We are now approaching the seven-year anniversary of China’s National Ordinance on Open Government Information (政府信息公开条例). This important national legislation obligates government bodies to archive documents generated in the course of official work, make them available to the public, and submit regular reports on their progress with respect to information disclosure.
Implemented in May 2008, the ordinance on open government information (OGI) was a watershed event in the sense that it changed the general presumption that all government information in China is “secret.” It outlined a whole range of information types to be “actively released” (主动公开) by government bodies, and put mechanisms in place for formal filing of open information requests by citizens. (Here is some valuable early background on the legislation from the Yale Law School).
So how is the ordinance faring well on the way toward a decade of implementation? The results, not surprisingly, are deeply mixed.
In fact, this review written two years into implementation by Jamie Horsley, a leading expert on OGI in China, still holds true. Essentially, citizens seem to be keenly interested in using this new channel to uphold their rights and interests. And in far rarer cases, journalists have used the legislation to effect — as when a reporter obtained a copy of an environmental impact assessment for a chemical plant in the city of Zhangzhou. But “government agencies,” as Horsley wrote, “have generally been reluctant to provide information on government operations and policies.”
That reluctance is still the main thread of the OGI story in China.
In a report late last week, Guangzhou Daily, the official mouthpiece of the Guangzhou leadership, offered a rare glimpse at just how infrequently information requests are handled in favor of the applicant. Citing numbers from Guangdong’s Supreme People’s Court, the paper said a total of 273 requests under China’s open information ordinance had been handled in 2013, up 73 percent over 2012. In 2014, the court had logged 379 requests, up 39 percent over 2013.
Those numbers reflected rising interest in open government information, Guangzhou Daily said, with one official noting: “Over the past two years, the dramatic increase in the number of administrative proceedings for open information has shown that more and more city residents are willing to go through a process of judicial rights defense (司法维权) in order to promote ‘sunshine government.'”
But the proportion of “failed” requests — meaning authorities did not, for whatever reason, release the information requested — represented a “huge contrast” with the sharp rise in case numbers. In 2013, just 10 percent of requests for open information were granted. Last year, that number rose very modestly to 12 percent.
So what is going wrong, exactly? Recent coverage in China’s press of the numbers from Guangdong’s Supreme People’s Court side-stepped the Central question of the “reluctance” Horsley wrote about. Instead, it chalked up the failures to improper applications on the part of citizens. These were of two basic kinds:
1. Only those government agencies responsible for “generating” the documents in question can be made responsible for releasing them when they fall within the scope of the ordinance. The suggestion here is that requests might have been made to the wrong departments, which would then have denied requests on those grounds.
2. Is what is being requested actually “government information”? An expert quoted in Guangzhou Daily said: “If members of the public want to apply effectively for the release of government information, they must first make clear whether the information they are requesting is indeed government information.” This could involve a range of proper denials and official rationalisations. For example, it seems requests for information pertaining to organs of the Chinese Communist Party, and not strictly speaking the government, generally yield refusals. Also, requests should reference concretely specified documents, and they should not demand explanations about policies, for example, rather than specific files.
Here is how sources from Guangdong’s Supreme People’s Court explained to the Yangcheng Evening Post a request submitted by Ou Shaokun, a well-known grassroots campaigner in Guangzhou referred to in the article only as “a certain Ou”:
In April 2014, a certain Ou (区某) applied to the Guangzhou City Government Central Office to the facts, circumstances and reasons why the Guangzhou City Government’s Notice from the Guangzhou Municipal Committee of the Chinese Communist Party and the Guangzhou City People’s Government Central Office On Interim Measures for the Management of Public Vehicle Use By Party and Government Organs in Guangzhou (hereafter called the @Notice”), and Interim Measures for the Management of Public Vehicle Use By Party and Government Organs in Guangzhou (hereafter called the “Measures”) had been designated as secret documents. . . The same month [Mr. Ou] received an Open Government Information Notice with the following response: The “Notice” and the “Measures” were a single document, and the Central Office of the Guangzhou Municipal Committee of the Chinese Communist Party had been responsible for designating it as secret.
Mr. Ou then brought a case in court demanding the court establish the illegality of the [open government information] notice from the Guangzhou City Government, and that the information [in question] be released.
The Guangzhou Intermediate Court held that as the document in question was handled and designated secret by the Guangzhou Municipal Committee of the CCP, the Guangzhou City Government had no duty to make it public (无公开的职责), and it rejected Mr. Ou’s claims. When Mr. Ou appealed the case, the Provincial Supreme Court ruled that the content Mr. Ou was requesting be made public amounted to asking the Guangzhou city government to provide an explanation on the question of the open government request itself . . . and was not a request for information created and held by the government, and so it did not accord with the requirement of “government information.” The appeal was rejected on the grounds that this did not involve government information.
Having met Ou Shaokun, the inimitable “Uncle Ou,” I know just what he is getting at. The misuse of Party and government-issued vehicles, a brazen waste of public funds and a wanton abuse of power, has obsessed Ou for years. One of his most relentlessly effective tactics has been to photograph instances of abuse — like wives of officials taking their luxury “official” sedans, with driver, on shopping expeditions — and then post the photos to social media.
Ou Shaokun wants hold his government to account for how it spends money drawn from the proverbial pockets of China’s citizens. So Mr. Ou wants to know why local regulations on the issue of “public vehicle” use are not public knowledge. His question to the government is crystal clear: what is the policy, and why can’t we see it and discuss it? But his OGI request was denied, we are told, because he did not make it properly. It was a request for an “explanation” rather than for specific “information.”
Theoretically, he could make a request, I suppose, for the actual document explaining the decision to make the “Measures” secret. But there are two problems. First, the niggling issue that Ou first needs to know that such a document actually exists, and what specifically it is called. Second, the far bigger problem — the decision to designate the “Decision” as secret was made not by the government but by the Party.
Let’s go back to the court ruling: “[As] the document in question was handled and designated secret by the Guangzhou Municipal Committee of the CCP, the Guangzhou City Government had no duty to make it public.”
There are two hands, you see. The right and the left. And while the left hand is obligated to some extent under the law to show its cards, the right hand is above such business.
And there, where we always find it, is the rub: the law is defined and restrained by a Party that is, for all practical purposes, above the law. This is the giant elephant in the room in all discussions of rule of law or “ruling the nation in accord with the law” (the subject of last fall’s Fourth Plenum). It is also the core question behind the ultimate effectiveness of the National Ordinance on Open Government Information.
But for now, we’ll just blame the citizens.
It is heartening that their sense of engagement with their own rights and interests is growing. It is touching that they are trying their best to wrangle information from the government that spends their hard-earned tax dollars, or takes their farmland for a pittance in the “public interest” (translation: “luxury housing development”). Still, we wish they would just get their act together and file open government information requests properly.
Really, come on, folks. Is it so difficult? First, make sure you’re asking for specific “government information.” Second, make sure you’re requesting information from the proper government agency — the one that created it and put it on file. As one official cutely told the Yangcheng Evening News: “If you go to a pharmacy to buy flowers, you definitely won’t be able to buy what you want.”
Rest assured, if you fill out your requests improperly, the government will not be held responsible for your failure.
For those Chinese citizens who can afford it, it might be wise to seek legal assistance in preparing your open government information request. The paperwork should be a cinch. Then you can just sit back and watch as your lawyer deals with the political ordeal that follows.
