|
14
July 2003
China's Pioneering Foray Into Open Government: A Tale of
Two Cities
By
Jamie P. Horsley
Guangzhou
Municipal Provisions on Open Government Information
(Decree No. 8 of the Guangzhou Municipal People's Government
dated November 6, 2002) (PDF - 158 KB)
China's
initial reticence in sharing information about the severe
acute respiratory syndrome (SARS) epidemic highlighted anew
the culture of secrecy that has for centuries shrouded the
Chinese state and state-held information from not only the
world but its own people as well. Stung by strong domestic
and international criticism, the central government ultimately
directed governments at all levels to report information
on SARS accurately, honestly, and in a timely manner, threatening
harsh punishment for delay or cover-up.
The
SARS episode is playing out against the backdrop of a movement
for greater openness in government affairs, aimed at supporting
China's economic development drive, helping curb official
corruption, and providing a safety valve to dissatisfied
citizens who increasingly demand more accountability from
government at all levels. Bills calling for national legislation
on government information transparency were submitted to
several recent annual meetings of the National People's
Congress. Indeed, a scholars' draft of national regulations
to establish a Chinese-style "freedom of information"
system is currently before the State Council for review.
Ironically, given its subject matter, the draft's specific
content is still not widely known and has been circulated
only to selected scholars and government agencies for comment.
Guangzhou
leads the way
Meanwhile,
the Guangzhou municipal government made history by pioneering
the first legislation aiming to institutionalize government
transparency on a wide range of matters. Breaking the Chinese
imperial and socialist traditions of government secrecy,
the Guangzhou Municipal Provisions
on Open Government Information (the provisions)
establish a presumption that government-held information
should be public, making nondisclosure the exception rather
than the norm. Moreover, the provisions call on the government
to release drafts of policies and regulations for public
input before they are finalized and implemented.
The
Chinese government has long been the primary repository,
producer, and publisher of all kinds of information relating
to social, economic, and political affairs. In recent years,
as part of a drive toward what the Chinese call "informatization"
(xinxihua), twin nationwide programs were launched
to make government affairs more open to the people (zhengwu
gongkai) and to build "e-government" networks
under which government agencies at the central and local
levels would make an ever-increasing amount of information
available, and provide administrative services, on the Internet.
These projects have made government more open--if not necessarily
more accountable--to ordinary Chinese citizens. China's
commitments under its World Trade Organization (WTO) entry
agreement also require the country to make trade-related
rules and requirements transparent.
But
China lacks legislation in the area of government transparency
and does not provide clearly for information rights. Efforts
to promote greater transparency under the programs mentioned
above have met with no small degree of resistance from officials
accustomed to working behind a shield of secrecy. Statistics
indicate that some 80 percent of all information is held
by the government and that most of it is treated as non-public,
thus impeding economic development. Chinese scholars point
out that inaccessibility to relevant government-held information
has led to economic losses and misallocations, corruption,
and fraud, as well as policy-related constraints. Existing
legislation, such as the 1988 Law on Guarding State Secrets,
emphasizes confidentiality and secrecy, not disclosure of
public information.
Guangzhou
was one of the first jurisdictions to embrace the policy
of making government affairs public, and undertook experiments
in the late 1980s and adopted trial measures in 1992. To
comply with WTO requirements and to gain even greater administrative
efficiencies from enhanced transparency, the Guangzhou municipal
government decided to formulate government information disclosure
legislation that would standardize municipal practice and
raise the standards for compliance. Drafted with the assistance
of scholars from Guangzhou's Zhongshan University and taking
account of international experience, the Guangzhou government
announced the provisions
to great public fanfare on October 30, 2002. They took effect
on January 1, 2003.
New
information rights
The provisions contain two fundamental and novel ideas:
that Chinese government agencies have an obligation to disseminate
automatically, and disclose upon request, most of the information
that they hold and that Chinese citizens have a right to
access such information. The provisions aim to protect the
"right to know" (zhiqingquan) of individuals
and organizations. They refer to individuals and organizations
as "persons with the right to access" (gongkai
quanliren) and refer to all levels of government and
its functional departments and organizations that carry
out administrative powers as "persons with the obligation
to make public" (gongkai yiwuren). The provisions
establish unprecedented rights and obligations in the area
of access to government information.
