Attorney Resources

China’s FOIA: The Regulation on Open Government Information

China’s FOIA: The Regulation on Open Government Information

The People’s Republic of China’s (“PRC”) Regulation on Open Government Information (“OGIR”) was enacted in January 2007 by the State Council. As the first national administrative regulation, it was a milestone in enhancing government transparency and safeguarding citizens’ right of access to government-held information. 1 After 13 long months of preparation, the regulation was implemented on May 1, 2008. Since then, the government, the public and the people’s courts have engaged in the practice of the OGIR for over six years. Although both government transparency and the guarantee of right of access brought much more criticism than praise from activists, lawyers, scholars, and legal establishments, 2 China was on the way to transparency in the information age.

Enactment of the OGIR

Concerns about state information security in the information technology era eventually concluded that “the more open, the more secret.” In order to guard state secrets and protect the national security, the State Secrets Bureau started to revise the State Secrets Law in 1997. 3 However, the State Secrets Bureau proposed that the key to amend the State Secrets Law was to balance the tension between openness and secrecy. 4

Preserving state secrets consumes resources. The more government-held information fell into the scope of “secrets,” the more resources and capability would be demanded. Definitely, the resources and capability of the government is limited. Therefore, too many secrets might become an unbearable burden, even resulting in failure to protect the genuine secrets.

As a result, the senior leaders resolved to promote government openness. After the fruitlessness of the attempt to improve transparency purely by advancing information technology, 5 the national leaders recognized that construction of e-government and systems of open government information were equally important. Thus, the determination to promulgate law was eventually made by the top leaders in China.

Meanwhile, the outbreak of SARS taught the government a severe lesson that inevitably strengthened and accelerated the process of promulgating the law. SARS started in Guangdong Province of southern China in 2002. At that time, the public was hungry for information about the real situation and what precautions were necessary. However, the authorities’ response was to withdraw the truth from the public, promising that Guangzhou was safe and the virus was under control. Thus, people knew nothing and took none of the necessary precautions.

Consequently, the infection quickly spread and broke out in Beijing, resulting in more than 5,327 cases and 349 deaths before the virus was eventually brought under control in China.6/

Following the experimental legislation of local governments, the OGIR was finally promulgated in January 2007. Even though there were already several local legislations on open government, the state government played a dominant role in directing and pushing the local governments. Therefore, the enactment of the OGIR mainly was a top-down self-reformation of the executive branch itself.

The Role of Government in Practice

The government’s preparation began immediately after the enactment of the OGIR. The 13-month preparation tested the preliminary feedback of the governments, which varied in involvement from active, to passive, and to indifferent.

For instance, during that period, the agencies were expected to prepare formulate guides and to catalogue the open government information.7 Unfortunately, only a few government agencies—such as the Government of Sichuan Province, the Government of Fujian Province, the Government of Nanjing City, the Government of Suzhou City and the Government of Yangzhou City—had completed both detailed guides and catalogues by May 1, 2008.8 Most government agencies had not formulated the catalogues completely or concretely, and some agencies had none at all.

As the first national administrative regulation, the Regulation on Open Government Information was a milestone in enhancing government transparency and safeguarding citizens’ right of access to government-held information.

After the preparation, the authorities continued the operations in compliance with the OGIR, which gradually and slightly advanced over six years. The authorities disseminated a large quantity of information on initiative by website portal, reading rooms, and press conferences. For example, in 2013, Shanghai municipal released 128,000 and 671,000 items, respectively, for municipal organs and governments at the county level.9

However, the promptness, convenience, and comprehensiveness lagged behind the standard set by the OGIR. For example, according to the investigation mentioned above by the Institute of Law of Chinese Academy of Social Sciences in 2013, among 54 state government agencies, four agencies did not provide curriculum vitae of the department leaders on the websites, and 26 failed to publicize the specific duties of the leaders. Although 53 agencies displayed their internal offices, only 41 gave the information about the duties of each office, and 18 provided the information of the phone number and e-mail address of each office.10

While the disclosure on initiative had much room for improvement, the disclosure upon request did not perform significantly better. At the very beginning, many authorities chose to be silent to OGIR requests or would answer the request but withhold the information without properly detailed explanation. For example, the Oversight Report of the Implementation of the Open Government Information by the public-interest organization of Guangzhou Zhongyixing found that of 265,411 files received by 31 provincial governments in 2013, only 142,137 received total or partial disclosure. This amounted to only 54 percent, which was based on the statistics of those governments’ annual reports of open government information work.11 Some responses, for example, withheld information “because of state secrets” or because the government had “no obligation of searching and compiling information.” Other replies disclosed portions of information that were not exact answers to the requests.

