China is in the process of drafting its first regulations to give the public a right of access to government Information. For many years citizens have been reminded only of their duty to protect national secrets. Now the new international trend for freedom of information is coming to China.
However questions have been raised on what information should be made public and what should not. And how should the law support the citizen in gaining access to that information?
Right from the September 17 inaugural meeting of the Information Law Research Society set up by the China Law Society, journalists became aware that the nation?s first Regulations for Public Access to Government Information were meeting difficulties at the drafting stage.
Experts in the field advocate that as much information as possible should be in the public domain with only a limited number of necessary state secrets being reserved.
Drafting the Regulations
Zhou Hanhua, vice president of the society, told the meeting that the draft regulations were on their way. Back in 1999 the Chinese Academy of Social Sciences had founded an agency with a remit to research and consider public access to government information. In May this year the agency received a commission from the State Council to begin the task of drafting the actual measures. By July the draft had been finished. It has seven chapters and 42 orders together with all the supporting regulations, rationale, explanations, background information and reports on areas of difficulty.
China currently has no legislation in the field so the issue of new regulations is attracting much public attention. The proposed regulations fall into two categories, public right of access to officially held information and electronic data.
In the past the focus was on the needs of security rather than public access to information. The Regulations for Public Access to Government Information represent a first in opening up government information in China. Zhou Hanhua spoke of many difficulties being encountered during drafting.
Regulation Quicker Than Legislation
In drafting the measures one watershed decision faced was whether to legislate or to regulate. Quite different procedures apply to legislation and regulation. The option to bring in regulation has been chosen as it is a much quicker process.
Central government supports public access to information. There was widespread endorsement at each of two recent meetings of the National People?s Congress. At one congress it was even the number one motion. This demonstrates the deeply held popular desire for information to be made public and researchers believe that regulation is the best way to respond to the wishes of the people without delay.
According to the introduction given by the Information Law Research Society, a regulatory approach to access to information is standard international practice. Examples would include the UK with its Codes of Practice.
Limits to the Scope of Regulation
Though Regulations on Access to Government Information can be speedily implemented, there are technical problems concerning the scope of the regulations. These would be only become fully resolved in a legislative model. Experts in the field appear downcast in the face of this dilemma.
The first problem the drafters met is that regulation alone could not impose duties on the National People?s Congress, the Courts or the Procuratorates. That means there will be restrictions in the coverage of the regulations.
Consequently the regulations will be unable to embrace many aspects of modern society where the public would now wish to have a right of access to information. Areas technically excluded at the local level would be those such as the Local Congress, Courts and Procuratorates. Opening up of information is a necessary trend in the development of society but it seems regulation is a mechanism that cannot deliver a comprehensive solution.
The Question of Dispute Resolution
How will the law protect the mass of the population? What assistance will it give in the event of a dispute between an ordinary citizen and the government on an issue of disclosure of information?
Suppose a government department were to make excuses and refuse a citizen?s request for access to government information. The final way to solve the conflict is for the citizen to raise a case against the government department in court and to let the court deal with the dispute.
According to the law of the land, this would be an administrative lawsuit where both the prosecutor and the defendant have to present their cases in court. This presents a particular problem. The government department will likely cite protection of a state secret as its grounds for declining to disclose information. In court the prosecutor would need access to this state secret in order to prepare and present a case. But by law a state secret cannot be disclosed. This would still apply to the prosecutor even if the trial were not open to the public. Moreover, the verdict would be open to the public even if the proceedings were held behind closed doors. This alone could potentially compromise a state secret.
So what can be done? Other countries have procedures to deal with this technical difficulty. In such cases the court hearing involves only the judge and the defendant. The prosecutor is not present in court. The defendant discloses the ?state secret? to the judge. The judge will then have to decide whether this is indeed a legitimate state secret or whether it should be disclosed.
Currently no such procedure is available in Chinese administrative law. And what?s more the authority to make the necessary amendments to the judicial process would be beyond the scope of the regulations being drafted. This has turned out to be a matter greatly concerning those drafting the new regulations.
Questions of Reconsideration
The law on disputes between the citizen and a government department makes provision for an internal review process within the government department itself. Only once this ?administrative reconsideration? has taken place, can the citizen seek a remedy in the courts if still not satisfied.
Experts point to the limitations of this current process not least because reviews by a higher administrative level in the same organization tend just to confirm the decisions made by their own colleagues.
Those drafting the regulations would like to add a new tier to the system. What they have in mind is an ?Information Reconsideration Committee.? This would have its members drawn from across a broad spectrum of society. Its work would take place after the internal administrative reconsideration but before the matter went all the way to court.
Two further difficulties with reconsideration face the drafters. Firstly according to the law currently in place, the citizen is only allowed 15 days after reconsideration within which to start legal proceedings. The drafters would like to see three months during which the citizen could pass the matter on to the ?Information Reconsideration Committee.? The second difficulty is the familiar problem that regulation drafting cannot make the necessary amendments to the judicial process.
The ?Work in Progress? Excuse
However the biggest issue for the drafters has been to decide between what information should be made public and what should remain privileged. And the biggest headache has turned out to be matters conveniently kept confidential on the grounds that they are still under consideration.
Government information could be withheld from the public where it
is already specifically included in security legislation;
is already included in other laws and regulations;
has been produced for internal use only and is unconnected with the citizen (eg a work schedule);
is necessary to respect individual privacy (drafters think this category should involve careful discussion and be decided on the merits of an individual case);
is a business secret;
relates to certain information involved in criminal cases;
relates to work in progress kept confidential on the grounds that it still under consideration and has not been fully resolved.
The drafters found this last category to be a common excuse given by a government department when refusing to make information public. It has no basis in law other than in those few cases where the government itself has requested that staff should maintain confidentiality eg pending publication. Scholars believe that the ?work in progress? excuse should not be allowed under the regulations.
Withholding Information to Be a Criminal Offence
Robust procedures for enforcement are proposed in the draft regulations.
The government is asked to establish and maintain a ?register of information.? This would help citizens by enabling them to identify what information is to be found.
A new role of ?information official? is proposed within government departments. This would help citizens by enabling them to identify who is responsible for providing them with access to the information.
Finally and most important of all, the regulations would not only allocate administrative responsibility but would also make it a criminal offense to conceal, falsify or destroy government information.
(china.org.cn, translated by Wu Nanlan, October 17, 2002)
