Professor John Taylor's Comments on My Article within Information Polity

The papers in this edition provide further testament to the international standing of Information Polity. This edition contains five papers, authored by academics from five different countries: China, Costa Rica, Slovenia, Norway, and Turkey. In the first of these Weibing Xiao argues that the expansion of ‘information pathways’ in China, brought about by the widespread and growing adoption of new media, has brought the Chinese government intomore receptivemode in terms of the adoption and acceptance of ‘freedomof information’. The necessity of releasing information during physical disasters and social and political crises has broadened to a more general acceptance that much more information can and should be made available to Chinese citizens. Citing a number of Confucian aphorisms such as ‘the common people may be made to follow, but may not be made to know’, Weibing Xiao explains the long history of State secrecy in China as a consequence of the influence of the greatest of Chinese philosophers. The movement towards Freedom of Information sat in stark opposition to a philosophical conviction that the common people are best protected from learning about issues of governance including crises. Now in the era of new media uptake, as Weibing Xiao explains, the release of information hitherto kept secret works as a necessary social corrective to what emerges as forms of ‘rumour’. Rumour, it is now argued, is potentially far more damaging to governance of the nation State than more open flows of information. Additionally, and in a more general sense, flows of information are more developed in China now both amongst citizens and between them and government. Thus there is an environment in China that is moving strongly towards the release of information rather than its secretive capture and management.

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.

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.

Public interest test in three countries' FOI legislation

A general public interest test was adopted in New Zealand FOI legislation, while only a special public interest was adopted in those of Australia and China. In New Zealand, the general public interest test seems to be mandated in respect of every release. In most cases a balancing process is required only with a few exceptions. [1] A special public interest test exists in Australia and China. In Australia, a pubic interest test is applied to five exemptions: relations with states, financial interests of the Commonwealth, internal working documents, financial documents, and documents related to operations of agencies. However, in China, this test is only applied to privacy and trade secrets exemptions.

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[1] Judith Aitken, ‘Open Government in New Zealand’ in Andrew McDonald and Greg Terrill (eds) Open Government: Freedom of Information and Privacy (1998) 117, 124.

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The comparative study of FOI is needed

According to Snell, the comparative study of FOI is ‘relatively unexplored’ around the world.[1] Snell also calls for ‘[t]here is an urgent need for academics, postgraduates, government officials and NGOs to develop comparative studies in this area which include, but extend beyond, singular case studies or collections of case studies’. [2] However, Snell examines that few scholars have created good comparative tools to help ‘cross-jurisdictional analysis’ of a variety of FOI development around the world.[3] Some scholars did a great job in this area. Roberts[4] and Snell[5] developed an administrative compliance model to analyze the implementation of FOI legislation. Lidberg created a monitoring tool to examine five countries’ gap between the promises of FOI legislation and the real practices.[6] The Open Society Justice Initiative also developed an Access to Information Monitoring Tool which provides a way of measuring government transparency and tracking progress in fourteen countries’ implementation of FOI laws. [7] However, these studies miss each country’s history or culture out of their analysis.

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[1] Rick Snell, ‘Using Comparative Studies to Improve Freedom of Information Analysis: Insights from Australia, Canada and New Zealand’ (Paper presented at the 6^th National and 2^nd International Congress on the Right to Information, Mexico, 8-11^th November 2005) 19.

[2] Rick Snell, ‘Is there a Role for Comparative Freedom of Information Aanlysis?: Part 1’ (2004)113 Freedom of Information Review 57, 60.

[3] Rick Snell, ‘Freedom of Information Practices’ (2006) 13 Agenda 291, 300.

[4] Alasdair Roberts, Limited Access: Assessing the Health of Canada’s Freedom of Information Laws (1998) Canadian Newspaper Association at 17 November 2006.

[5] Rick Snell, ‘Administrative Compliance-Evaluating the Effectiveness of Freedom of Information’ (2001) 93 Freedom of Information Review 29.

[6] Johan Lidberg, ‘Keeping the Bastards Honest’ – The Promise and Practice of Freedom of Information Legislation (D Phil Thesis, Murdoch University, 2006).

[7] Open Society Justice Initiative, Transparency & Silence: A Survey of Access to Information Laws and Practices in 14 Countries (2006) Open Society Institute & Soros Foundations Network< http://www.soros.org/resources/articles_publications/publications/transparency_20060928 >at 15 November 2006.

