The Improved Information Environment: One Key Rationale for FOI Reform in China

This paper examines the influence of the improved Chinese information environment, which comprises four streams of information flows: information flow within the government/the supply side, information flow within the public/the demand side, push/proactive disclosure, pull/reactive disclosure, on China’s capacity to accept Freedom of Information (FOI). It compares different information management approaches to crises taken by the Chinese government over time, and argues that without the improvement of the information environment due to the formation of multiple paths for information flow, the Chinese government would have been unlikely to be receptive to FOI reform.

China’s limited push model of FOI legislation

This paper examines China’s Freedom of Information (FOI) Regulations. It argues that China has adopted a push model of FOI legislation that emphasises proactive disclosure of government information. The push model of FOI legislation grew out of two decades of limited proactive disclosure practices around the country and an improved information environment resulting from the formation of multiple paths for information flow. However, the degree of push or proactive disclosure under China’s current FOI Regulations is undermined by several factors, including a limited access mechanism, broad and vague exemptions and omission of the maximum disclosure principle.

Chinese citizens: primarily for information that involves their immediate interests

During the first six months of implementation of the FOI Regulations, Chinese citizens used FOI legislation for access to the following five main categories of government information, all closely related to their immediate interests. First, they applied for information to examine whether or not their interests had been violated. This occurred primarily in three areas: enterprise restructure, house demolition and land use. Given China’s rapid marketisation and urbanisation in the last three decades, this is hardly surprising. Second, Chinese citizens used the FOI Regulations to better understand their personal legal matters, such as pending criminal and civil cases. Third, they filed access requests to learn more about how government agencies processed their business affairs. Fourth, they asked for historical records to solve their outstanding issues with the government, such as housing takeovers before and during the Cultural Revolution. FOI legislation provided an indirect opportunity for individuals aggrieved by the enforced takeovers to seek protection for their private property. Fifth, Chinese citizens requested information on their personnel files in order to claim benefits from the government (Table 1).

Legal professionals: major requesters of public information

During the first six months after implementation of the FOI Regulations, Chinese legal professionals were the most frequent requesters in China (Appendix 1). Their requests have the following four features. First, a wide range of legal professionals, such as lawyers, law academics and students, used FOI legislation to access government information. In particular, Chinese lawyers showed special interest in requesting information. Second, their requests were primarily for information in the public interest. The information sought covered a wide range of areas, such as the use of charges and public funds, and the exercise of administrative power. Third, legal professionals played an educational role in promoting information access. Professor Xixin Wang and his colleagues aimed at boosting the use of FOI legislation through their requests. Hongxiang Wen, a Shenyang lawyer, said that his requests were largely for teaching ordinary citizens how to request government information. Fourth, legal professionals understood how to work closely with media outlets in reporting the progress of their requests, thus bringing about a maximum propaganda effect.
Chinese legal professionals have an advantage over other groups when using FOI legislation. They have greater professional knowledge as they are likely to know which information is needed and which government agency holds the information, as well as how to use FOI legislation. They, especially lawyers, are also wealthier and more independent than other groups, and so have greater capacity and willingness to request public information. The use of FOI legislation by Chinese legal professionals is a positive response to the impetus of law-based administration for FOI reform in China, though they may use FOI legislation as part of their private commercial lawsuits. However, the use of FOI legislation by legal professionals is largely individualised. It is necessary to initiate a coalition of active FOI requesters to apply for public information in the future.

Freedom of Information Reform in China: Information Flow Analysis

28 September is the right to know day. I share my thesis abstract with all of you. Any comments are welcomed. Cheers.

Thesis Title: Freedom of Information Reform in China: Information Flow Analysis

Abstract:

Most non-Chinese scholars have approached Freedom of Information (FOI) in China as a recent, strange and intriguing phenomenon. This thesis uses an array of Chinese sources, interviews with Chinese officials and citizens and information flow analysis to propose a more complex and detailed understanding of the evolution of FOI in China.

The thesis argues that information flow, a theme to explore the gradual development of government receptivity to FOI in an information environment through time, can be used as a new explanatory model for FOI reform in a jurisdiction. China serves as an example to substantiate this argument. The origins of China’s FOI legislation need to be understood within the context of improved information flow resulting from changed social, political, legal and economic conditions. This improved information flow has constituted an enabling environment for the adoption of FOI legislation.

