By Jamie P. Horsley
The Regulations of the People’s Republic of China on Open Government Information (OGI Regulations) published on April 24, 2007, and effective one year later on May 1, 2008, mark a turning point away from the deeply ingrained culture of government secrecy toward making Chinese government operations and information more transparent. (Note 1) While these Regulations, promulgated by China’s executive body the State Council, do not have quite the status of a law promulgated by the National People’s Congress, they nonetheless provide the legal basis for China’s first nationwide government information disclosure system. Moreover, under China’s unitary legal system, the OGI Regulations will apply not only to central government agencies but also extend the disclosure obligation downward through the Chinese government hierarchy to the provinces, counties and townships, the lowest level of government in China.
A mixture of economic and political motives has driven the authoritarian Chinese Communist Party leadership toward greater transparency. China’s international and bilateral commitments require greater transparency and provide an external impetus toward greater openness. However, the main motivations underlying the OGI Regulations are largely domestic: broader sharing of government information in the service of economic development, improving people’s lives, enhancing trust between the public and the government, curbing government corruption and promoting better governance at all levels of government.
The development of the OGI Regulations over some eight years built on experience derived from “open government affairs” programs introduced incrementally throughout the country beginning in the 1990s and from locally-initiated “open government information” (OGI) legislation adopted since 2002 in over 30 provinces and municipalities throughout China, as well as within some central government departments and institutions. (Note 2) China’s Constitution does not grant Chinese citizens a right to information and existing legislation, including laws on protecting state secrets, undefined “work secrets” and archived materials, emphasizes secrecy rather than sharing of official information. Thus, drafters of the local and national legislation consulted international examples and drew on foreign expertise as well as their own experience. While the OGI Regulations are more conservative than many of the local predecessors in not establishing a clear presumption of disclosure or purporting to grant information “rights” per se, they follow the basic structure of and utilize many of the mechanisms adapted in China’s local information regimes and found in information access systems around the world.
Overview
The purposes clause of the OGI Regulations sets forth the objectives to ensure access to government information in accordance with the law, enhance the transparency of government work, promote law-based government administration and have government information used in service of the people’s productivity and livelihood as well as social and economic activities. While they do not — as do many local provisions — specify protection of the public’s “right to know” or the public’s supervision of government agencies’ exercise of power as explicit goals, Vice Minister Zhang Qiong of the State Council’s Office of Legislative Affairs explained, in introducing the OGI Regulations at a press conference, that they are in fact aimed at safeguarding “the public’s right to know, the right to participate and the right to supervise” and are intended to “help curb corruption at its source, largely reducing its occurrence.” (Note 3)
The Regulations define “government information” subject to disclosure more broadly than some local provisions as “information recorded or preserved that is made or obtained by administrative agencies in the course of carrying out their duties.” (Note 4) Other articles also apply the OGI Regulations to information held by organizations and institutions such as hospitals and public utilities that undertake regulatory matters or provide social and public services. The people’s congresses, political consultative conferences, courts and procuracies will not be covered by the OGI Regulations, although each of those institutions has taken steps in recent years to make their own operations more transparent.
The OGI Regulations generally follow the “gold standard” of Shanghai’s OGI Provisions in their basic structure. They establish two methods of accessing government information: dissemination by government agencies on their own initiative and disclosure in response to requests for information within 15-30 business days. They stipulate that government information is to be made available basically free of charge except for certain expenses like retrieval, copying and postage, which can be reduced or waived in the case of persons with economic difficulty. They call for instituting a bureaucratic infrastructure for carrying out and supervising the new system, including the designation of offices at all levels of government and in each government agency at the county level and above to handle OGI disclosure, the compilation of open information catalogues and guides on how to access and request information, and the production of annual reports detailing the amount of information disseminated, the number of requests handled and their disposition, the number of administrative reconsideration and litigation cases that have been filed and problems encountered.