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An Ideal Model of FOI Legislation

According to the Organization for Security and Co-operation in Europe’s recommendations, [1] we can identify that an ideal FOI law should include the clear objective or principle of maximum disclosure. This law should generally gives a general right to anyone to access information in any form from public bodies received public funds or performing public function. Requesters can send any forms of requests, and have a right to choose the format of information provided. Requesters should be treated equally and information should be provided in a timely manner. Fees for requests should be limited to direct costs. Requests filed with an inappropriate institution should be transferred or referred to the correct body.

FOI Refusals must be grounded in law and must be made within the timeframes. Partial access is allowed. There are duties to assist requestors and to publish routine information on a regular basis. Exemptions should be clearly and narrowly defined. Class exemptions should be avoided. Harm and public interest tests are needed. More importantly, FOI legislation should have precedence over other laws. An office or officer should be designated to handle FOI requests. Central coordinating body and an independent oversight body should be established to promote FOI. Review system should not be the burden for requesters in any cases. Sanctions should be available in cases where it is shown that an official or body withholds information in violation of FOI legislation.

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[1] Organization for Security and Co-operation in Europe, Access to Information by the Media in the OSCE Region: Trends and Recommendations (2007)<>at 11 June 2007.

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The Role of Information Commissioner

Functions of an Information Commissioner generally include receiving complaints, monitoring compliance, producing annual reports on FOI legislation, recommending improvements in FOI law and practice, conducting investigations, training public officials, and issuing guidance on how to use FOI law. [1] An Information commissioner is required in FOI law of Canada, Germany, India, Ireland, Mexico and Switzerland. [2]

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[1] David Banisar, Effective Open Government: Improving Public Access to Government Information (2005) OECD<>at 11 November 2006.

[2] Other countries include Angola, Antigua and Barbuda, Hungary, Iceland, Serbia and Slovenia.

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Benefits of FOI

According to James’ observation, there are ten potential benefits which can bring about by FOI legislation, including greater transparency, encouraging public participation in government, enhancing the quality of decision-making by the government, allowing citizens and organizations to assert their rights, raising public confidence in the processes of government, increasing the effectiveness of administration, increasing the accountability of government, safeguarding probity, increasing the effectiveness of the media, and altering the culture of the public service.[1] Other benefits, for example developing economy, also are very important to promote FOI.

[1] Simon James, ‘The Potential Benefits of Freedom of Information’ in Michael Hunt and Richard Chapman (eds.), Open Government in a Theoretical and Practical Context (2006) 17, 19-29.

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Challenges to FOI

Alasdair Roberts in his recent articles ' Open Government: The Challenges Ahead' and 'The Global Movement for Government Transparency: The Challenges Ahead' explores three challenges to open government, including:

The first of these challenges is ongoing official resistance to rules that require increased transparency. The second of these challenges arises from profound changes in the structure of the public sector, which also have the effect of undercutting transparency rules. The third challenge is posed by the advent of information technologies, which will revolutionize the way in which information is stored within government agencies.

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An ideal model of FOI legislation

While there are more than 70 countries that have adopted FOI laws, it seems that no existing FOI legislation is an ideal model for other countries to introduce in the future. Can we provide an ideal model for the world after a comparison of most existing FOI laws. Although there is no way to guarantee that other countries without FOI legislation will adopt this ideal model, this model is helpful in acknowledging missing parts of real FOI legislation adopted in each country.

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FOI and Trust

Take from UK Freedom of Information Blog about FOI and trust discussed by Tony Blair during his monthly press conference:
"So the question for us is how do you then get this more sophisticated and profound dialogue about politics today and political issues, and it is very hard...you know we introduced the Freedom of Information Act. And you would think that people would be saying about the Freedom of Information Act, isn't it wonderful that the government has been so open, or whatever, but it has tended to be whatever. I think the basic problem, and my advice to whoever comes after me from whatever party, is be really careful of this business because I spent a lot of time setting up this notion that somehow by an Act of Parliament, or a new initiative, or a different type of engagement you could get this different dialogue which is the only way to encourage greater trust [Emphasis added], and I think it is a lot tougher.""> " title="permanent link">#

The history of FOI

Freedom of information has been recognized for 240 years. The world’s first FOI law was adopted in Sweden in 1766. Only four FOI laws have been adopted in the last 190 years. After the US adopted its FOI legislation in 1966, three in 1970s and five in 1980s followed the suit. The last sixteen years from 1990 to 2006 has been the most active period of countries adopting FOI laws, 21 and 38 in 1990s and 2000s (only 6 years) respectively Till now, there are about 71 countries with FOI legislation around the world."> " title="permanent link">#