This thesis also argues that it is necessary to reassess the widely divergent origins of FOI reform in China. By applying information flow analysis, the thesis asserts that social, political and legal factors should be accorded central roles in understanding the development of FOI in China. Economic growth and anti-corruption efforts in the process should be allocated important but secondary roles.

This thesis uses information flow analysis to find that FOI reform in China formed part of a much longer process of increased transparency in the Chinese information environment, which gradually shifted from the acceptance of proactive disclosure to that of reactive disclosure. FOI thus has become a beneficiary of this gradual transformation of the Chinese information environment. This is the reason that China has adopted a push model of FOI legislation stressing proactive disclosure of government information, which differs from many countries that have introduced a pull version of FOI legislation emphasising reactive disclosure through responses to access requests.

The thesis maintains that existing compliance analysis focuses too heavily on reactive disclosure, and thus is restricted in its application to China. It therefore utilises a revised compliance analysis model that focuses on both proactive and reactive disclosure. The revised model incorporates findings from empirical research conducted in China, allowing a more effective and dynamic analysis of compliance issues in China. Whilst information flow analysis in this thesis is limited in its application to an explanation of China’s FOI phenomenon, it may have wider applicability. This analysis is a dynamic and systematic explanatory framework for FOI.

Chinese State Agencies' Responses to FOI requests

Among the 22 state central agencies’ annual reports, 8 agencies’ reports did not provide the particulars of responses to information requests. The details in 14 agencies’ annual reports were very clear with the exception of the National Development and Reform Commission’s report. The 14 annual reports indicated that rare information requests were rejected for the reason that the information sought fell into the statutory exemptions set out in the FOI Regulations. A few requests were refused due to ‘other reasons’ which include withdrawal of requests, petitions and others.

Note: the Ministry of Civil Affairs may have made an error in calculating the total.

Only one applicant took a state central agency to court in 2008

According to the 22 central agencies' annual reports, there is only 1 FOI lawsuit. The number of applications for administrative reconsideration is much higher than that of lawsuit, but the figure is still very low, only 12. For detail information, see the statistics.

Another two provincial FOI annual reports are available now

Jilin and Hainan Province published their FOI annual report on their government websites. The number of access requests came as a surprise. Government agencies in Jilin Province located in Northeast of China,received 45992 requests, the largest number among other provinces in 2008. In contrast, government agencies in Hainan Province based in South of China received none of requests in the previous year. This is quite different from their climate. Jilin is a cold climate, and Hainan is a hot one.

Another 31 State Central Agencies' FOI Annual Reports are Available in China

Another 31 state central agencies’ FOI annual reports are available now. According to these 31 annul reports, the State Administration for Industry and Commerce received the largest number of requests in 2008, amounting to 2778. Among these 31 state agencies, 2 agencies’ total number of requests is not available, and other two agencies’ figure of information requests are inaccurate as it includes the number of consultation.Three agencies did not receive any requests in the previous year. See the table for more detail.

Note: will provide the details of agencies' decisions on information requests in the future.

Shanghai: a key local forerunner of FOI in China

In 2009, the Shanghai government was committed to making it one of the regions with the highest transparency across the country. It determines to establish a push model of FOI which takes information requests as a last resort. The Hunan government, which is based on a comparatively developing area, is also keen to the push or proactive disclosure way, but it acknowledges that this way can help it focus more on other more urgent tasks in its locality.

Source:Suggestions on Further Strengthening the Work of FOI in Shanghai No20 [2009]of the Shanghai Government; The Hunan Government, Freedom of Information Regulations 2007 Annual Report 2008.

FOI Annual Report for 27 ministries and commissions under the State Council

There are 27 ministries and commission under the State Council. 5 Ministries’ FOI Annual Reports have not yet available. Between the date of commencement of the FOI Regulations on 1 May 2008 and 31 December 2008, a total of 890 requests were received by the 22 ministries and commissions. The National Development and Reform Commission received the largest number of requests in 2008, amounting to 411. Agencies’ share of requests falls sharply after the top one. Only the Ministry of Justice did not receive any FOI requests in the past 2008.