The OGI Regulations stipulate the types of information to be disseminated by government agencies on their own initiative generally and at different levels, as well as various means of disseminating information. They, for example, call for publicizing information through official websites (of which there are already more than 10,000 throughout the country), government gazettes, news conferences and broadcast media, community bulletin boards and reading rooms established in archives offices, public libraries, community centers and government agencies. They set forth basic procedures for requesting and providing information, grant individuals the important new right to request and correct information about themselves that is contained in government records, require an explanation when information disclosure is denied, call for periodic inspections of how government is implementing OGI work by supervisory agencies and periodic public appraisals, and specify the basic remedies of complaint, administrative appeal and filing a lawsuit in court in the event of non-disclosure or alleged infringement rights and interests by government officials.
Scope of Information to be Disclosed
The OGI Regulations also follow earlier local OGI provisions in stipulating in some detail the categories of information that government agencies at different levels should ordinarily make public on their own initiative, normally within 20 business days of its formulation. This detailed approach to information dissemination, not frequently encountered in international practice, makes sense in the Chinese context given the lack of a tradition of public records and other forms of government transparency. The Regulations call for disclosure on the government’s own initiative of information relating 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.
More specifically, local governments at different levels are instructed to make available information on matters within their purview of particularly great interest to the public, such as regulations and regulatory documents and information regarding emergencies and emergency planning, specific fees for public services and education, results of investigations into environmental protection, public health, and 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 therefor. Irregular land takings and urban redevelopment, for example, have sparked protests and even violence throughout China in recent years, and Chinese authorities clearly recognize that enhancing transparency about such plans and the compensation to be given may contribute to better handling of these sensitive matters. China’s leaders have also learned that the public – and the global community — needs better and more timely information in the event of outbreaks of infections diseases like SARS in 2003 and bird flu in 2004 and 2005, environmental pollution incidents such as the Songhua River chemical spill in northeastern Heilongjiang province in 2005, natural and other disasters like the series of coal mine disasters in 2004 and defective food and drugs that cause illness and death in China and abroad.
This specific mandate of proactive disclosure is subject, however, to conditions and exemptions. The global ideal in “freedom of information” legislation is to set forth a clear presumption of disclosure with narrowly drawn exceptions to that principle. Many local OGI provisions introduced throughout China in the past five years do follow this model, (Note 5) some stating explicitly that “disclosure shall be the principle, non-disclosure shall be the exception,” and others framing the presumption along the lines of “all government information shall be disclosed, unless subject to one of the exemptions specified herein.” In March 2005, the General Offices of the Communist Party of China and the State Council issued a document establishing as national policy the presumption that information concerning “administrative management and public services, except that involving state or commercial secrets and individual privacy that is protected by law, shall be disclosed strictly according to facts and in strict compliance with the provisions of laws, regulations and relevant policies.” (Note 6)
The OGI Regulations, however, do not provide any such clear statement favoring disclosure over non-disclosure. They instead condition government disclosure on meeting an array of requirements that taken together appear to reflect unease about, and the continuing impulse to control, the release of information. Article 5 stipulates that disclosure must observe the principles of justice, fairness and convenience to the people, and Article 6 adds that disclosure must be timely and accurate, especially when false or incomplete information does or might influence social stability and social order. Article 7 requires pre-disclosure coordination with other agencies to ensure that information involving those agencies to be released is accurate and consistent, as well as completion of any pre-disclosure approval requirements. Article 8 then imposes a sweeping requirement that disclosure may not harm “state security, public security, economic security or social stability.”
These general principles limiting disclosure are supplemented by Article 14’s specific exemption from disclosure for information that involves state secrets, commercial secrets and individual privacy. (Note 7) That article also calls for government agencies to establish mechanisms to ensure protection of secrecy in accordance with the 1988 Law on Safeguarding State Secrets, (Note 8) which defines “state secrets” broadly as being “matters that affect the security and interests of the state.” Those matters are illustrated with general categories of information such as secrets concerning “important policy decisions on state affairs,” “economic and social development,” science and technology, and criminal investigations, as well as the more internationally conventional areas of national defense and diplomatic affairs. In practice the State Secrets Law has been interpreted quite expansively to maintain a general presumption of secrecy for a wide range of information, including information that had not been previously classified as secret. Chinese scholars and officials have observed that the scope of the State Secrets Law urgently needs to be narrowed and clarified in order to avoid undermining the fundamental purposes of the OGI Regulations to promote greater information flow.
