The First Challenge to a FOI Decision in Shanghai

The First Challenge to a FOI Decision in Shanghai

The first challenge to a FOI decision in Shanghai was happened only ten days after the city bringing into effect its Provisions on Access to Government Information (the Shanghai FOI Provisions) on May 1, 2004. On May 10, 2004, Mrs Dong submitted her request[1] to the Shanghai Xuhui District Real Estate Bureau (the Bureau) for the registered information related to the archived information of her father purchasing the property and then takeover by the government during the period of September 1 1947 to July 16 1968. The owner aimed to seek sufficient evidences for her civil case. The bureau replied in writing and asserted that Mrs Dong had no right to know the information as she was not the owner of the property which originally belonged to the foreigner and then taken over by the government. Mrs Dong was not satisfied with the reply and appealed it to the Shanghai Xuhui District Court to review this refusal and require disclosure the information requested. After a trial in public, the Xuhui District rejected the plaintiff’s claims. The plaintiff refused to accept the judgment and filed an appeal to the higher level court, that is, the Shanghai No.1 Intermediate People’s Court. In this trial, the Shanghai Xuhui District Real Estate Bureau argued that the information requested by Mrs. Dong did not exist. Accordingly, it was not necessary for the court to decide whether the information requested by the plaintiff should be disclosed or not and affirmed the original judgment and rejected the appeal on August 1, 2004.
Many issues have been raised in this case and it deserves attention. Firstly, there is a conflict between the laws in Shanghai. One of the arguments presented by the two parties was whether the case should be subjected to the Shanghai FOI Provisions published on December 31 2004 or the Shanghai Interim Provisions on Disclosing the Registered Information of the Real Estates (the Shanghai Interim Provisions) passed on July 29 1998. Both of them were drafted by the Shanghai Office of Legislative Affairs and stipulate the right of access to the information held by the government agencies. The Shanghai FOI Provisions is for the general right of access any information, but the Shanghai Interim Provisions is for the right to know special information. There are no requirements for the requester to provide grounds to the government agencies for disclosing information in the Shanghai FOI Provisions (Article7). However, the Shanghai Interim Provisions on Disclosing the Registered Information of the Real Estates requires the requester to provide the Owner Certificate for the property and proof of identity (Article 9).
According to Article 82 of the Law on Legislation of China, these two Provisions belong to the administrative rules[2] and enjoy the same legal authority. Article 83 of this Law requires that if a special provision differs from a general provision, the special provision shall prevail; if a new provision differs from an old provision, the new provision shall prevail. The provision in the Shanghai FOI Provisions is newer than that in the Shanghai Interim Provisions, while the provision in the latter is the special one and that in the former is the general. This lawsuit raises a difficult question to the court and it is hard to decide which Provisions should be applied to. There is a clause in the Law on Legislation of China which requires that in the case of difference between the new general provision and an old special provision enacted by the same agency, the enacting agency shall make the ruling (Article 86 (1)).
The plaintiff asserts that the case should be treated according to the Shanghai FOI Provisions and the reason provided by the Bureau did not fall into the six exemptions allowed in this FOI Provisions which include state secrets, business secrets, privacy, deliberations, law enforcement and other information required to keep secret by other acts. While the respondent argues that the case should be handled according to the Shanghai Provisions on Disclosing the Registered Information of the Real Estates. The requested information should not be disclosed to the requester as Mrs Dong is not the owner of the property.
The conflict is not necessary if the government has a positive attitude to handle the applications. They can decide which legislation is the better one to benefit for the requesters and make information available to the requesters as wide as possible. In this case, the FOI Provisions will be better to protect the requester’s interest as it does not require the requester to provide reasons for the request. Besides, the conflict can be solved if the requester posits the FOI Provisions in her application.
Secondly, the reason of third party information has been used by the government to refuse the requester to obtain the information. Article 14 of the Shanghai FOI Provisions requires that if the government information requested to be provided might influence the rights and interests of a third party, unless the third party has already undertaken to agree in writing with the government agency to disclose it, the government agency should seek in writing the third party’s opinion. If the third party does not reply within the request period, it shall be deemed to have not agreed to provide the information. Accordingly, the Bureau argued in the trial that even if the case was handled according to the Shanghai FOI Provisions, Mrs. Dong would not have such right to know the requested information as the information requested will affect the third party’s interest. The Bureau had notified the current owner of the property, the third party whether the company will agree to disclose the registered information, but the company did not reply in three days which can be deemed to disagree to provide the information.
Thirdly, the government changed its reason for refusing the request after the trial. At first, the government argued that there is no right to know the information requested by the requester as she has no interest to the property, only the owner can request the information. Then on appeal at the higher level of court, the government argued that no information existed in the archives. The case appears to have motivates the government to actively check its records, whereas originally it applied to have adopted an automatic policy of denying access.
[1] The request is sent by the lawyer delegated from Mrs. Dong, and the lawyer just headed into the Bureau and asked the information, but did not tell the officials it was a FOI request according to my understanding from the new reports.
[2] In China, the constitution enjoys the highest level of authority, followed by the act. Regulation has the third level of legal authority which should not override the act and the administrative rule enjoys the fourth level of legal authority. "> " title="permanent link">#