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Can OGI Take Off in China?

April 1, 2009

Fu Hualing

University of Hong Kong Professor Fu Hualing discusses the potential contributions of the Regulations on Open Government Information (OGI Regulations) in China, and three hurdles that could prevent their effective implementation.

Introduction

The Regulations on Open Government Information (OGI Regulations) [政府信息公开条例] were adopted by the State Council of the People’s Republic of China (PRC) on January 1, 2007, and became effective on May 1, 2008. The law requires PRC administrative agencies, subject to certain conditions, to publicize information they have created or obtained in the course of carrying out their duties, and to provide information to members of the public upon request. Based on the OGI Regulations, government departments and local governments may also subsequently formulate their own rules and policies on information disclosure.

Open government information (OGI) is not a new concept to China. It is part of on-going open government initiatives, including earlier programs on “transparency in government affairs” and “E-government” in the 1990s, and a variety of local (in Guangdong and Shanghai) and sectoral (village affairs, police, and procuracy) OGI initiatives in the 2000s. The OGI Regulations provide an additional stimulus to enhance transparency, strengthen accountability, and improve governance. They also allow citizens to pursue their rights and freedoms more proactively, and provide a legal basis for citizens to exercise their right to know (a right that is not expressly guaranteed under the Chinese Constitution), thus making the government more accountable. If the Administrative Litigation Law [行政诉讼法]—which allows citizens to file complaints to relevant State organs concerning violations of the law and dereliction of duty, and to receive compensation for losses caused by infringement of civic rights—enacted nearly 20 years ago provides a shield for citizens to protect their rights from official infringement through litigation, the OGI Regulations are, potentially, a sword for citizens to fight against malfeasance by monitoring the government more effectively, and to participate in politics more proactively. Recognizing the potential contributions of the OGI Regulations, this article discusses three hurdles that could obstruct the effective implementation of the OGI Regulations.

Legal Hurdles

There are significant legal hurdles to successful implementation of the OGI Regulations, and the most important one is perhaps the inconsistency between the primary legislation (i.e. the OGI Regulations promulgated by the State Council) and the subsidiary legislation (i.e. the local and sectoral OGI rules). It is common knowledge that provisions in primary legislation in the PRC are often vague and subject to further interpretation by local governments, ministries, and the courts. Although the Legislation Law [立法法] requires internal consistency between national legislation and subsidiary legislation, the legislative hierarchy in China is chaotic and not effectively policed. There is no meaningful mechanism and institution within the uncertain constitutional law framework in the PRC to ensure legislative consistency.

Local officials are infamous for their ability to “cheat their superiors and hide information from the public.”

There are already hundreds of such subsidiary laws, some of which have subverted the OGI Regulations in important aspects. For example, under the OGI Regulations, information is exempted from disclosure on the grounds of state secrets, trade secrets, public order, and privacy. Admittedly, this is a vague clause, but local and sectoral legislation has invariably further expanded the scope of exemption to cover “government information the disclosure of which is likely to affect inspection, investigation, gathering of evidence or other law enforcement activity, or endanger the safety of persons and property of citizens, legal persons and other organizations.”1

Another example of ultra vires subsidiary legislation is related to standing. The provision on locus standi in the OGI Regulations is already narrow. Section 13 of the OGI Regulations vaguely states that: “. . . citizens, legal persons or other organizations may, in light of their special needs for production, living or scientific research,” apply to government departments for disclosure of information. When the General Office of the State Council gave an interpretation of the OGI Regulations, standing was further narrowed to exclude an applicant who applies for disclosure of information that “is not related to the production, living, scientific research or other special needs of the applicant.”2

A more fundamental problem is that there is a lack of ground rules for the implementation of the OGI Regulations in China. Key concepts that the OGI Regulations rely on for operation, including state secrets, trade secrets, privacy, and third-party interest, lack clear and concise meanings in Chinese law, and thus can easily be invoked to deny disclosure.