"Government
information" covered by the provisions means information
made, obtained, or possessed by all levels of government
and its functional departments and related organizations
in the course of managing or providing public services.
It is unclear whether this definition covers every agency
including, for example, the Ministry of Public Security
and the People's Courts. Nonetheless, the provisions stipulate
that government information shall in principle be made public,
with nondisclosure only in exceptional cases. This principle
of openness reverses past practice, under which government
agencies jealously guarded information about their functions,
staff, expenditures, and programs, as well as many of their
policies, regulations, and decisions, as "state secrets."
Moreover, the government must make such information available
free of charge. Even foreigners are entitled under the provisions
to access government information, subject to a reciprocity
clause.
The
provisions diverge from comparable US legislation by describing
in detail--possibly to drive home the point--the categories
of information that the government must disseminate on its
own initiative and in the ordinary course of managing or
providing public services. This kind of information includes
what is called "governance-related" information
such as development plans, rules, and regulations; the functions
and structure of government agencies and the resolution
of major events; financial matters such as budget information
and government expenses; government personnel-related information;
and administrative procedures. Compared to the days when
China first "opened up" in the early 1980s--when
one could not obtain an organization chart of an agency,
let alone a description of what various departments did,
the names and telephone numbers of staff, or copies of laws
and regulations in effect--the current openness in government
information available online and the additional disclosure
requirements of the provisions are nothing short of revolutionary.
The
provisions also require agencies to notify persons in advance,
and after a decision is made, of administrative actions
concerning those persons in particular. The notice must
include the name of the agency concerned; the procedures,
basis, and reasons for making the decision; the decision
itself; and the means and time period during which the person
can take remedial action, if desired.
As
for other types of information or information that should
have been disclosed in the ordinary course of managing or
providing public services but was not, citizens can file
requests for disclosure. The relevant government agency
must normally comply within 15-30 business days, depending
on the type of information involved. One Guangzhou official
illustrated the utility of this request procedure, noting
that many Guangzhou citizens are now buying homes and want
to know the development plans for various districts in the
city where they are contemplating a purchase. Under the
provisions, they can ask to see these and, if the government
agency refuses to comply, they can turn to the courts for
enforcement or seek administrative reconsideration.
The
provisions further establish another new right: the right
of any person to see information concerning himself or herself
that a government agency possesses, as well as to request
correction of any errors or inaccuracies in such information.
Individuals have not had the right to review their personnel
files, for example. This right is important to help establish
the concept of and to protect privacy rights. The ability
to correct personnel file information compiled by government
employers is increasingly important as citizens seek to
change jobs and as China begins to establish a credit reporting
system that applies to consumers as well as to companies.
Unfortunately, the provisions do not spell out time periods
for correction or specific remedies if the government agency
does not comply with the request. Nonetheless, the very
articulation of this right is an important landmark.
Exceptions
The
provisions set forth some general categories of information
that are not subject to disclosure, including private information
about individuals, commercial secrets, state secrets, information
regarding matters under deliberation, and the catch-all
categories of information relating to "social and public
interests" and "other government information prohibited
from being made public by law or regulation." One goal
of international legislation in this area is to specify
as precisely as possible the scope of necessary exceptions
to the rule of openness, so as to prevent them from becoming
huge loopholes for government nondisclosure. In China, the
concept of a "commercial secret" has been under
development for several years, although the precise contours
are not yet well defined. But notions of individual privacy
or the protection of personal data, nowhere clearly expressed
in law, remain to be fleshed out (see The CBR, July-August
2002, p.36), and the determination of what constitutes a
"state secret" is relatively broad under existing
legislation and practice. Public health information--including
information about diseases not yet listed as a contagion
that should be announced to the public--is, for example,
treated as a state secret under existing legislation. Certainly,
the category of "social and public interests"
also begs for clarification.
Public
participation in decisionmaking
Another
major innovation of the provisions is that of announcing
"matters affecting important interests of individuals
or organizations or that have a major social influence"
before they are finalized and implemented for public input.
Though the text of the article is unclear on this point,
commentary about it by officials involved in drafting the
provisions suggests that the "matters" include
draft rules as well as policies and administrative decisions.
The responsible government department is to publicize the
proposed regulation, policy, or decision and its justification
and make the final decision only after seeking "sufficient"
public opinion and adjusting the proposal as appropriate.