Note: will provide other agencies under the State Council in the immediate future

Governmental Responses to FOI Requests in China

The 15 provincial FOI annul reports show that only a small number of information requests fell into the category of the statutory exemptions. About 10% and 5 % requests were rejected due to the statutory exemptions in Beijing and Shanghai respectively, representing the two largest one among other provinces. Most of requests were refused because of the reason that the information sought did not exist or was not under the possession of the agency.

The Number of FOI Review in China

Between 1 May 2008 and 31 December 2008, 881 applications were made for administrative reconsideration or internal review of agency decisions on access requests in 17 provinces. 307 FOI lawsuits were lodged with the Chinese courts in these provinces. Most of applications for administrative reconsideration and lawsuits occurred in Shanghai, 683 and 258 respectively. The number of complaints about FOI matters was only 26.

88,056 information requests received by the 15 provinces in China

Among 17 provincial governments’ FOI annual reports, only 15 reports provided particulars of the use of FOI legislation. The Sichuan government has had a passionate interest in implementing FOI legislation, proactively disclosing much more documents than other provinces in 2008, amounting to 27,662,645. Three provinces received more than 10 thousand access requests, including Yunnan (17955), Shangdong (16368) and Henan (15749). There was an extremely low use of FOI legislation in Gansu province, only receiving 6 applications. There were 88,056 information requests received by the 15 provinces between 1 May 2008 and 31 December 2008.

FOI annual report in China at the province level (2008)

By 17 April 2009, there were still 5 provinces, including Shanxi, Hebei, Xinjiang, Qinghai and Guangxi which had not publicized their FOI annul reports on the Internet. While 7 provinces made their FOI annual reports public, they only produced a specific report which only covers details of the General Offices of the Provincial Government. The Guangdong government, a pioneer city which adopted the first FOI kind legislation in China in 2002, came as a surprise because it did not compile a general annual report for the whole province. The rest (19) provincial governments generated their annual report covering particulars of all departments in their own administrative areas.

More details about the use of FOI legislation will be available in the coming future.

Note: Red circle for a general annual report; Blue circle for a special annual report. The rest, excluding Hong Kong, Macao and Taiwan, without circle.

The first FOI Case supported by the Chinese courts

After the FOI Regulations went into effect, Xu Jianguo, a Beijing lawyer, filed a request dated 1 May 2008 to the Huangzhou District Bureau of Transport for some proactively disclosed information concerning this Bureau’s structure, function and working procedures. The Bureau did not answer Xu’s request, and thus he brought it to court on 2 June. The court judged that the Bureau’s mute refusal was illegal, and this judgment became the first FOI lawsuit which was supported by the court after the FOI Regulations went into effect in China. The Hubei Provincial Legislative Affairs Office thus issued a bulletin to inform all government agencies of this non-compliance, calling on government agencies to comply with the Regulations. One of the officials in this Office questioned ‘why should the agency not disclose the information until the masses take you to court?’ This bulletin may create positive effects on enforcement of FOI legislation.

source: Doudou Tian, ‘The Government Agency Lost its FOI Lawsuit for the First Time’ People’s Daily (Beijing) 10 October 2008, 10.

The first FOI case supported by administrative reconsideration agencies

A significant case occurred after the FOI Regulations went into effect. On 26 May 2008, Xu Yaofang and 67 other villagers filed a request to the Yuyao Government in Zhejiang Province for information regarding land transfer in order to know more details about the transfer of approximately half of the total lands of their village. After they did not get any response from the Yuyao Government, they lodged an application for administrative reconsideration with the Ningbo Government which required the Yuyao Government to handle this request in accordance with the FOI Regulations.

Source:　Junxiu Wang, ‘68 Villagers in Yuyao City of Zhejiang Province Win their FOI Lawsuit’ China Youth Daily (Beijing) 10 October 2008, 6.

A significant increase in the number of FOI lawsuits in Shanghai

The number of administrative reconsideration and lawsuits has increased significantly during the last five years. In 2008, 683 applications were made for administrative reconsideration of agency decisions on access requests, 100 more than the total figure of the last four years (2004-2007). There were 258 applications for court review of decisions concerning access requests, 1.5 times as many as the total number of the previous four years (2004-2007). The number of complaints about FOI matters received by government agencies administering FOI work was not available in the 2008 report. However, previous reports indicated that this number should be much higher than that of last year. The 2008’s annual report also showed that government agencies spent 57.5 thousand yuan (about $84 thousand) on litigation. The improvement of public awareness of FOI legislation may have contributed to this significant increase.