The internationally standard exemptions from disclosure for commercial secrets and privacy also raise questions in the Chinese context. While Chinese law does define “commercial secrets,” (Note 9) the application of that concept, and the narrowness of the exemption in the context of information access regimes that frequently protect a broader scope of commercial information of competitive value to the owner and supplier thereof, will need to be further developed. Moreover, the concept of individual privacy and the protection of personal information are not yet addressed comprehensively in Chinese law. Although privacy rights have been asserted in a number of court cases, there is no law clearly establishing and defining the parameters of such rights. Subjecting such unclear concepts as “commercial secrets” and “individual privacy” to an undefined “public interest” test, as provided in Article 14, (Note 10) further muddies the waters.
When viewed together with potential administrative penalties for not establishing mechanisms to protect secrecy (Article 34) and possible criminal sanctions for “disclosing information that should not be disclosed” (Article 35(5)), the broadly drawn and undefined limitations on and exemptions from disclosure could well have a chilling effect on compliance with the new disclosure mandate by government officials. Indeed, the overall impression is that the OGI Regulations favor non-disclosure as the default principle.
The Request Function
Another respect in which the OGI Regulations appear to depart from prior Chinese as well as international practice is in the narrowly described scope of information that can be requested from government agencies. Article 13 provides that citizens, legal persons and other organizations may request government information that has not already been disclosed on the government’s own initiative “in accordance with the special requirements of their own production, livelihood, scientific research, etc.” This language suggests that the right to request government information may be subjected to a needs test of some sort, although Article 20, which stipulates the contents of information requests, does not require a showing of need for the requested information.
Experience under existing freedom of information systems around the world has demonstrated the importance of not subjecting information requests for non-published records to any needs test or limitations. Government agencies do not always disclose all the information that could be disclosed and that is of interest to the public. The request function is not just a supplement to but an integral part, even the heart, of an open government information regime. As has already been the case under China’s local GOI regimes, business associations and companies request economic statistics and data, lawyers representing clients obtain information in connection with real estate transactions and filing of various business-related application or lawsuits, scholars use information requests for historical and investigatory purposes and individuals seek information about their pensions, education, health care and relatives.
Given that one of the goals of the Chinese OGI system is to curb corruption and ensure good governance, it is important that citizens and the media be able to utilize the information request function to understand and better supervise government, as well as to more effectively engage in economic activities and protect personal interests. Narrowing the request scope might mean that critical information about government operations is not disclosed or is not released in a timely manner, or that requesters are forced to sue the government agency to get the information, which means more cost and trouble for everyone. Hopefully, the language of Article 13 will be interpreted flexibly so as not to restrict the information request mechanism.
The Need For Independent Review
Critical to establishing a credible open information system will be the availability of a relatively independent decision-making body that can decide disputes between requesters and government agencies. The OGI Regulations designate the General Office of the State Council, a sort of secretariat for the State Council, to promote, guide, coordinate and supervise implementation of the OGI system throughout the whole country, with its counterparts or other offices specially designated to handle these responsibilities performing a comparable function at local government levels. The choice of the General Office, which enjoys a superior status to that of the various ministries under the State Council, makes sense bureaucratically for purposes of providing interpretations and coordinating practice among different central government entities and local governments throughout China. Nonetheless, as overseer of China’s vast government bureaucracy, the General Office will be unlikely to have the appearance of impartiality and independence that experience elsewhere has shown is necessary to creating public confidence in the resolution of disputes over what should be disclosed that will inevitably arise between government and the public.
In the United States and other countries, the availability of independent judicial review of government disclosure decisions serves to help constrain arbitrary or abusive government action and build public confidence in the information access institution. The OGI Regulations do specify that citizens, legal persons or other organizations can file lawsuits (as well as administrative appeals) if they believe specific acts of government in its OGI work infringe their lawful rights and interests. (Note 11) China’s court system, however, is ultimately subordinate to the National People’s Congress (NPC) Standing Committee and the Party, and does not enjoy the power to interpret law, only to apply it. When issues brought before it are unclear, novel or politically sensitive, the courts typically seek or defer to political guidance. Therefore, it can be anticipated that enforcement of emerging information rights in China, even with the adoption of the State Council OGI Regulations, will continue to face high hurdles within the existing court system.
