Information flows?: Hunan water utility case a possible first test for China’s national openness of information ordinance
By David Bandurski — It was just over a week ago that China’s long-awaited national ordinance on openness of information took effect, mandating “active disclosure” by local governments of a whole range of policy-related information. While some observers have suggested the ordinance could be a historic step forward in bringing about greater government transparency in China, others have questioned the ability and willingness of party leaders to carry out the legislation’s mandates. [See Bandurski, "China's Gloomy Governance Reform", FEER, March 2007].
Media reports this week suggest we may now have our first test case of citizens using the ordinance to access information about government behavior.
According to a report in China’s Legal Daily newspaper, Huang Youjian (黄由俭), Deng Bosong (邓柏松) and three other plaintiffs from Rucheng County (汝城县) in the Hunan city of Chenzhou (郴州) have filed a case in a local court demanding the release of information about the restructuring of the county’s water utility.
The plaintiffs, who allege that local officials acted illegally when the utility underwent restructuring, have pushed for action for more than five years.
In July of last year, the local government conducted its own investigation, but the resulting report was never made public. Huang Youjian and others repeatedly pressed county leaders to make the report available, but their requests were denied, according to the Legal Daily report.
On May 4, the first formal work day after the ordinance took effect on May 1, the plaintiffs submitted an information access request (政府信息公开申请书) to the local county government asking it publicize the report resulting from last year’s investigation into the utility restructuring.
Their request was rebuffed by local government leaders, who said the information fell outside the scope defined by the national ordinance.
On May 5, Huang, Deng and the others filed an administrative proceeding (行政诉讼) with the Chenzhou Intermediate People’s Court charging the Rucheng county government with “failure to release information” (信息不公开).
According to unnamed sources quoted by the Beijing News, top Rucheng county officials convened a meeting on May 7 to study the report in question and determine whether it should be released.
In an editorial in today’s Chengdu Commercial Daily, columnist Yang Tao (杨涛) said the Hunan case could be an important test of the ordinance and the independence of China’s judicial system.
Officials from the city and county-level legislation offices (法制办) had argued somewhat “creatively”, Yang wrote sarcastically, that because the investigation materials were references provided for official participation in policy-making and were not results and conclusions (不是对事件的处理结果和结论), they did not fall within the scope of information to be disclosed.
“But I’m not exactly clear about the legal basis of this creative reading,” Yang wrote.
The national openness of information ordinance establishes “disclosure as the rule, and nondisclosure as the exception.” For this reason, governments must have a clear legal basis for nondisclosure. According to the language of the ordinance, only government information that concerns national or commercial secrets, or personal privacy are not to be disclosed. There is no legal basis whatsoever for the idea [suggested by Chenzhou and Rucheng officials] that [materials] “provided for offical participation in policy-making” fall outside the scope of disclosure. In fact, the “investigation materials concerning the former water utility” are not matters of state secrecy, commercial secrecy or personal privacy, so how is it within the power of the Rucheng county government to suppress them?
The national ordinance stipulates that government information that concerns the vital interests of citizens, legal persons or other organizations, and which requires the knowledge and participation of the public, should be actively disclosed (主动公开). According to news reports, the investigation materials dealing with the water utility arose in the first place from concerns voiced by Huang Youjian and a number of old Rucheng cadres that there had been a series of problems with the utility’s restructuring process. These persons persisted in making petitions until the Rucheng county government launched an investigation into the restructuring of the utility involving many work units and enterprises. Put another way, the investigation materials concern the vital interests of Huang Youjian and many citizens, and they constitute government information requiring the broad knowledge and participation of the public. Rucheng government organs have an obligation to actively disclose them.
Rucheng officials could behave in this way, Yang wrote, because it was their prerogative to determine whether the information in question was a matter of “state secrecy, commercial secrecy or personal privacy.”
According to the ordinance, in the event that government offices cannot determine whether information should be released, reports for a determination should be made in accordance with national laws and regulations to the “relevant administrative department or that department at the same administrative level dealing with secrecy” (有关主管部门或者同级保密工作部门).
The problem is that offices making “secrecy” determinations fall under the jurisdiction of local governments, which means officials can make their own determinations about whether or not to release information. If the cases then go to court, the question becomes whether judges can render independent verdicts, or whether they will be influenced by local party leaders.
Therefore, this first domestic case of litigation on information release is in fact a test of whether the courts can neutrally and fair-mindedly apply the law to re-examine the determinations of secrecy organs rather than be led off by the nose. I hope that this first domestic case of litigation on information release can open up for us a road to sunshine governance.
[Posted by David Bandurski, April 9, 2008, 5:21pm HK]