The Role of the Public in Practice

When OGIR was enacted it had seemed that many people desired accees. However, especially during the first three years of implementation, many legal scholars and journalists were deeply concerned about the cold feedback of the public because very few requests were filed.12 For example, no request for information was filed in Hainan Province, Qidong City, or many other places in 2009.13

Gradually, legal scholars, college students, lawyers, non-profit organizations, and journalists actively pursed government information about public financial budgets and final accounts, environmental protection, food and drug safety, public transportation information, etc. Their concerns were essentially to conduct oversight of government behaviors and improve transparency. For example, in 2009, lawyer Yan Yiming filed a request with Ministry of Finance and National Development and Reform Commission. He asked for the following information: (1) the list of the sources of 40,000 billion yuan expected to be paid domestically by the central government; (2) the list of the projects which applied for the 40,000 billion; and (3) the list of the projects that received the financial support, with detailed budgets for those projects.14

Following the lead of those pioneers, other people started to submit requests for their own personal interests, mainly about land property information. Usually, the OGIR was a tool for them to acquire information that had sought but had been rejected through the legal system. For example, the Siyang County Government collected the 740 square miles of land from the Nanyu Group of Luji Village with the approval of the provincial government in 2005. The county government then transferred the state-owned land use right of that land to the buyers for a nominal quotation. The Nanyu Group rejected the assignment of the state-owned land use right and sued the county government in 2008, but lost the case. Then they appealed against the ruling of the local People’s Court to intermediate People’s Court of Suqian City, which was also the court of final appeal for this case. Unfortunately, the ultimate ruling was the same. After that process, the Nanyu Group filed an OGIR request with the Siyang County Government for the information concerning the collection of the land and compensation for it.15

OGIR requests were breaking news rather than daily occurrences in China. The public either was tired of the complex bureaucratic procedures or chronically ignored the possible power of the OGIR. However, the public started to act in pursuit of right of access and the force slowly promoted the government to comply with the OGIR.

The Role of the Judicial Branch

Initially, most of the People’s Courts shut their doors to OGIR cases since the OGIR did not articulated that disputes were subject to judicial review. Facing the controversial problem, the Supreme People’s Court issued its interpretation and confirmed jurisdiction of the People’s Court to review agency decisions, which was compulsorily applied to all of the People’s Courts on August 13, 2011.16 Thus, the acceptance of OGIR cases became a routine.

However, the People’s Court failed to play a significant role in OGIR disputes. Most cases were dismissed. For example, in Beijing, out of 264 cases that were concluded by the courts at all levels in 2010, 234 cases (89 percent) were dismissed. In 2011, the courts at all levels in Beijing dismissed 171 first-instance cases, which comprised 42 percent of the 410 cases that were concluded. That was still the largest percentage among all types of judgment results. In 2012, out of 336 first-instance cases that were concluded in that municipality, dismissal was the most common judgment at 131 cases, or 39 percent.17 The success rate for requesters was no less than 20 percent.

Comparatively speaking, the People’s Courts were endeavoring to influence upon and promote the operation of the OGIR. For example, the Supreme People’s Court selected and publicized the top ten typical OGIR cases throughout the nation in 2013 and 2014, which set an example for best practices, helped the public gradually learn how to apply the new system, and supervised the government to enhance transparency. China’s top legislature adopted an amendment to the Administrative Litigation Law in 2014 aiming to expand the people’s right to sue the government,18 which was implemented on May 1, 2015 and may make a change.

Conclusion

The OGIR, the first nationwide regulation, marked a turning point away from the deeply ingrained culture of government secrecy toward making Chinese government operations and information more transparent.19 Although the practice of the players disappointed many people, the evolutionary journey revealed that government transparency was not only to serve the purpose of the government for better governance, even for secrecy, but also was a powerful tool of the public for democracy. From 2007 to present, the OGIR has helped lead a transition toward transparency.