Nonetheless, it is possible to imagine devising a system to deal with questions of disclosure that arise in the ordinary course that do not involve alleged state secrets and other politically sensitive issues. Alternatives might include training judges to handle these new issues of information access, establishing a specialized tribunal within the courts as was developed in the field of intellectual property rights protection, or introducing an administrative appeals body to handle OGI disputes, such as an open government information commission or combined public-government advisory body, possibly to serve under the authority of the State Council General Office and local counterparts. The Shanghai OGI Provisions, for example, establish an Open Government Information Joint Conference with representatives from the municipal general office, supervision commission, legislative affairs office and other relevant agencies and offices, with daily work assumed by the municipal informatization commission, to undertake research and coordination of OGI work, although it is not specifically authorized to handle or give advice on disputes. The different possible models all involve questions of cost, expertise, procedure and perceived independence from government or Party control. China’s challenge is to develop a system that will resolve, or be perceived to resolve, conflicts over information access in a fair and impartial manner.
Implementation Will be Key
As always, no matter how good a law or regulation may sound, or how flawed it may appear, the key to its success will be how it is carried out. In the case of the OGI Regulations, the responsibility will fall not only on government agencies to embrace as fully as possible the new culture of openness, but also on the central government to revise conflicting legislation such as the State Secrets Law, the 1988 Archives Law that establishes a presumption that archived government information, which is under state copyright, may not be disclosed to the public for at least 30 years without special approval, and laws such as the 2005 Civil Servants Law that require protection of undefined “work secrets.” The public will also need to assume responsibility to make the new system work, utilizing the new request mechanism to obtain information and gradually press for relaxation of the apparent presumption of non-disclosure implied in the OGI Regulations.
One indication of potential for successful, flexible implementation will be the degree to which the State Council General Office permits and even encourages local governments to continue implementing their more liberal, existing OGI regimes. For example, the Shanghai OGI Provisions contain fewer restrictions on disclosure than the central mandate. Shanghai’s three published annual reports since the effective date of its OGI Provisions on May 1, 2004 show that the vast majority of the roughly 30,000 information requests filed up to December 31, 2006 that were clear and filed with the appropriate agency were complied with in full or in part – roughly 80% in 2006. Requesters obtained corrections of administrative error in 18 % of administrative appeals settled in 2006, a modest step forward. Although it is believed that no plaintiff has yet prevailed in the 73 lawsuits filed in Shanghai courts to date, the growing number of lawsuits accepted and heard by the local courts indicates that the public is actively using the OGI Provisions and attempting to assert their rights. (Note 12) Hopefully the OGI Regulations will be taken as a minimum common denominator and local regimes will be permitted to continue with their divergent but not necessarily inconsistent provisions.
Another indicator of successful implementation will be how different governments and agencies respond to the new system. The State Environmental Protection Administration, for example, quickly moved to release — in advance of publication of the OGI Regulations themselves — their own implementing measures on “environmental information” that will apply not only to disclosure by environmental government agencies but to the disclosure of certain corporate environmental information as well. (Note 13) In Shanghai, the mayor’s personal commitment to publicizing and supporting the OGI system initially, and continued “political will” to promote greater transparency through ongoing training, publicity, analysis of problems and publishing of annual reports and “open government affairs” work plans, has been an important factor contributing to gradual improvement and widespread public utilization of the system. Political support of individual government leaders will help set the tone within different governments and agencies and be an important factor in whether “open government” and “open information” become a reality.
