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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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Traditional analytical framework of FOI regime centres on the process of information disclosure, which is often the main line of FOI law in numerous countries. It mainly includes the scope of the information to be released, the ways of dissemination, the categories of information exempt as well as the balancing conditions, and remedies.

The process of Access to Information

Yet it is more advantageous to observe and understand the disclosure system through the structure of the “access right”. On the one hand, from an analytical prospect, the process-centred framework will be entangled with complex confused standards and sometimes trivial procedural issues. Adopting the right-centred approach makes it easier to learn how much room the regime gives to access right, especially to its enforcement. It is pertinent in a sense that OGI rules – the Chinese-style FOI law – emphasize proactive dissemination rather than disclosure through request, but do not articulate whether the procative publication can be the object of a claimable right. On the other hand, the right of access to information (ATI) is the core of all mature FOI rules (Ackerman 2006), and the spirit of freedom of information lies in the access right, although it can only be ultimately realized through the act of disclosure by administrative agencies. From a normative stand, the right to information is so fundamental in strengthening democratic regime manifested by Chinese constitution that any restriction on it should be legitimized. Observing information disclosure law from a right-centred way can accentuate the significance of the access right. When deciding the legality of agencies’ disclosure act, right-centred position can facilitate the reference to the approach of reviewing government interference adopted in international jurisprudence of human rights . This approach could implement the traditional approach of Chinese administrative law which is concentrated on the legality of administrative acts.

Biblio:
Ackerman, J. M. (2006). “The global explosion of freedom of information laws.” Administrative Law Review 58(1): 85-130

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Transparency has to be attained through institutional arrangements. According to the attitudes presented in scholarship towards the relation between transparency measurements, such as FOI legislation, and the transparency as the aims of these measures, there are hypothesis that could be divided into 2 positions, 4 groups (Hood and Heald 2006).

The hypothesis in positive position claims that formal measurements, especially FOI legislations, are conventionally claimed as a means of producing new culture of openness in government organization and increasing public trust in government”. (McDonald 2006)

There are also negative hypothesis. The futility thesis thinks formal policy measurement and legal norms are nugatory to situation of transparency (Roberts 2006). They could be ignored. Bureaucrats can make compensating adjustments to make them ineffective. Or they may only serve to circumvent the professed interest of FOI laws. The jeopardy thesis contents that, while achieving some objectives, transparency norms will undermine other important values and goals, at least in some circumstances, such as reducing trust and integrity within organizations, or increasing likelihood of deadlock and a lower quality of deliberative debate (Stasavage 2006). The perversity thesis feels that policy measures such as transparency law can achieve the very opposite of their intended goals and not only merely null effects or undesired side-effects. It would mean that citizens would end up knowing less rather than more as a result of the introduction of transparent provisions[1] .

[1] The legislation of Zimbabwe, ostensibly about freedom of information, actually aims at reducing freedom of press.

Biblio:

Hood, C., D. Heald, et al., Eds. (2006). Transparency : the key to better governance? Oxford ; New York, Published for the British Academy by Oxford University Press

McDonald, A. (2006). What hope for freedom of information in the UK? Transparency : the key to better governance? C. Hood and D. Heald. Oxford ; New York, Published for the British Academy by Oxford University Press

Roberts, A. (2006). Blacked out: Government secrecy in the information age. New York, Cambridge University Press

Stasavage, D. (2006). Does transparency make a difference? The example of the European Council of Ministers. Transparency : the key to better governance? C. Hood and D. Heald. Oxford ; New York, Published for the British Academy by Oxford University Press

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The value of transparency serves as legitimate basis of constructing open government. But the value is not uncontested.

Professor Heald and Hood tried to establish the “ontology” of the transparency, describing its historical developments and various dimensions. In the aid of this framework, they distinguished 3 schools of viewpoints towards the value of transparency in literatures. The first school thinks it as good in itself irrespective of other benefits or costs. This absolutist view is restated in legal theory that access to government information is a universal human right regardless of structural and cultural divergence in countries (Birkinshaw 2006). The second school argues that transparency values only in so far as it helps society achieve more fundamental values (Heald 2006). This instrumentalist idea could lead to that transparency right is a proxy of other more critical rights, like right of the person or the property. But “precisely what is instrumental for what, particularly in the functioning of complex public organizations, is much easier to assert than to prove”. The third school is an eclectic one which recognizes intrinsic value in transparency yet trades it off at the margin of other equally important values with which it may come into conflict. But “the difficult question is to identify exactly what those trade-offs are and what are the mechanisms or qualities that distinguish valuable transparency from more negative forms. The values against which transparency has to be traded off are often left implicit”. And the balance “may be time- and place- specific rather than universal.

Out of the summary of Professor Heald and Hood, transparency gains support from political scientists. Professor Beetham demonstrated the necessity of transparency and its correlation with accountability of bureaucracy when he created the comprehensive theoretical framework of bureaucracy. (Beetham 1996). The theory of participatory democracy confirmed that for an effective participatory democracy the transparency of different authorities is necessary (Pateman 1970). Transparency is also regarded as a way to enhance government efficiency as well as effectiveness by new public management theories (Goodin and Klingemann 1996). In Chinese scholarship, transparency is recognized as a vital means to realize political development (Hu 2005). It is also considered indispensable for underpinning the growing citizen participation in public administration in China today (Li 2004).

