China Commits to "Open Government Information" Effective May 1, 2008

May 12, 2008

In a move that Chinese officials claim is intended to combat corruption, increase public oversight and participation in government, and allow citizens access to government-held information, the State Council on April 5, 2007, issued the first national Regulations on Open Government Information (OGI Regulation), which take effect May 1, 2008.

In a move that Chinese officials claim is intended to combat corruption, increase public oversight and participation in government, and allow citizens access to government-held information, the State Council on April 5, 2007, issued the first national Regulations on Open Government Information (OGI Regulation), which take effect May 1, 2008. Implementation begins at a time when the need for greater transparency in the areas of environmental health, land disputes, disease, and food, drug, and product safety has become apparent. The time lag between issue and effective date provided citizens and government departments a one-year preparatory period.

The national regulation may alter relations between citizens and traditionally protective government bureaucracies. But it is not entirely a new development. While the overall impact of the national regulation remains unclear pending implementation, over 30 provincial and city-level governments throughout China as well as central government agencies and departments have adopted OGI rules in the last several years. Guangzhou, which was the first municipality to do so in 2002 (Chinese, English translation) and Shanghai, which issued its regulations in 2004, are but two examples.

It is important to note that the national OGI Regulation is completely separate and distinct from China's commitment to press freedom for foreign journalists before and during the Olympics, as embodied in the State Council's Regulations on Reporting Activities in China by Foreign Journalists During the Beijing Olympic Games and the Preparatory Period, which took effect on January 1, 2007.

As implementation of the national OGI Regulation proceeds, a number of issues merit attention, the following among them:

Two Main Features of OGI

  • Government agencies at all levels have an affirmative obligation to disclose certain information, generally within 20 business days. This includes information that "involves the vital interests of citizens," with emphasis on information relating to, among other items, environmental protection, public health, food, drug, and product quality, sudden emergencies, and land appropriation and compensation.
  • Citizens, legal persons, and other organizations (Requesting Parties) may request information and are entitled to receive a reply within 15 business days and no later than 30 business days. Requesting Parties can challenge a denial of access to information by filing a report with a higher-level or supervisory agency or designated open government information department or by applying for administrative reconsideration or filing an administrative lawsuit.

Areas to Watch During Implementation

  • No clear presumption of disclosure. As reported in an April 30 Xinhua article (via the Central People's Government Web site), Premier Wen Jiabao urged officials to proceed with implementation "insisting that disclosure be the principle, non-disclosure the exception." Chinese scholars and international experts, however, note that the national OGI Regulation does not set forth a clear presumption of disclosure. On this point it differs from earlier local-level OGI regulations and similar measures in other countries (see, e.g., an April 28 Caijing article and a May 9, 2007, article.)
  • Certain provisions may discourage officials from disclosing information. Under the OGI Regulation, officials who withhold information the disclosure of which is required under the Regulation may face both administrative and criminal penalties. At the same time, however, the OGI Regulation stipulates that officials must not disclose information involving "state secrets, commercial secrets, or individual privacy," and must set up mechanisms to examine the secrecy of information requested. This emphasis on safeguarding secrecy and the breadth and vagueness of the definition of "state secrets" under Chinese law may encourage officials to err on the side of non-disclosure. The regulation also prohibits officials from disclosing information that might "endanger state security, public security, economic security, and social stability." Agencies and personnel who fail to "establish and perfect" secrecy examination mechanisms or who disclose information later deemed exempt from disclosure under the OGI Regulation may face administrative or criminal punishment.
  • Requesting Parties may be denied access if the request fails to meet a recognized purpose. An opinion issued by the State Council General Office on April 29 states that officials may deny requests if the information has no relation to the Requesting Party's "production, livelihood and scientific and technological research." This reflects language in Article 13 of the OGI Regulation that says Requesting Parties may request information "based on the special needs of such matters as their own production, livelihood and scientific and technological research." This introduction of an apparent purpose test differs from earlier local-level OGI regulations and international practice, according to the May 9 article. Furthermore, another provision in the OGI Regulation which sets forth the information to be included in a request, does not instruct the Requesting Party to indicate the purpose of the request.
  • Requesting Parties lack an independent review channel to enforce the OGI. Some Chinese scholars have noted that the OGI Regulation's relief provisions constrain citizens from using the courts to challenge decisions that deny requests for information, according to the April 28 Caijing article. Because China's courts are subordinate to the National People's Congress Standing Committee and the Communist Party, "it can be anticipated that enforcement of emerging information rights in China, even with the adoption of the State Council OGI Regulations, will continue to face high hurdles within the existing court system," according to the May 9 article. While it is still too early to tell, one scholar notes that it may be possible, however, to achieve some independent review of non-political cases through creation of tribunals or commissions designed to handle OGI cases, the article said.
  • Sufficiency of funding, preparedness, and public awareness. For many departments, OGI implementation may amount to an unfunded mandate. Many agencies face resource constraints or rely on funding sources predisposed to favor non-disclosure. Local governments may not favor information disclosure that could negatively impact local business. Local environmental protection bureaus, for example, which are funded by local governments, may not receive funding adequate to implement OGI effectively. (See a CECC analysis of the Measures on Open Environmental Information, the first agency implementing regulations to come out after the OGI Regulation.) Already, a number of localities failed to meet a March deadline to make catalogues and guides intended to assist parties in requesting information available to the public. As reported by Caijing on April 28, this resulted in part from inadequate funding and technical expertise. While the government has focused on training officials, it has been less active in raising public awareness, the article added.
  • Access to information may not apply to media, whether foreign or domestic. The national OGI Regulation applies to "citizens, legal persons, and other organizations." This suggests its applicability to foreigners remains open to interpretation during implementation. It also remains unclear whether journalists in general may request access to information under the national regulation (see an August 2007 Committee to Protect Journalists report). According to an April 29 Procuratorial Daily article (via Xinhua), some Chinese experts argue that the regulation clearly applies to news organizations, which have the status of "legal persons or other organizations," and journalists, which have the status of "citizens," although foreign journalists may not be covered because they are not citizens. Some local-level OGI regulations in existence prior to the national regulation made clear its applicability to foreigners. The Guangzhou regulation, for example, provides that foreigners, stateless persons, and foreign organizations have the same rights and obligations to request information, limited to the extent that the requesting party's country or region of origin imposes restrictions on government information access to Chinese citizens. It remains to be seen whether the national OGI Regulation will be implemented so as to trump local OGI rules that are broader in application or whether the national regulation will be interpreted in a similarly broad fashion.