To be sure, the challenges to effective implementation are enormous and will require persistence and a transformation of bureaucratic culture. The financial magazine Caijing reports of a man in Shenzhen, Guangdong province, who has had no luck in obtaining requested information despite the existence of provincial-level regulations calling for open government information and more than 100 administrative complaints reported since his first request in 2006. (Note 14) In the progressive city of Guangzhou, also located in Guangdong province, officials dissatisfied with the low utilization of the request channel under Guangzhou’s pioneering OGI Provisions drafted implementing measures to clarify how that system should work with the intent of encouraging more requests. During the drafting process, government agencies weighed in with many concerns about the difficulties and burden of fielding information requests. The resulting measures, while generally balanced and clarifying the request process, introduce a broad exemption from disclosure for “internal government information and internal government documents” that was not in the pioneering Guangzhou OGI Provisions themselves. (Note 15)
Mitchell Pearlman, who has more than 30 years’ experience in freedom of information work at the state level in the United States and is frequently consulted by foreign governments seeking to develop information access regimes, observes that it is not surprising to see a bureaucratic backlash against initial, expansive OGI principles. Disclosure systems are time-consuming and require trained personnel, additional expense and other resources. Officials also fear that the potential for disclosure interferes with candid decision-making.
Taken in this light, the OGI Regulations perhaps do requesters a favor in making explicit the underlying bureaucratic and political (Party) concerns surrounding this “revolutionary” new disclosure system. For example, the stipulations concerning the review that disclosure requests must undergo for secrecy concerns, criticized by some Chinese scholars, clarifies how the conflicts between opposing mandates of disclosure and secrecy are going to be handled under China’s State Secrets Law, if not how they will ultimately be resolved. The restrictive provisions in the OGI Regulations and experience in applying them will hopefully prompt a more public debate about how better to balance the contradictions between government transparency and the protection of national security. With the benefit of such dialogue and experience, China’s leaders may come to realize that increased information disclosure and transparency of government operations generally leads to greater, not less, social stability in the long run.
The U.S. Department of Justice observes, in advice it prepared for other nations seeking to develop information access regimes, that the introduction of government openness requires a “major culture change” for government agencies and their personnel, at both the institutional and personal levels. (Note 16) Concerns about loss of control and resistance to change need to be addressed openly, through ongoing training of government officials, public dialogue and experience. In the United States, an association of government “access professionals” conducts regular training programs to share experiences and best practices and educate each other on new developments in implementing the U.S. Freedom of Information Act. China has a year to prepare for implementation nationwide of the new OGI system, and training about the new requirements and publicity, as well as issuing of additional guidance, will be important components of such preparation. Drawing on the experience gained by local governments such as Shanghai, as well as international experience with implementation issues, could also be helpful.
Concluding Observations
The Chinese leadership’s decision to adopt the OGI Regulations despite clear reservations in some quarters is a remarkable development. After Premier Wen Jiabao announced that the Regulations had been adopted “in principle” on January 17, 2007, the amended text was not finally approved until April 5 and not officially released until April 24, an unusually long gap between approval and promulgation that reportedly was necessary to re-work the draft to take account of concerns raised at the approval stage. No draft of the OGI Regulations was ever made public for comment, despite earlier plans to do so, and even though a draft was widely circulated among government offices, scholars and some foreign experts.
Presumably as a result of continued apprehensions on the part of various government officials and the Party, the final OGI Regulations give conflicting signals. The broadly-drawn provisions restricting information disclosure contrast with the listing of specific kinds of information that government officials are charged with disclosing on their own initiative. However, despite the relative weak disclosure mandate, the OGI Regulations establish a sophisticated infrastructure reaching all the way down to the township level to carry out this conflicted new task of information disclosure and call for mechanisms such as annual reports, supervision and public appraisal, as well as administrative and civil remedies, designed to help ensure that the system is actually implemented. This carefully designed institutional structure seems to reflect a serious commitment to greater openness on the part of the Chinese government.
It predictably will take Chinese agencies and officials a long time to get used to, let alone comfortable with, the new concept of government being obliged to share information with its citizens. Changes in related legal regimes such as that governing state secrets, work secrets and archives, and the development of law relating to the protection of privacy and certain commercial information, will all be necessary, as many Chinese legal scholars have pointed out. The public will have to learn how to use the new system and work with government to enhance transparency responsibly. Promoting independent institutions to help resolve disputes over information disclosure will also be critical to ensuring that the new system begins to take root in the Chinese political culture. In short, instituting truly open government information in China will be a massive challenge for both government and society.