Biblio:

 Birkinshaw, P. (2006). “Freedom of information and openness: Fundamental human rights?”Administrative Law Review 58(1): 177-218 Heald, D. (2006). Transparency as an Instrumental Value. Transparency : the key to bettergovernance? C. Hood and D. Heald, Oxford ; New York. Published for the British Academy by OxfordUniversity Press

Beetham, D. (1996). Bureaucracy. Buckingham, Open University Press

Pateman, C. (1970). Participation and democratic theory. Cambridge [Eng.], University Press

Goodin, R. E. and H.-D. Klingemann, Eds. (1996). A New handbook of political science. Oxford, Oxford University Press

Li, T. (2004). 现代公共行政中的公民参与. Beijing Shi, Jing ji guan li chu ban she

Hu, X. (2005). 政务公开与政治发展研究. 北京, 中国经济出版社

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In the scholarship that pertains to legal institution of open government, a variety of terms have been utilized. Close to each other in meaning, they contain distinct significances that need differentiation.  

Freedom of Information (FOI): More than a negative freedom, it involves a presumptive right ascribed to individuals of access to information held by public authorities. Usually it is used interchangeably with “access to information” (ATI).  

Right to Know:It signifies that the public, especially the media, can legitimately claim to acquire information from the government for effective public scrutiny of government’s functioning, and the satisfaction of this right is prerequisite for a genuine democracy. The term is more employed to express the democratic idea than to refer to a legally enforceable right. 

Government Openness: It goes beyond access to documents in requiring opening up the processes and meetings of public authorities. But it is also claimed by governments as a means of providing access to information under nonlegally binding codes that do not create right, thus avoiding the creation of enforceable legal obligation (Birkinshaw 2006) 

Transparency:Though similar to openness, transparency extends beyond openness in that lawmaking and the public administration should be made as accessible and comprehensible as possible. If openness means allowing public observation, transparency further requires simplifying the information provided so that external receptors are capable of understanding it. (Hood, Heald et al. 2006)

Biblio:

Birkinshaw, P. (2006). “Freedom of information and openness: Fundamental human rights?” Administrative Law Review 58(1): 177-218

Hood, C., D. Heald, et al., Eds. (2006). Transparency : the key to better governance? Oxford ; New York, Published for the British Academy by Oxford University Press

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China has been widely criticized of its formidable secrecy in government and administrative affairs. However, with the deepening of reform since 1978, Chinese people are crying out for an accountable bureaucracy through effective public oversight. With the strong advocates of scholars, the ruling party realized that moderate openness could help to legitimize its rule. From the late 1990s, the central government has introduced a series of tentative “open administration” reform at local levels (Zhou 2003). Subsequently there has emerged a wave of FOI rule-making since 2002 at provincial and municipal level, which was driven by local government’s need to establish their images of openness and to attract foreign investment. Such rule-makings, under the name of “Open Government Information” (OGI) and regarded as a kind of local legislation by virtue of the Legislation Act 2000, impose certain degree of obligation on administrative agencies to disclose a range of information to citizens. By December 2006, 31 provinces and municipals have issued legal provisions on government openness, among which 11 are local regulations enacted by local People’s Congress, and 20 are local rules issued by local governments. Meanwhile, 36 departments or bureaux under the State Council have issued departmental rules or measures on the same subject (Xinhua News Agency, 2006). Partly driven by the obligation under World Trade Organization’s transparency requirements[1], and partly stimulated by the disastrous consequences of information cover-up in the outbreak of SARS, the central government acquiesced in the blooming of local legislations. After 8 years of hesitation, a right of ATI that can be enforced by judiciary was finally vested in citizens by the Regulation of Open Government Information (OGIR) in April 2007[2]. It is an administrative regulation made by the State Council, which has the secondary highest authority in China’s legal hierarchy. Along side with these OGI rules, various laws prescribe disclosure requirements as well, such as the Administrative Licensing Act 2003[3], Prevention and Treatment of Infectious Diseases Act 2004[4]. A subsequently passed law in August, 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. But again, it leaves uncertain exemptions (Xinahua, 2007).

With all these measured steps in legislation, China has formulated a new transparency regime and, in this sense, joined the global FOI community, notwithstanding the absence of a general FOI law. The regime is not an easy breakthrough, given China’s weary history of secretive governance and its rigid bureaucratic apparatus. Undoubtedly, it will have a far-reaching political and legal impact through empowering the citizens with a legal right to know. However, doubts remain: will such legal construction works? Does it act as a window transparent enough to allow public scrutiny of government apparatus? Or virtually, it is no more than 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. The thesis wishes to produce an analytical framework for a comprehensive understanding of China’s FOI regime, and provide empirical data concerning its implication with reference to monitoring methods in other FOI jurisdictions.

[2] Article 33.

[3] Article 5, Article 33 and Article 59.

[4] Article 38.

“The State establishes the system for announcing information on epidemic situation of infectious diseases.

The health administration department under the State Council shall regularly announce information on the national epidemic situation of infectious diseases. Health administration departments under the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government shall regularly announce information on the epidemic situation of infectious diseases in their own administrative areas.

When an infectious disease breaks out and prevails, the health administration department under the State Council shall be responsible for announcing to the public information on the epidemic situation of the infectious disease, and may authorize the health administration departments under the people’s governments of provinces, autonomous regions, and municipalities directly under the Central Government to announce to the public information on the epidemic situation of the infectious disease in their own administrative areas.

Information on epidemic situation of infectious diseases shall be announced without delay and accurately.”

[5] Article 10 and Article 44.

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