Political Hurdles

The OGI Regulations serve multiple purposes, and one of them is bureaucratic control. Local officials are infamous for their ability to “cheat their superiors and hide information from the public.” Through effective compulsory information disclosure pursuant to the OGI Regulations, the central government could correct the information asymmetry to ensure the accurate publicity and faithful implementation of central policies, and to control corruption and distortion at the local level.

The central government also uses the OGI Regulations proactively to maintain control of the flow of information. By providing information through official websites, press conferences and other means in a timely fashion, the government can guide, shape, channel, and in the end, control, public opinion. In the case of major events and scandals, a timely release of information can clarify facts, provide a forum for discussion, confine the scope of debates, and allow the government to engage in a dialogue with the people, and, through this process, regain its soft power and capacity to macro-manage the public sphere. The Internet is a particularly useful medium for achieving this purpose. Given the wide coverage of the Internet and its ability to enable free and speedy flow of information, the Chinese government has been increasingly using the Internet to try to regain the commanding heights in information and public opinion control.

Without sufficient knowledge, most of the citizens become, at best, passive consumers of government information.

However, given the political agenda, it is unlikely that the OGI Regulations will be allowed to provide a platform to challenge the significant aspects of the basic political system. The government may be willing to publicize information regarding bread-and-butter issues for ordinary people, but is it ready to make public the “real” operation of the political system and the dirty laundry of government officials? Once the door is open, information that may be requested could be unpredictable and damaging from the government’s point of view. From entertainment bills of a government department to the details of government budgets, from income of government officials to the spending of the government, the list is potentially endless. Is the Party-state ready for such a political challenge?

On the other hand, the new institution and mechanism for implementation of the OGI Regulations are not well-known among the general public. Without sufficient knowledge, most of the citizens become, at best, passive consumers of government information. A random survey of annual reports filed by various local governments and government departments reveals that it was highly exceptional for any government office to receive requests for any information in both 2007 and 2008. The limited requests for information have taken place mainly in commercial cities where there are support structures for rights, and where elite law professors, lawyers and NGOs cluster and are active.

This is of course not the end of the matter. There is also an emerging support structure within civil society, and NGOs, activist lawyers, reporters, rights advocates and other informed members of society are mobilizing the law to push for a more open government. Most noticeably, green NGOs, with the support of Greenpeace and other NGOs, have been working to increase both the supply of and demand for government information. On the supply side, they have organized training for officials in environmental protection agencies and assisted in drafting more detailed and meaningful local rules on accessing environmental information. On the demand side, they have worked with lawyers and NGOs in requesting information and bringing the authorities to court when their requests are denied.

The rights defense (weiquan [维权]) lawyers and rights advocates have also seized the opportunity to exercise the right to know. Xu Zhiyong and Gongmeng [公盟] (also known as “Open Constitution Initiative” in English) have been active in identifying cases to test the OGI Regulations.3 Another veteran lawyer, Hao Jinsong, is also actively involved in OGI cases.4 There are encouraging signs of academic activism on access to government information, and more law professors are filing applications for information disclosure and bringing cases to public and media attention. Tsinghua University law professor Chen Jie filed an application requesting information related to the Wenchuan earthquake from the State Earthquake Administration; and three Peking University law professors, namely Wang Xixin, Shen Kui, and Chen Dianhong, have been battling with the Beijing Highway Administration regarding information on the use of highway levies.5 Once a door is open, people become keen to ask more intrusive questions. An on-line survey posed a simple question: What information do you most eagerly want the government to disclose? Among the 3,837 people who answered the question, most of them wanted to know the incomes of officials (77.5 percent), followed by government budget (71.3 percent). The third most popular choice was information related to land appropriation (60.3 percent).6

Some brave souls actually act on their beliefs. For example, a Shenyang resident, Wen Hongxiang, requested in an online posting that the Finance Bureau of Shenyang City disclose government entertainment expenses.7 It is cheerful news in virtual space but embarrassing for the city government. Others followed suit immediately and started to make similar demands in other cities related to other information. Demand for information regarding officials’ income soon turned to queries about the budget and government spending. After the central government announced a four trillion yuan economic stimulus plan, Shanghai lawyer Yan Yiming immediately requested publication of the details.8 (See box below.)