Open government information and access to government information

There are two terms related to FOI which we should clarify their use in China. One is open government affairs or information (zhengwugongkai) refers to government agencies proactively disclose information with their discretion and thereby the scope and timeframe of disclosure are very limited and uncertain. The activities of open government information in china do not guarantee by laws and there is no review system.
The other is access to government information or freedom of information (zhengfuxinxigongkai) includes proactive disclosure by the government and request by the public. Access to government information or freedom of information is allowed by legislation and the review system is provided. Transparency, openness and publicity may be used in this thesis with the similar meaning to freedom of information, except that there is a special illustration. "> " title="permanent link">#

Three Levels of Information Asymmetry for FOI

FOI is one of important mechanism to offset information asymmetry between the government and citizens[1] and thereby the adoption and implementation of FOI legislation will have a strong effect on the degree of information asymmetry between them. In my view, FOI normally can be classified into three levels, including the high, middle and low levels, according to the various degrees of information asymmetry.

The degree of information asymmetry in the high level is higher than the second and third levels. This level just recognizes the relationship between the government and citizens and try to depend on FOI to diminish the influences of the agency shirk. The adoption of FOI legislation is stand-alone and static without considering the impacts of records management and information technology. This level notices the conflicts between FOI and privacy protection, but with little attention. This level normally expects that FOI law can be worked automatically and ignores the importance of its implementation. FOI Statistics is not important and independent oversight authority cannot be found in the legislation. Because of the lack of experiences, the legislation is generally conservative compared with the other levels as the exemptions are broad and no public interest override applied and the coverage is limited. This level of FOI further neglects its use by citizens and thereby citizens bear high cost for information which is not only limited to their money, but also their time and capability as the legislation normally assumes that citizens know where is the information stored and what kind of information they want to request. Information provided is government-centred. On the contrary, the cost for governments is low as they have enough room to pursue their own interests.

The middle level evidences less information asymmetry between the government and citizens than the high level. This level not only recognizes the relationship between the government and citizens, but also citizens’ use. The agency shirk cannot only depend on FOI legislation. The focus on the implementation by the government is also on the agenda. The adoption of FOI legislation is pressured by other factors and linked with other mechanisms, such as records management and information technology. FOI legislation in this level appears to be stronger than the first one as the exemptions are clearly defined and public interest override is applied in the limited circumstances. They notice the problem of implementation and depend on the traditional system to oversight the implementation, rather than a new independent authority. However, citizens still bear high cost for obtaining information as information is provided by governments separately and information provided is citizens-centred. Meanwhile, governments still have room to deviate from the public interest.

The low level is expected to the lowest degree of information asymmetry. This level considers the relationship between the government and citizens, citizens’ use, and the influences among government agencies. FOI legislation is innovative and progressive. Not only the exemptions should be strongly limited and scientifically defined, but also the coverage should be the broadest and defined flexibly. There is an independent oversight authority, for example, information commissioner, to ensure the implementation of FOI legislation by government agencies. Records management and information technology should be maintained and applied to fit for the goal of information available. Citizens’ cost for information should be dramatically decreased based on the application of information technology. There is a strongly requirement for privacy protection as information can be easily sorted by technology. Citizens are not only viewed as citizens with a right to know, but also as customers. Information provided is users-centred. However, the cost for governments increased as their pursuing for private interests can be observed easier than other two levels.
[1] Joseph Stiglitz, “Transparency in Government” in the World Bank, ed., The Right to Tell: The Role of Mass Media in Economic Development (Washington D.C: The World Bank, 2002) 28. "> " title="permanent link">#

Three Generations for FOI

Kubicer carried out a research on FOI and e-government in Bremen and pointed out there were three generations for FOI legislation from the perspective of information technology.[1] The first is a pull generation which needs the interested citizen to go to an office and ask for the document and then pull out for him. This generation is associated with high personnel cost. The second can be called push generation which came out after the advent of internet. The advantage of a push generation is that it dramatically reduces costs by electronic publishing or sending information. As almost all new documents in public administration are produced electronically, it can easily be checked when filing them whether exemptions of the FOI apply or they are indexed and put on the websites.[2] Kubicer argued that the first-generation FOI put the burden of finding the appropriate document providing the desired information completely on citizens. Second-generation FOI changes to the push or publishing made by putting documents on web sites. However, publishing on the websites is not systematic work and indexing is still in the administrative terminology. Third-generation FOI publishes documents on a joint portal of all agencies falling under the law and applying a user-centred indexing.
[1] Herbert Kubicek, ‘Third-Generation Freedom of Information in the Context of E-Government: The Case of Bremen, Germany’ in Georg Aichholzer and Herbert Burkert (eds.), Public Sector Information in the Digital Age: Between Markets, Public Management and Citizens’ Rights (2004) 275.
[2] Herbert Kubicek, ‘Third-Generation Freedom of Information in the Context of E-Government: The Case of Bremen, Germany’ in Georg Aichholzer and Herbert Burkert (eds.), Public Sector Information in the Digital Age: Between Markets, Public Management and Citizens’ Rights (2004) 279."> " title="permanent link">#

