FOI in China

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With the help of some Web2.0 service, I’ve made visualized the evolution of FOI law-making in China since 2003. The development of FOI disputes after the FOI Regulation came into effect is also sketched out on a map.

Please refer to the newly added pages “Map of FOI laws” and “Map of FOI cases“.

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On 1^st May 2008 finally came into force China?s ?Regulation on the disclosure of government information?, after more than 12 months? preparation.

It is a long-awaited and exciting date for most FOI-advocates as well as common people in great need of government information closely related to their vital interest. From this moment on, with the curtain raised and the stage set, the mechanism of transparency operates, bringing the government under public supervision of its determination to keep the promise.

The regulation undoubtedly seeks to reorient a bulky bureaucracy ruling vast territory and huge population to open its information for inspection. The task is no doubt arduous in terms of workload, given the weary history of secretive governance, and complex in terms of organizational transformation, given the rigidness of bureaucratic apparatus. Clear about the difficulty, the General Office of the State Council, the organ legally responsible to oversee the nationwide operation of the regulation, issued pointed directions to local governments emphasizing the establishment of tunnels for information dissemination and organs in charge of implementation. After the ?Notice of Good Preparation for the Implementation of the Regulation [?]? circulated on 4 August 2007, it issued ?Opinions on Issues concerning the application of the Regulation [?]? on 30 April 2008, which implies policy priority and deserves further study.

Since the promulgation of the Regulation, departments or bureaux under the central government, as well as local governments, have taken steps in passing new legal norms and amending existing provisions to promote transparency. By now, 6 central organs have issued or revised departmental measurements on implementing information disclosure (Ministry of Commerce, State Power Regulatory Commission, State Administration of Environmental Protection, General Administration of Customs, State Administration of Intellectual Property, State Administration of Taxation). 11 provincial-level government have issued local rules on government openness (Liaoning, Heilongjiang, Shanghai, Fujian, Henan, Hubei, Hainan, Guangxi, Chongqing, Sichuan, Shaanxi) and the people?s congress of Guangdong province enacted similar legislation. More than 40 municipal-level governments promulgated rules of the same kind.

Alongside with the rules exclusively dedicated to government openness, various laws prescribe disclosure requirements as well, such as the Administrative Licensing Act 2003 and Prevention and Treatment of Infectious Diseases Act 2004. A subsequently passed law in August 2007, 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.

The State Council is also preparing to resolve the immediate conflicts brought by old laws on new rules. It is said that the Archive Act 1996 is under review, as a respond to the wide critics of its over-lengthy period of shielding archived government information.

In view of the constructing of supportive normative environment in favor of information disclosure, China has formulated a new transparency regime, notwithstanding the absence of a general FOI law and the remaining conflicts between pro-secrecy norms and pro-transparency requirements. It could be reasonably expected that the new regime will evolve into a higher level along with the continuous review and amendment of laws

The regime is not an easy breakthrough, Undoubtedly, it will have a far-reaching political and legal impact through empowering the citizens with a legal right to know. However, doubts remain: how well could this new born mechanism work in a relatively inactive public law system? It may take considerable time before for prudent observers to explore whether the Regulation act as a window transparent enough to allow public scrutiny of government apparatus or, virtually, just as 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. (To be continued)

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Given that broad latitude for interpretation is built in the transparency legislations, and that judicial remedy system has not formulated effective legal standards to guide and supervise the latitude, the scope of accessible information is virtually determined by the administrators literally bound by the provisions. As a consequence of the long-standing culture of government secrecy, government agencies treat the information held by them as generally secret and exceptionally accessible to the citizenry, which implies that the information can only be disclosed when the law or regulation explicitly so authorizes and should be sealed when the legal norms keep silence on any disclosure .

This phenomenon could be explained, to some extent, by classical scholarship about bureaucracy. Sociologist Max Webber warned that ?[e]very bureaucracy seeks to increase the superiority of the professionally informed by keeping their knowledge and intentions secret? (Webber 1946). Political scientist Altshuler noted that ?people in government fear nothing than newsworthy failure? (Altshuler 1997). Administrative scientists have pointed out that internal administrative rules and practices have more influence on staffs of the authority than legal norms do (Feldman 2003).

Therefore, in order to better understand administrators? behaviours concerning information disclosure, attention should be paid to the internal transparency-related policies in the administrative system, and the mechanism of the system that determines the incentives of its staffs.

However, in view of China?s one-party-ruling regime, the administrative organization functions under the omnipresent control of Chinese Communist Party. Therefore, the focus of study should be the ?institution? of politico-administrative system that ?have developed sufficient regularity and perceived importance to shape the behaviours of their members? (Lieberthal 2004). In other words, the search for factors affecting OGI rule enforcement entails the review of the internal policies and functioning of the party-led bureaucracy.