Surveys done by different government offices on their own information services have shown that the majority of the public are unsatisfied or very unsatisfied with the quality of government information.

Another important political hurdle is a timid and compliant court system that may not be able to stand up to powerful government departments. The record of judicial review in China in general has been a mixed picture, and the limited experience of judicial review in OGI cases is much less encouraging. For example, since 2004, courts in Shanghai have received nearly 400 cases relating to OGI. Only one applicant out of these nearly 400 cases won, and thirteen cases were withdrawn after out-of-court settlement.9

Comparatively, the record of administrative reconsideration is more encouraging (administrative reconsideration involves specialized units within the bureaucracy itself that review cases on OGI grounds). In 2006, among the 124 OGI-related reconsideration cases in Shanghai, 106 were accepted and 79 were handled. The higher-level government office upheld decisions in 61 cases and corrected decisions in 18 cases.10 Internal accountability plays a more important role than external, especially judicial, scrutiny.

Cultural Hurdles

In China, there is a deeply entrenched culture of secrecy, arrogance, and privilege on the part of the government and its officials. Within China’s authoritarian system, the government historically regards itself as the sole owner of information and attempts to govern through secrecy and deception. The OGI Regulations expressly provide that all open government information must be subject to secrecy scrutiny. However, given the vagueness of the scope of state secrets in China, there is a built-in contradiction between OGI and state secrecy within the OGI Regulations, which has the potential to defeat the principal objective of the OGI Regulations.

To compound the problem of secrecy, the OGI Regulations allow wide-ranging grounds for the government to refuse disclosure. In addition to state secrecy, there are multiple grounds for exemption, ranging from privacy to third-party interests, all of which are (as noted above) ill-defined and largely left to administrative discretion. If exemption and other excuses fail to justify nondisclosure, a government office can also claim on existence of the information requested, something that is virtually impossible to verify.

To the credit of the government at all levels, a large amount of government information has already been publicized within the short history of the implementation of the OGI Regulations, and the system is improving on a daily basis.

At the same time, armed with the rights provided by the OGI Regulations, the public has also become very demanding and holds the government “hostage” to its rhetoric. Surveys done by different government offices on their own information services have shown that the majority of the public are unsatisfied or very unsatisfied with the quality of government information.

Within the Chinese political environment, people well understand the political constraints and practice self-censorship when advocating rule of law, freedom of the press and open government information. But, having identified the “safe-zone,” people increasingly are becoming more informed and aggressive on their demands—within that “safe-zone.”

In the face of this demanding crowd, the government’s performance should be considered quite impressive, and cooperative in providing most of the requested information. For example, among the 6,852 requests for information in Shanghai to which the government responded in 2006, information was fully disclosed in 75 percent of the cases (5,143 cases); partially disclosed in 4.5 percent of the cases (306 cases); and disclosure was denied in 20.5 percent of the cases (1,403 cases).11 The principal ground for denial of disclosure was neither official secrets nor other exemptions. Applications were actually denied on the ground of “not in existence” (451 cases or 32.1 percent) or “not in possession” (420 cases or 29.9 percent) of the relevant information. Grounds for denial of disclosure for other cases were: unclear applications (259 cases or 18.5 percent); statutory exemptions (188 cases or 13.4 percent); or other grounds (85 cases or 6.1 percent).12

There may not be enough aggressive demand for information disclosure, and the OGI Regulations are meaningful only when the press, NGOs, and activist citizens start to demand information concerning the public interest. This is happening in China at this moment. Within the Chinese political environment, people well understand the political constraints and practice self-censorship when advocating rule of law, freedom of the press and open government information. But, having identified the “safe-zone,” people increasingly are becoming more informed and aggressive on their demands—within that “safe-zone.”