The concept, again, is revolutionary, but conforms to recent
Chinese Communist Party calls for greater public participation
in government affairs. Most of the media reports on the
promulgation of the provisions praise this article, anticipating
that it will permit "ordinary people" to participate
in government decisionmaking and make governance more transparent
and democratic.
Specific
procedures on how to implement an advance disclosure system,
which might include notice and comment procedures, advisory
committees, and public hearings when called for, need to
be worked out. Guangzhou might well look to the example
set by the Shantou municipal government, also in Guangdong,
which published its draft Open Government Information (OGI)
Provisions on its website for public input. During a comment
period of 14 days, comments could be directed either to
the specified Shantou official at a given address or by
e-mail. Shantou promulgated its OGI provisions, which are
modeled generally on those of Guangzhou, with some substantive
revisions made after initial publication on April 11, 2003.
Implementing
openness
Under
the provisions, "agencies in charge of openness in
government affairs" implement the OGI system, and the
legal agencies and supervisory departments supervise implementation.
Reportedly, the Guangzhou municipal government has formed
an Open Government Affairs Leadership Small Group (headed
by the deputy mayor), the business office of which is located
within the municipal government's powerful General Office.
Presumably, this is the "agency in charge of openness
in government affairs" in Guangzhou. The creation of
new, specially designated and empowered institutions, independent
of the bureaucracy holding the information, to implement
the provisions might seem a preferable approach if Guangzhou
wants to show it takes these new rights and obligations
seriously. But new agencies require additional personnel
and budgets, and by making use of existing entities, Guangzhou
could move quickly to begin putting the new system in place.
The
provisions require the relevant supervisory agencies to
conduct periodic investigations, evaluations, and "democratic
discussions" of; establish telephone and e-mail "hotlines"
for citizen complaints about; and periodically appraise
and assess the implementation of the OGI system at various
levels of government.
Remedies
Those
who are unhappy with a decision on making government information
public have the right to request reconsideration, bring
a lawsuit, or request compensation in accordance with the
law. The provisions further stipulate that those who suffer
economic injury because a government agency conceals information,
provides false information, or reveals commercial secrets
or private information concerning individuals should be
compensated by that agency. The basis for civil recovery
probably needs to be clarified before the courts will actually
accept cases. Since Chinese law does not provide for any
rights to information, or a "right to know," Chinese
civil courts may, if past experience is any guide, feel
uncomfortable dealing with uncharted new areas of law created
by municipal-level rules before national legislation on
the subject.
Toward
greater openness
The
Guangzhou provisions are an important first step on the
road to a national open government information law and a
broader system that empowers China's citizens to participate
in the governance of their own lives and country. The provisions
create new rights-the "right to know" and the
right of access to government information. They fall short
of what the national draft OGI regulations reportedly attempt
to do-create new institutions to enforce these rights, such
as a chief information officer or information commission
to oversee implementation and handle complaints and a registry
of information in an agency's possession. But as local legislation
the Guangzhou provisions already face a considerable uphill
battle in implementation, as vividly demonstrated by the
recent struggle to obtain disclosure of accurate information
about SARS, which is believed to have originated near Guangzhou
and was initially treated as a state secret.
Public
health crises lead to their own particular balancing of
interest challenges around the world, but the SARS crisis
revealed the depth of the problem of getting Chinese officialdom
to share information fully and in a timely manner. Guangzhou
and Guangdong provincial officials deserve praise for having
held unprecedented press conferences to update the public
about the disease within days of initial rumor-driven panic
in February. Guangzhou's pioneering first legislative step
to change an ingrained culture of secrecy also merits praise.
It is important in and of itself and, in a country where
local experimentation is often the precursor to national
legislation, suggests that the central government may well
soon follow.
Guangzhou
Municipal Provisions on Open Government Information
(Decree No. 8 of the Guangzhou Municipal People's Government
dated November 6, 2002) (PDF - 158 KB)
Reprinted
by permission from the July-August 2003 issue of China
Business Review
Jamie
P. Horsley is associate director of The China Law Center
and senior research scholar and lecturer-in-law at the Yale
Law School. She lived and worked in China for 15 years as
a lawyer, diplomat, and corporate executive and has written
and lectured extensively on legal and other developments
in China.
Back
to top
|