For example, the determination of highest leaders in CPC and central government could explain the wide spread of ?open administrative affairs (OAA)? campaign and its correlation with the rise of ?open government information (OGI)? legislation tide, especially the major force supporting it [1]. And the persistence of their policy stand will substantially affect the intensity of OGI legislation enforcement.

Besides, the problem of segmentation, a unique character of China?s bureaucratic system, will also affect the attitude of agencies with different competence. There are barriers between the governance of departments and regions. Given the vast territory and diverse interest among regions, policies that for the goodness of whole state are carried out and supervised by authorities directly under the State Council and not those subordinated to local governments. The administration seeking to regulate infractions will encounter obstacles from local administration when the behaviour regulated is deemed to profitable to local economic. The typical case is environmental regulation. It helps to explain why environmental protection authorities are more willing to disclose information that are otherwise embarrassing to governments ? it hope to diminish the obstacles created by local government to the policy enforcement of the departmental authority.

To conceptualize the conditions for the growth of public law rights in China, professor Xia Yong has built up an theoretical model (Xia 2004). The model tackles the affecting elements on the part of public power, which can serve as a base for the discussion of this part . And the factors will be studied from two perspectives:

Structural perspective
? Weak public record system
? Ideological concern and central control of information flow
? Interweave of secrecy agency and other administrative agencies

Micro behavioural perspective
? Instrumentalist position in promoting government openness
? Incentive and strategy of administrators
? Incentive and strategy of judges

Biblio:

Webber, M. (1946). Essays in Sociology. New York, Oxford University Press

Altshuler, A. A. (1997). Bureaucratic Innovation, Democratic Accountability, and Political Incentives. Innovation in American government: challenges, opportunities, and dilemmas. A. A. Altshuler and R. D. Behn. Washington, D.C., Brookings Institution Press: 39

Feldman, D. (2003). The limits of law: can laws regulate public administration? Handbook of public administration B. G. Peters and J. Pierre. London; Thousand Oaks, Calif. , Sage Publications

Lieberthal, K. (2004). Governing China : from revolution through reform. New York, W. W. Norton

[1]  In March 2005, the Communist Party of China and the State Council jointly issued an important document that established as national policy the principle that all information relating to administration and public services should be disclosed unless exempted as a state secret, commercial secret, or private information. This policy document further endorsed continued local experimentation with local legislation and called for the drafting of national regulations on open government information to ?legalize? open information systems by creating enforceable rights and obligations.

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Hohfeld’s delicate analytical scheme of right can shed light on the legal nature and façades of the right of access to information.

Hohfeld’s established that rights embrace four types of legal relation involving 8 key elements. Very often, statements about rights draw on more than one of the four relations identified. (Hohfeld 1923)
(1) A right is a liberty: a person has a liberty to X means that he has no obligation not to X.
(2) A right is a right ‘strictly speaking’ or a claim right: a person has a right to X means others have a duty to him in respect of X.
(3) A right is a power, that is, the capacity to change legal relations connected with X and others are liable to have their position altered. (For example, a policeman obtains a power-right to enter my home, when he gets a warrant.)
(4) A right is an immunity that is the absence of the liability to have the legal position altered with regards to X.
The relation between the right-holder and other persons differs in the four cases.
Table 1  Hohfeld’s theoretical model of rights: 8 key elements

In the light of Hohfeld’s model, the ATI right can be decomposed into 3 relations between the citizens, as the right-holder, and the government agencies, as the duty-bearer or other counterpart of the right-holder.

Table 2  Hohfeld-style model of ATI right

Therefore, the right of access through request is identified as a claim-right. Claim-right being regarded as the most important kind of rights, the right of access through request would be the centre of FOI laws. And the exemption clauses are considered as giving grounds for agencies’ immunity from the liability to disseminate information.

A right-centred analytical framework of FOI rules, which will apply to the comparison and analysis of pro-transparency rules as well as anti-transparency norms mentioned above.

1. Right-holder
2. Duty-bearer
3. Content of the right (activity of the duty-bearer, manner, term)
4. Object of the right (information that is accessible)
5. Condition of the right:
a) Immunity advanced by duty-bearer: absolute exemption
b) Administrative discretion in the qualified exemption
c) Treatment of conflicts among laws and the duties thereby imposed
d) Justifying ground of the right (moral or political foundation of the right, legislative intention)
6. Composing elements of infringement and relative defence
7. Approach of access to remedy
8. Liability and compensation

Biblo:
Hohfeld, W. N. (2001). Fundamental legal conceptions as applied in judicial reasoning. Aldershot, Ashgate

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