The drafting of a national law on open government information was placed on the NPC legislative agenda for the current session running through 2008. However, China will likely need more time to gain experience and confidence under the new system to be instituted under the OGI Regulations before taking the next step to enshrine information rights and obligations in a law. In the United States, for example, it took a decade to draft the original Freedom of Information Act (FOIA), passed in 1966, and that was in a country with long traditions of government accountability and public records. Moreover, FOIA has been amended three times since then.
In adopting the OGI Regulations, China has officially started its own process of developing an effective, enforceable nationwide information access regime. While the development of the OGI Regulations and their local counterparts was primarily a top-down government initiative, the Chinese people now have, by virtue of the OGI Regulations, an unprecedented channel to interact with and monitor their government and an extraordinary opportunity to help foster a new culture of government openness in China.
Notes
1. See the unofficial translation published together with this commentary. For Chinese reporting in English, see “New Rules issued to Require Government Transparency,” China Daily online, April 24, 2007; “Landmark Decree to Encourage Government Transparency,” China Daily online, April 24, 2007.
2. See prior reports by the author on the Guangzhou and Shanghai OGI Provisions, “China’s Pioneering Foray into Open Government: A Tale of Two Cities,” (posted July 14, 2003) and “Shanghai Advances the Cause of Open Government Information in China,” (posted April 24, 2004). The Guangzhou Municipal Provisions on Open Government Information, issued November 6, 2002 and effective January 1, 2003, are available in an unofficial English translation.
3. “Landmark Decree,” supra note 1.
4. Shanghai’s OGI Provisions, for example, more narrowly describe government information as that held by government agencies and related to economic and social management and public services.” Art. 2, Shanghai Municipal Provisions on Open Government Information, issued January 20, 2004 and effective May 1, 2004, available in an unofficial English translation.
5. See the articles on Guangzhou and Shanghai OGI Provisions, supra, note 2.
6. <<Zhonggong zhongyang bangongting, Guowuyuan bangongting guanyu jinyibu tuixing zhengwu gongkai de yijian,>> [Opinions of the General Office of the Central Committee of the Chinese Communist Party and of the State Council on Further Promoting Open Government Affairs], March 24, 2005, available online in Chinese.
7. Other local OGI provisions, such as Shanghai’s, enumerate additional categories of exemption, including commonly an exemption for information about matters still under deliberation and, in some cases, information relating to enforcement actions, as well as a catchall for other information exempted by law or regulation. The OGI Regulations do not address these issues.
8. Adopted September 5, 1988, effective May 1, 1989, English translation; text of Chinese original, <<Zhonghua renmin gongheguo baoshou guojia mimifa >>.
9. Article 10(3) of the Law of the People’s Republic of China Against Unfair Competition defines “commercial secrets” to mean “technical information or operating information that is not known by the public, can bring about economic benefits to the rightsholder, has practical utility and about which the rightsholder has adopted secrecy measures.” <<Zhonghua renmin gongheguo fan buzhengdang jingzheng fa >>, adopted September 2, 1992 and effective December 1, 1993; English translation.
10. See, also, Article 23 on requiring third party consent for disclosure involving such party’s commercial secrets or privacy, but subject again to a “public interest” exception. Vice Minister Zhang Qiong cited information regarding major economic crimes, business fraud and sex offences as examples of cases where the public interest outweighs the protection of individual privacy. “Landmark Decree,” supra note 1.
12. The 2006 Shanghai annual OGI report is available in Chinese.
13. See a description of the SEPA Measures (For Trial Implementation) on Open Environmental Information, adopted February 8, 2007 and promulgated April 11, 2007 for implementation, at the same time as the OGI Regulations, on May 1, 2008, in “Wen to Head Top Energy Saving Team,” China Daily, April 26, 2007, at: http://www.china.org.cn/english/BAT/209006.htm.
14. Duang Hongqing and Ye Doudou, “How Wide is the Door to Chinese Governments’ Information Disclosure?,” Caijing Magazine (posted May 2, 2007).
15. The implementing measures also reflected some progressive additions, such as that fees could be waived in the case of not only low-income persons but for non-governmental organizations and public interest groups as well.
16. “OIP Gives FOIA Implementation Advice to Other Nations.”
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