By David Bandurski — May 1 this year marked the one-year anniversary of the implementation of China’s ordinance on government information disclosure, a moment hailed by some as a breakthrough for information access in China. Since late April, Chinese media have used the occasion of the ordinance’s one-year anniversary to talk about supposed advances in information freedoms in China — and also, in more isolated cases, about lingering challenges.
For the obstinate optimists there is no doubt reason enough to remain positive about the promises of the Ordinance on Openness of Government Information, or zhengfu xinxi gongkai tiaoli (政府信息公开条例). After all, as they frequently point out, it does mark a break in principle with the assumption that information should be secret as a matter of course.
But the real track record so far, as commentators such as Xu Zhiyong (许志永) have noted (BELOW), is certainly less than stellar.
In the rosy camp today is a piece from the Jinghua Times appearing also at People’s Daily Online. The article talks about how changes in China’s handling of the SARS outbreak in 2003 and the Sichuan earthquake last year reveal its changing attitude toward information release.
Concerning the release of information, there are many examples both positive and negative. Of these, there are two examples in particular etched into the minds of Chinese.
The negative [example] is the SARS epidemic six years ago. At that time, a small number of officials, out of various considerations, covered up the epidemic situation and spoke lies to the people, vastly delaying the opportunity to check the spread of SARS. Later, the reason we could win the battle against SARS was because we learned our lesson, releasing information on SARS every day through the media.
The positive [example] is the Wenchuan earthquake one year ago. Faced with a disaster of epic proportions, the government released information at the earliest moment, and people could access reliable information quickly through the Internet, radio, television, mobile SMS and other channels. The anxieties of the people quickly settled, and there was no place for rumors to abide. People across the country united as one, gathering their strength for the disaster relief effort.
“Late reporting and the cover up of ‘negative news’ suggests a guilty conscience and a basic inadequacy, and this is also a failure to understand the importance of information openness,” the article concluded. “Openness of information is about being earnest and withholding nothing; it is an expression of a government’s confidence.”
This statement about openness and government confidence needs to be tallied, of course, with the steady suppression of information that began just one week after the earthquake struck, and which stood in sharp contrast to the earlier overtures of openness. Many key issues, such as the collapse of school buildings and disaster preparedness (long-term earthquake prediction, etc), quickly became off-limits. And to this day, much information about the Sichuan quake, particularly touching on government decision-making, has been suppressed at the local, provincial and national levels.
In another piece of positive news today, the official Xinhua News Agency hailed the pending launch (on May 30) of a comprehensive national online platform for the release of government information. It appears that the site, clearly still in the works, will serve as a kind of information release clearing house, providing on a single platform bulletins and reports released by local governments across China.
Further coverage at Sichuan Online (SCOL) today provides a slightly more neutral view of the information release ordinance and its accomplishments.
The article cites as a further example of China’s new attitude of openness the degree of access afforded to foreign journalists in China during the Beijing Olympic Games. “The right of foreign journalists to report legally in our country has gained new long-term protections under Chinese law,” it says.
A number of the inherent weaknesses in China’s approach to information openness do come out in the Sichuan Online piece, the bulk of which is an interview with legal scholar Wang Xixin (王锡锌). Wang points out, for example, that China’s secrecy laws are overly broad and this often results in the failure to release information that falls under the new ordinance.
But one of the strongest criticisms of the inadequacies of the new information openness legislation came late last month from legal scholar and activist Xu Zhiyong (许志永), who in his personal blog turned a sharp eye on official work reports on information release put out by government offices in Beijing’s Haiding District.
A translation of Xu’s blog entry follows, but we also suggest that readers of Chinese take a quick look at another April 30 entry in which he discusses information release by looking at India as a case study:
After the Ordinance on Release of Government Information took effect, governments at various levels all built websites, formed information release work groups and designated special personnel in charge of information release. And for certain basic categories of information, such as government duties, laws and regulations, organizational guides (办事指南) and work briefs (工作动态), they did make information available. In Beijing’s Haidian District, for example, they set up a special government office — the information release management section of the district government — as well as six district-level government information release locations (政府信息公开场所). Various administrative organs and institutional units in the district set up active information release locations and mechanisms for information release upon request, and also designated special personnel to deal with the work of information release. According to Articles 9 through 12 of the Ordinance, which dictate the scope of information to be released, administrative organs throughout the district worked to sort through information and generate indexes, and according to Article 15 they released these of their own accord through government websites, government bulletins and other means making access convenient for the public . . .
Generally speaking, if citizens apply for the release of standard government documents (规范性文件), government work briefs (政府工作动态), work plans (工作规划), summary reports (总结报告), punitive administrative actions (行政处罚) and other government information of an ordinary nature, most of this information can be made available . . .
If citizens request information that perhaps touches on corruption, the abuse of administrative power and other rather sensitive types of information, they find it difficult to receive an answer. In Haidian, when citizen Zhu Fuxiang (朱福祥) requested information about land compensation, resettlement and land use contracts in Sijiqing (四季青镇), he was told that such information did not exist. When citizen Chen Yuhua (陈育华) requested that police authorities release receipts from the collection of fees for dog permits and registration, he received no answer. When lawyer Yang Huiwen (杨慧文) filed a request with 73 relevant government departments and district governments for the release of expenditures on public transportation and the use of public funds, no office released the information within the legally designated 15-day period, 34 offices demanded an extension for response to this request, and 20 were simply silent.