Conclusion

There are built-in tensions between the imperatives of open government and government secrecy, and there are significant legal, political and cultural barriers in implementing the OGI Regulations. Like the rule of law in general, the OGI Regulations are a double-edged sword. While they empower and legitimize the government through information management and control, they have also developed the potential to constrain government power. As part of the on-going reform to liberalize governance in China, the new OGI Regulations have the potential to help drive the development of a more transparent, responsive, and accountable government. The gaps between rhetoric and practice of the OGI Regulations will continue, but the piecemeal implementation has the potential to serve as a catalyst for future liberal political reform. While it is difficult to assess the quality and quantity of information provided by the government—the public simply do not know what has been hidden—it is certain that the government is opening up and providing more information than ever before. But the litmus test in the decade to come is whether the government can be forced, through litigation, public opinion, or other means, to publicize information that is inconvenient, embarrassing, or even outright offensive to the government.

Notes

1. See, for example, Article 11(4) of Anhui sheng shenjiting zhengfu xinxi gongkai guiding (shixing) [安徽省审计厅政府信息公开规定(试行)], issued by Audit Office of Anhui Province [安徽省审计厅], promulgated May 19, 2008, and effective on June 1, 2008, http://www.ahzwgk.gov.cn/XxgkNewsHtml/OA025/200901/OA025010602200901002.html. ^

2. Guowuyuan bangongting guanyu shixing “zhonghua renmin gongheguo zhengfu xinxi gongkai tiaoli” ruogan wenti de yijian [国务院办公厅关于施行《中华人民共和国政府信息公开条例》若干问题的意见], issued by General Office of the State Council [国务院办公厅], promulgated April 29, 2008, and effective on April 29, 2008, Art. 14, http://www.gov.cn/zwgk/2008-04/30/content_958477.htm. ^

3. For Gongmeng’s OGI-related activities, see Gongmeng’s website, http://www.gongmeng.cn/sub_list.php?zyj_mid=256. ^

4. See, e.g.,“Linyeju huiying Hao Jinsong huzhao shenqing cheng jiang gongkai xiangguan xinxi” [林业局回应郝劲松虎照申请称将公开相关资讯], Henan Newspapering Network Center [大河网], February 10, 2009, http://news.xinhuanet.com/local/2009-02/10/content_10791670.htm; “Shanghai jingfang jinrinei jiang jiu Yang Jia xijing an xinxi gongkai zuochu dafu” [上海警方近日内将就杨佳袭警案信息公开做出答复], Huashang Wang [华商网], October 26, 2008, http://news.hsw.cn/2008-10/26/content_10360134.htm. ^

5. The details of these cases can be found in Toumingdu Guancha [透明度观察], http://freedominfo.cn/wordpress/. ^

6. “Zhengfu xinxi gongkai tiaoli shishi gongzhong xiwang gongkai guanyuan caichan qingkuang” [政府信息公开条例实施公众希望公开官员财产情况], China Youth Daily [中国青年报], January 5, 2009, http://npc.people.com.cn/GB/14528/122476/8625987.html. ^

7.“Shenyang shimin yaoqiu zhengfu gongkai zhaodaifei guanyuan cheng nandu jida” [沈阳市民要求政府公开招待费
官员称难度极大], People’s Daily [人民日报], November 17, 2008, http://society.people.com.cn/GB/8348189.html. ^

8. “Lüshi Yan Yiming: qing gongkai siwanyi touzi xiangqing” [律师严义明:请公开四万亿投资详情!], Southern Weekly [南方周末], January 8, 2009, http://www.nanfangdaily.com.cn/nfzm/200901080078.asp. ^

9.“Shanghai: si nian 400 qi xinxi gongkai ‘mingaoguan’” [上海:四年400起信息公开“民告官”], People’s Daily [人民日报], November 12, 2008, http://news.xinhuanet.com/politics/2008-11/12/content_10343979.htm. ^

10. Shanghai Municipal Government [上海市政府], “Shanghaishi 2006 nian zhengfu xinxi gongkai niandu baogao” [上海市2006年政府信息公开年度报告], April 4, 2007, http://www.shanghai.gov.cn/shanghai/node2314/node2319/node14868/userobject21ai204490.html. ^

11. Ibid.^

12. Ibid. ^

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