Shanghai: the Significant Decrease of the Percentage of Revoking Agencies' Original FOI Decisions

Under the Shanghai FOI Rules, an applicant who is dissatisfied with the decision of an agency on his or her initial FOI request can apply to the next higher agency for administrative reconsideration. In 2008, the Legislative Affairs Office of Shanghai received 365 applications for administrative reconsideration, and accepted 352 applications. This Office made 350 decisions on administrative reconsideration, with 28 (8%) of those decisions reversing the original decisions, decreasing 3.3% from last year (11.3%). During the last five years, the percentage of revoking the original decisions has fallen dramatically from 46.2% (2004) to 8% (2008), indicating that FOI general officials have improved their professional knowledge about the Rules and quality of service for access requests.

The Comparison of the Last Five Years of Information Requests in Shanghai

Between 1 May 2004 (the date of commencement of the Shanghai FOI Rules) and 31 December 2008, Shanghai government agencies received a total of 44,670 access requests. The following Chart shows the total number of requests for each year since the commencement of the FOI Rules in 2004. It should be noted that in 2004 the FOI Rules operated for seven months only. In 2008 a total of 9,388 requests were received, an increase of 2,903 (44.77%) from 2007. The requests in 2008 reached the second highest annual figure, although it was still much lower than that in 2005 (12465).

FOI Annual Report in Shanghai (2008)

Shanghai government agencies received 9388 requests in 2008. 9027 requests were determined in this year, of which, 5320 (58.9%) were granted in full, 287 in part (3.2%) and 2918 (37.9%) wholly refused. Of these refusals, 972 were refused on the basis of wrong agencies approached, 1028 were refused due to the non-existence of information, and 465 were rejected because of unclear requests. The information requested by 343 applicants did not fall into the definition of information under the Shanghai FOI Rules. Only 502 requests fell into six legitimate FOI exemptions. The exemption of state secrets, amounting to 304, has been frequently claimed by government agencies during this year.
The rest were refused because of commercial secrets (32), personal privacy (8), deliberations (61), social stability (14) and other reasons (83).

FOI annual report in China

On 31 March, the General Office of the State Council promulgated its first FOI annual report. The report covers particulars of proactive disclosure, FOI training and survey and others. Two important things mentioned in this report are an FOI directive, titled Several Suggestions on Implementation of the China’s FOI Regulations (No.36 [2008] of the General Office of the State Council), and a standardized information inventory. The report does not deal with particulars of access requests. This is because the ‘Several Suggestions’ notice excludes the General Office of the State Council, at the present stage, from the coverage of receiving information requests, although the scope of FOI Regulations extends to government agencies at all levels.

In addition, it seems that we cannot see a comprehensive FOI annual report at the national level. Basically, each government agency makes its own report public. Several government agencies published their annual report before the due date, such as the Ministry of Environmental Protection and the Ministry of Public Security.

FOI in China: A comparative analysis

Abstract
Most non-Chinese writers have approached Freedom of Information (FOI) in China as a relatively recent and ‘strange and intriguing phenomenon’. This study used an extensive array of Chinese sources, interviews with key Chinese officials and academics, and comparative analysis to propose a more complex and detailed understanding of the evolution of FOI in China.

This thesis suggests a rearrangement and reassessment of the many drivers of FOI reform in China. In particular the thesis recommends that democratisation and administrative law reform should be given a more central role in understanding the development of FOI in China, and the roles of informatization and anti-corruption in the process be reassessed and allocated important but more secondary roles.

Gradualism has been the hallmark of administrative law reform in China and FOI legislation has been no exception. This gradualism explains the government’s adoption of a more pragmatic and limited model of FOI legislation where the focus is on forming institutional processes of proactive disclosure, rather than significant and relatively unrestricted access to government information.
The prospects for effective FOI reform, measured by the standards advocated by international NGOs and multilateral institutions, appear fairly limited and inaccurate in China in the foreseeable period. Whereas most of the existing literature, especially non-Chinese writers’, has treated the FOI phenomenon as a paradox or is dismissive of its long term capacity for effective reform, this thesis treats it as part of a longer term and significantly wider political and law reform process.