In a number of other well-known cases, such as a request by Shanghai lawyer Yan Yiming (严义明) that information be released concerning a 400 million yuan project, information release requests were denied.
According to the 2008 report released by the Information Release Management Section of the Haidian District Government, Haidian received 350 information requests in 2008. Of these, 340 requests were made in person, accounting for 97.1 percent of the total, and 10 requests were made via the Internet, accounting for 2.9 percent of the total. Looking at the content covered by these requests, matters of urban construction, neighborhood planning, housing rights and land rights, demolition and removal compensation, etc., accounted for 308 cases, or 88 percent. There were 13 requests [for information] concerning environmental impact assessments and environmental quality, accounting for 3.7 percent of the total. There were also 13 requests [for information] concerning population statistics and public sanitation, accounting for 3.7 percent of the total. Other types of requests accounted for 4.6 percent. As of December 31, 2008, of these 350 requests for information release, 340 were answered. Of these: 229 resulted in “agreement to release” (同意公开), accounting for 65.4 percent, and most of these concerned urban development, neighborhood planning, housing rights, land rights and demolition and removal compensation. Eight cases resulted in “agreement to partial release” (同意部分公开), accounting for 2.3 percent, and these largely concerned land requisition and compensation for demolition and removal. In 12 cases, accounting for 3.4 percent of the total, the ruling was that the information was “not permitted to be released” (不予公开), and these largely concerned land requisition and development. In 47 cases, 13.4 percent of the total, the response was that the “information does not exist” (信息不存在). In 10 cases, or 2.9 percent, the response was that the “information is not in the possession of this office” (非本机关掌握). A further 12 requests, or 3.4 percent, came back with responses saying that the “information requested is not clearly specified” (申请内容不明确). And for 23 requests, or 7.7 percent, the information requested was “not government information” (非政府信息).
Aside from this, a total of 168 requests for information release were made in 2008 [at lower administrative levels] in Haidian District if one adds together the annual work reports of the various council committees (局委), neighborhood units (街道) and townships and villages (乡镇). Of these, 35 were answered “”agreement to release”,” 40 were answered “agreement to partial release,” 39 were answered “information requested does not exist,” 12 were answered “not in possession of this office” and six were answered “release not permitted.” In 36 cases, the information requested was either deemed non-government information, the information requested was not clearly specified or corrections to the request were demanded.
I cannot say for certain whether or not the figures from the Haidian District Government are meant to include numbers from its lower offices, but when you add all of these various reports together, the annual report [on information release] released by the Haidian District Government does not tally with the numbers of its subordinate offices. And judging generally, the situation of information release requests being accommodated is not cause for encouragement.
The chief obstacles to the release of government information
The first issue is inherent flaws in the ordinance on information release. Compared to information openness laws in many other countries, our information release law is merely an administrative regulation (行政法规) and not a law formally promulgated by a legislative body. According to our regulation on information release, the scope of information release applies to the government only in the narrowest sense, not including legislative bodies, the political party or social organizations. The ordinance is overly general on the question of information secrecy, erecting a roadblock to the release of information from certain government offices. Then there is the further issue of blocks put in place by the law on secrecy and other laws (保密法等法律).
Inherent flaws in the ordinance have meant that information about the vast majority of actual policy decisions that impact on the lives of the people cannot be released. Many local governments are meticulous and prissy about the release of information. In its annual report, for example, the State Asset Regulatory Commission in Wenzhou expressly emphasized the issue of secrecy protection, and had the audacity even to define the three broad categories of “petitioning by the masses” (群众信访情况), “sensitive issues in enterprise restructuring” (企业改制敏感问题) and “enterprise commercial secrets” (企业商业秘密) as information that could not be released and that should be actively restricted. They required at the same time for “reliance upon distribution procedures for public documents, so that information planned for release is examined on a case to case basis prior to release in a three-step process, with examination first by office personnel, verification and approval by office heads and final re-checking by leaders in charge. Only pre-approved documents may be posted on the Web, to ensure that no secrets are leaked.”
What’s more, information release requests lack a system of legal recourse. Article 33 of the Ordinance states that in the event that the government fails to release information, the applicant may lodge a complaint with superior offices, and if the government violates the legal rights of the citizen “in the process of information release,” [the applicant] may bring administrative litigation. This stipulation lacks specificity — exactly what kind of government behavior warrants administrative litigation in refusing information release? Experience teaches that while some courts do accept such administrative litigation from citizens, other courts do not.
Legal recourse is extremely critical. There is an urgent need, therefore, for the Supreme People’s Court to come out with a judicial interpretation that clarifies the situations in which administrative litigation can be brought when information release requests are denied.
Thirdly, a civil society is insufficiently developed [in China]. The work of information release is inseparable from non-government organizations in our civil society at are concerned with the public welfare. These organizations are natural monitors of the government. Social organizations in our country are insufficiently developed, and they do not yet constitute movements for information release such as those we see in India and other countries.
“Chang Ping: Openness and Privacy Must Switch Places in China,” China Media Project, August 28, 2008
“What Happened to China’s Era of ‘Sunshine Government’?” China Media Project, August 6, 2008
“China Newsweekly: Government ‘Cold’ on ‘Information Openness’“, China Media Project, July 31, 2008
[Posted by David Bandurski, May 5, 2009, 12:18pm HK]