1 See the People’s Republic of China on Ordinance for Government Information Disclosure, http://www.law.yale.edu/documents/pdf/Intellectual_Life/CL-OGI-Regs-English.pdf. 2 Liu Ping, The Evaluation Report of Post-legislation of the Regulation of Open Government Information, Research on Government Legality, 1-67, vol. 248, no. 4, 2013. 3 See the Law of the People’s Republic of China on Guarding State Secrets. 4 http://www.chinalaw.gov.cn/article/ztzl/lfzt/gktl/200704/20070400059087.shtml. (Chinese language) 5 http://phtv.ifeng.com/phoenixtv/73013082527367168/20070321/907978.shtml. (Chinese language) 6 http://www.nhs.uk/Conditions/sars/Pages/introduction.aspx. 7 http://www.law.yale.edu/documents/pdf/Intellectual_Life/CL--OGI-State_Council_Notice-English.pdf. 8 Mo Yuchuan and Lin Hongchao, “Research Report on Preparations to Implement the Open Government Information Regulations: Investigating in Particular the Experience of Jiangsu, Fujian, Sichuan and Yunnan Provinces,” Faxue (Issue no. 6, 2008), pp. 113-120. 9 The Annual Report on the Work of Shanghai Municipal’s Open Government Information (2013), http://www.gov.cn/xinwen/2014-03/31/content_2650247.htm. (Chinese language) 10 Report of Transparency Index of Chinese Government of 2013, http://guoqing.china.com.cn/2014-12/09/content_34270050_2.htm. (Chinese language) 11 http://china.caixin.com/2014-04-30/100672453.html. (Chinese language) 12 Zhou Hanhua, Some Problems and Policy Suggestions Concerning the Implementation of Regulation of Government Information Disclosure, Chinese Administrative Management, pp.11-14, vol. 289, no. 7, 2009. 13 Mo Yuchuan, Xu Lianli, On Characteristics of the 2008 Annual Report of Governmental Information Disclosure, Academic Forum of Nandu (Journal of the Humanities and Social Sciences), pp. 72-76, vo. 29, No. 4 2009. 14 http://news.sina.com.cn/c/2009-02-10/024217179798.shtml. (Chinese language) 15http://news.sina.com.cn/s/2010-02-03/030619615333.shtml. (Chinese language) 16 See Provisions of the Supreme People’s Court on Several Issues concerning the Trial of Administrative Cases about Open Government Information. http://www.saic.gov.cn/zcfg/sfjs/fgs/201112/t20111215_121774.html. (Chinese language) 17 Center for Public Participation Studies and Supports, An Investigative Report on Judicial Review of Open Government Information Cases in China (October 2013), http://www.law.yale.edu/intellectuallife/openinformation.htm. 18 http://news.xinhuanet.com/english/china/2014-11/01/c_133758622.htm. (Chinese language) 19 See http://www.law.yale.edu/documents/pdf/Intellectual_Life/CL-OGI-China_Adopts_JPH-English.pdf.
Under Oath: Moses Zapien
The Fledgling Practitioner
 

Comments

No comments made yet. Be the first to submit a comment
Guest
Monday, 30 March 2020

Captcha Image

Find an Attorney now

Ready to get a Lawyer to assist with your legal issue? Fill out our referral request form and we'll match you with a qualified attorney who specializes in the area of law that you need assistance with.

Lawyer Referral Request Form

The SJCBA office is closed to the public in compliance with the state and county orders. Your staff is working from home and is able to serve your needs Monday – Thursday 8:30 am – 5:00 pm. The SJCBA will not be working on Fridays until further notice.

The office phone, 209-948-0125, is being monitored. Leave messages.

To reach any of your staff by email:
Robert Oakes -
Juanita Chavez -
Nicholas Closs -
Jarrod Corradi -
Linda Mussat -
Rose Ramirez -
Jennifer Riggs -
Natalie Vernon -

Thank you for your patience during this time. Please take care of yourself and those you love.
Robert E. Oakes, J.D., M.B.A.
Executive Director