Freedom of Information: Transparency Inwards

The directions of transparency can be classified into vertical and horizontal ones. Each classification can be further divided into two subtypes. The vertical transparency includes transparency upwards and downwards while the horizontal one comprises transparency inwards and outwards. According to Heald’s observation, transparency upwards means that the hierarchical superior or principal can observe the actions of the hierarchical subordinate or agent, while transparency downwards can be defined as the ruled observe the actions of their rulers. There is symmetrical vertical transparency when transparency upwards and downwards can co-exist. Transparency outwards occurs when the hierarchical subordinate or agent can observe what is happening outside the organization, while transparency inwards is those outside can observe what is going on inside the organization. FOI legislation falls into the direction of transparency inwards. There is symmetrical horizontal transparency when transparency outwards and inwards can co-exist.
Many researchers have observed the history of FOI legislation. However, their observations are limited to one direction of transparency, that is transparency inwards. Roberts argued that there are three waves of FOI legislation around the world from political and economic perspective. Sebina expanded Roberts’ model and analyzed Roberts’ model from the picture of records management. Kubicer, from the links between FOI and information technology, stated that there are three generation of FOI legislation around the world. Ackerman and Ballesteros, from historic perspective, observed that there are four categories of countries with FOI legislation. Lamble wrote a thesis on Computer-assisted Reports and FOI and observed that there are two models of FOI legislation around the world. One is the open Swedish model and the other is a less transparent United States’ model. Central European and Eurasian Law Initiative carried out a research on the concept of FOI legislation and suggested that there are three models of FOI legislation around the world, including the FOI legislation in Sweden, the U.S. and other countries which adopted their legislation in the past two decades. McDonald argues that there are three general phrases may be discerned for the evolution of FOI laws from the modern perspective. One of his key arguments is the modern adoption of FOI statutes begins with the US in 1966, rather than with Sweden in 1766.

FOI or Transparency and Accountability

Naurin asserts that there is a missing link between transparency and accountability. Accountability cannot be the automatic result of transparency. Generally, the probability of accountability depends on the probability of publicity and the existing accountability institutions, while the probability of publicity relys on the levels of transparency and education. It seems that transparency or FOI can have indirect influence on government accountability or anti-corruption.

The Classification of FOI Legislation

Many researchers observe the rapid development of FOI laws around the world and try to categorize these laws from their own benchmark. Roberts argued that there are three waves of FOI legislation around the world from political and economic perspective. Sebina expanded Roberts’ model and analyzed Roberts’ model from the picture of records management. Kubicer, from the links between FOI and information technology, stated that there are three generation of FOI legislation around the world. Ackerman and Ballesteros, from historic perspective, observed that there are four categories of countries with FOI legislation. Lamble wrote a thesis on Computer-assisted Reports and FOI and observed that there are two models of FOI legislation around the world. One is the open Swedish model and the other is a less transparent United States’ model. Central European and Eurasian Law Initiative carried out a research on the concept of FOI legislation and suggested that there are three models of FOI legislation around the world, including the FOI legislation in Sweden, the U.S. and other countries which adopted their legislation in the past two decades

Open Governemnt and Transparent Policy: China's Experience with SARs

Ling Lan's paper published on International Public Management Review (Volume 6 Issue 1,2005)explores the close link between information exposure and good governance as well as high government institutional performance in light of a special case study of how the Guangdong provincial government and China’s central government responded
to the outburst of the Severe Acute Respiratory Syndrome (SARS) epidemic in November 2002. It analyzes the possible reasons behind the initial misinformation on the crisis. Also, it analyzes the lessons the Chinese government learned from the event and the mutative character of government behavior toward information exposure after this short SARS episode. In this regard it focuses on several pioneering programs leading to more open government and transparent policy, such as in Guangdong and Shanghai, and emphases the significant importance of public participating for sound policymaking and democratic governance in the country. You can go to www.ipmr.net to get the fulltext.

View the relationship between Freedom of Information and accountability carefully

The relationship between Freedom of Information and accountability should be viewed carefully. Not only should we recognize bureaucratic resistances, but also the fact of the low degree of public awareness and the limited use of FOI by citizens. Furthermore, we should not misunderstand the principle of maximum disclosure. Last but not least, although the transparency of international organizations should be enhanced, the negative effects of transparency should also be noted at the same time