; however even if it did, it would be useless without archival law because information is not properly preserved.”[1]
Notes
[1] Civic Exchange. “Seminar report: Managing public records and preserving heritage for good governance”, April 2009. (p. 11)
freedom of information: chronology
1991 – Bill of Rights Ordinance was enacted in which “freedom to seek, receive and impart information”, which is a replica of Article 19 of International Covenant of Civic and Political Rights (ICCPR), is included.
1994 – A group of Legislative Council members, led by Christine Loh proposed a law on free public access to officially held information, but the proposal was turned down by then colonial government.
March 1995 – Instead of a law, the government launched a Code on Access to Information which is an administrative measure requiring all government departments to release public information to the public.
July 1, 1997 – The People’s Republic of China resumed sovereignty of Hong Kong.
February 2003 – The government introduced the Article 23 of the Basic Law, or national security law to the Legislative Council and set it to be passed by July that year. Strongly opposed by the public, the law will criminalize press freedom and freedom to information, particularly regarding its stipulation on the “theft of state secrets”, as it has very vague definition of state secrets as information.
July 6, 2003 – Days following a mass demonstration of over 500,000 people and sudden objection against Article 23 of an Executive Council’s member, the government aborted the legislative procedure of the law.
January 19, 2005 – A non-binding motion on “enacting a legislation on freedom of information” was passed at the Legislative Council, which says the government should regard the public’s right to know, safeguard the freedom of press and information, and enhance the transparency and accountability of the government. It also suggests the law should include the mechanism for enforcing the right and for appeal.
May 2008 – Disclosure of Government Information Law came into effect in China.
Jan 2010 – The Ombudsman released its investigation report on the government implementation of the Code on Access to Information. The spokesman of the Constitutional and Mainland Affairs Bureau, in replying to the South China Morning Post’s enquiry, said the government had no plan to enact legislation on freedom of information. Experience demonstrated 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, the spokesman said.
freedom of information: further reading
Society of Professional Journalists. “SPJ advocates for freedom of information in Hong Kong”. August 8, 2002
The Standard: “Fighting for transparency”, October 10, 2005
South China Morning Post: “Officials breach code on data access”, August 20, 2007
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The Ombudsman. “Direct Investigation Report: Effectiveness of administration of Code on Access to Information”, January 2010.
South China Morning Post: “Watchdog raps officials’ secrecy”, January 29, 2010: it has the quote from the government on its stand on FOI.