China's transparency is just thin air
By Owen Fletcher
BEIJING - May's arrival this year armed Huang Youjian for a short-lived fight
against the government.
Huang, a retiree from Rucheng county in the southern province of Hunan, saw a
local government report last autumn that revealed a possible corrupt deal
involving his former employer, the county waterworks. Millions of dollars in
investment appeared to have disappeared in the state-owned enterprise's partial
privatization.
Huang demanded that the county authorities make the report public. They
refused.
So, when China's first national regulations on government information openness
took effect on May 1, Huang filed a case
with the county court. He requested that the authorities be ordered to disclose
the report's contents.
Four months later, the report remains confidential. Both the county court and
an intermediate city court rejected Huang's case. Huang appealed to the Hunan
High Court in June. He is still waiting for a response.
With cases like Huang's hitting dead ends around the country, China's new
regulations on information openness appear to be making little mark on a
government unprepared to concede rights to citizens.
The disclosure regulations that took effect in May are based on a State Council
ordinance. They require government bureaus at all levels - township, county,
provincial and national - to proactively publish information that affects the
"vital interests" of citizens. If citizens seek information not yet published,
they can request its release from the appropriate government bureau. Like
Huang, citizens can also file for judicial involvement if they believe the
government has illegally withheld information.
The new regulations' request function has been widely used, at least in urban
centers. Chinese media reported a "wave" of information requests in the days
after the regulations took effect. In two months, the Beijing municipal
government received 520 formal information requests and 25,000 other inquiries.
The range of information requested has included personal documents, maps of
public construction projects and government spending records. In Anhui province
in May, lawyer Yan Yiming used the regulations to ask the Fuyang city
government why it waited four weeks to report an outbreak of hand, foot and
mouth disease, a human syndrome caused by intestinal viruses. Zhu Fuxiang, a
resident of suburban Beijing, requested a copy of his township's report on the
environmental effects of a development project.
But public interest has not been met with government enthusiasm. Local
bureaucracies have responded to information requests with vague or irrelevant
answers. In response to Zhu's request to see an environmental report, Beijing's
city planning commission sent him only design standards for the buildings. When
Zhu later requested information from his township about how two buildings there
were used, the government told him the information did not exist.
Some applicants for information have also been asked to provide the
identification numbers of the specific documents they seek - an impossible task
since such documents are kept secret. A second application Zhu made to the
Beijing city planning commission was rejected because he could not provide
document numbers.
In the case of Huang, the retired worker, local officials have argued that the
report he wants made public does not fall under the scope of the information
disclosure regulations. Officials elsewhere have dodged information requests
simply by claiming that the desired content contains "state secrets", a large
loophole in the May ordinance.
"We have not yet fully addressed the relation between open information and
protecting secrets, because when citizens go to apply for the opening of
information, the government can say, 'This is a state secret, this is a
commercial secret'," Wang Xixin, a professor of law at Peking University, said
in an interview. "How do you define within the system what a state secret is,
what a commercial secret is?"
Indeed, the May ordinance gives officials little incentive to embrace
transparency. While the regulations broadly encourage publishing government
information online, on television or in newspapers, they also sweepingly
prohibit releasing information that could endanger "national security, public
safety, economic security or social stability". The regulations also allow for
punishment if agencies release information "that should not be released" -
subject to interpretation by higher-ups in the bureaucracy.
Despite all this, it seems many local government bureaus have taken initial
steps to comply with the openness regulations. Government web portals now
commonly feature sections dedicated to "government information openness". As
required by the regulations, they explain how to submit an information request
and provide databases of information already made public. Contact information
for government agencies has also become easier to find online. One by one,
lower-level governments are releasing their own versions of the national
regulations.
Local government bureaus have been most forthcoming with environmental
information, an area where the State Council has been pushing them for years.
When the State Council announced the open information regulations last year,
China's Environmental Protection Ministry became the first bureaucracy to
release supplementary guidelines.
The central government's environmental campaign has been partly successful. Ma
Jun, director of the non-profit Institute of Public and Environmental Affairs
in Beijing, said government websites have increasingly published pollution data
and information on environmental policies in recent years. Another jump in the
amount of information online occurred after the May ordinance took effect this
year, Ma said.
The vast majority of information released on government websites, however, is
useless to citizens. Sensitive information is unlikely to appear online, and
what information there is can be very much unorganized.
"A lot of the information we have opened now is old, outdated, rather
incomplete information," said Wang, the law professor. "If regular people go to
look for information, it will be very difficult," he said.
In any case, voluntary information release is by far the less important half of
the openness regulations. Internationally, says Jamie Horsley, deputy director
of the China Law Center at Yale University. "The request function from the very
beginning has been seen as the heart of an information regime," she said.
Government bureaus have answered many information requests. A report by the
Shanghai municipal government, which piloted a trial version of the open
information regulations beginning in 2004, says the city agreed to release the
information in almost 70% of requests in 2007.
China's main problem, observers say, is the lack of an independent body to
enforce implementation and rule in disputes. In Western countries with
information disclosure laws, independent courts have served this purpose.
Chinese courts, though, are subordinate to both the Communist Party and the
relevant people's congresses, the lawmaking bodies at various levels. They are
authorized only to enforce the law, not to make or interpret it.
China's courts are therefore hesitant to handle cases with little precedent. It
was not until late July that a court in Hefei, Anhui province became the first
in China to accept a disclosure case against a provincial government. And no
Chinese court has yet ordered a government bureau to release information in
keeping with the May ordinance.
Very few courts have accepted disclosure cases at all. When Huang Youjian filed
his suit with the Rucheng County court in Hunan, the court said the case was
beyond its jurisdiction. When Huang appealed to the intermediate court, a judge
told him the court required guidance from the provincial high court and the
national Supreme Courts before it could decide whether to accept the case.
Many courts have sought such guidance. In response, China's Supreme Court is
drafting guidelines on disclosure cases that Wang, the law professor, estimates
could be released for reference by lower courts late this year or early next
year.
Even with instructions in hand, however, courts may be reluctant to favor
information openness. As administrative regulations - not a law - the May
ordinance does not grant citizens new rights, and so citizens still lack the
right to know. Cases that invoke the new regulations are technically brought
under other administrative laws.
As has been true in other countries, it will take time for disclosure rules to
gain strength and acceptance in China. But unless stronger enforcement is put
in place, the regulations could become meaningless.
"The freedom of information regulation, it looks pretty good on paper. But like
many laws in China that look pretty good on paper, the problem comes with the
implementation," said Phelim Kine, an Asia researcher for New York-based Human
Rights Watch.
Still, said Kine, the disclosure regulations are a step forward. "Any moves
toward greater transparency that allow Chinese citizens to better access the
rights that are given them in the constitution - that's a good thing," Kine
said.
Owen Fletcher is a freelance journalist from the United States. He can be
reached at owenfletcher888@gmail.com.
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