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  • Dec 19, 2014
  • Updated: 5:28pm

Not just for official eyes any more

PUBLISHED : Thursday, 08 September, 2011, 12:00am
UPDATED : Thursday, 08 September, 2011, 12:00am
 

The news

In August, the State Council of the People's Republic of China announced a new interpretation of laws, specifying situations in which a government department may be sued under the Regulations on Open Government Information (OGI) on the mainland. These situations include scenarios such as when a government department fails to respond to a request for information, fails to respond on time, or releases information that harms an individual's privacy.

Background on OGI

OGI was adopted by the State Council on January 1, 2007, and became effective on May 1, 2008. The law requires government departments to publicise information they have created or obtained in the course of carrying out their duties. They must make that information public upon request. OGI allows local governments to formulate their own rules and policies on information disclosure.

According to Professor Fu Hualing, former head of the Department of Law at the University of Hong Kong, OGI is the result of an ongoing initiative, which began in the 1990s, to ensure greater transparency in government.

Problems with OGI

'Since OGI was implemented, it has been criticised for being too vague,' says Fu, who has published an article called 'Can OGI take off in China?' on the website of the non-government organisation, Human Rights in China.

Fu argues that the biggest hurdle is the inconsistency between primary legislation by the State Council and the interpretations of rules by local governments and courts. There is no meaningful mechanism within the mainland system to ensure legislative consistency.

Another reason that has kept mainland citizens from fully benefitting from OGI is related to exemptions. OGI states that the government does not have to disclose information that constitutes state secrets, trade secrets, privacy and third-party interests.

'The lack of clear, concise meanings in the law can allow government departments to deny disclosure of information [on such grounds],' Fu says.

He says proper implementation of the law will be an uphill battle. 'China has a long history of secrecy [based on] the concept that the government is the sole owner of information,' he says. 'It will take time to change the attitude of people, especially the older generation [of government officials]. There is also a need to train government officials to handle and manage information in a more efficient way.'

But Fu says he has grounds for optimism. 'I believe younger generations who are children of the information age will accept and respect the concept of an open government more,' he says.

Role of the public

Fu says OGI is crucial for social and political progress on the mainland. '[It] should enhance transparency and improve governance by creating a legal basis for citizens to exercise their right to know,' he says.

Yet, he adds, the public needs to be educated. 'People need to see that it is not just their privilege to have access to the government's information, but their duty to monitor the government. Journalists should also make use of the regulations more. The media is another instrument that can hold the government accountable for its actions,' Fu says.

Mainland citizens' view on OGI

Mainland citizens welcomed the new regulations when they came out. People's Daily Online published a survey conducted by some local newspapers, which said 98 per cent of the 3,837 respondents agreed that they had the right to access government information. Most people especially wanted to monitor the salaries and assets of government officials (78 per cent of the respondents) and government financial budgets and reports (71 per cent). More than half - 55 per cent - also criticised the government for not promoting the regulations.

The scenario of Hong Kong

Hong Kong first introduced its Code on Access to Information act in March 1995. It was extended to include the entire government in December 1996.

The code sets out what information must be made available to the public without the force of law. The Home Affairs Bureau was responsible for the code's administration until June 30, 2007. It has since been overseen by the Constitutional and Mainland Affairs Bureau.

Last January, the Office of the Ombudsman did an investigation into the effectiveness of the code. In its report, the agency noted that some government departments had refused requests for information without giving any reason, or else cited reasons that were not specified in the code. Other departments, meanwhile, were found to have misused the specified reasons while refusing access to information.

Among notable examples, the government refused to release the results of some tests for the amount of melamine found in tainted dairy products. Officials also refused to publicise salaries for new political appointees.

The report cited the Food and Environmental Hygiene Department's initial refusal of a request to reveal the level of melamine government inspectors found in food samples. It released data only on products that were within acceptable levels.

Another example cited was the South China Morning Post's request for disclosure of the salaries of new political appointees in 2008. The request was originally rejected by the government on the grounds that such details were private information.

The Ombudsman said the reasons for the refusal should have been better explained. Three days later, the appointees in question disclosed information about their salaries on their own accord.

In releasing the report, Ombudsman Alan Lai Nin told the SCMP that 'the code aims to make access of information more transparent. But some departments are using various methods not to publicise information, which is contradictory to the principle of the guidelines.'

Many legislators have urged the government to enact a law for a Freedom of Information act, following the examples of such countries as South Korea, Japan and India.

'Other countries in the region all have such laws now. It's about time we pushed forward, too,' legislator Emily Lau Wai-hing told the SCMP.

'I urge anyone who has been refused access to information to report, so we [the legislature] can follow up on this issue.'

A spokesman for the Constitutional and Mainland Affairs Bureau said it accepted the finding of the report.

But it added that the government had 'no plan to enact legislation on freedom of information'.

Freedom of Information (FOI) legislation in other countries

FOI is a form of legislation that allows the public to request and have access to government-held information. Such legislation is a vital part of a democracy. The following countries have already enacted FOI laws.

Sweden

Sweden's Freedom of the Press Act of 1766 is the oldest such law in the world. It granted individuals the right of free access to all official documents. It also guaranteed people the right to express opinions without censorship.

France

According to the Declaration of the Rights of Man and of the Citizen (1793), it is a constitutional right of citizens to hold public servants accountable. Citizens should also be able to obtain a copy of any administrative document.

United States

The Freedom of Information Act was enacted in 1966 and came into effect in July 1967. It states that any person has a right to obtain access to federal agency records. It allows for exceptions in the form of records that are deemed top secret.

South Korea

The Constitutional Court ruled in 1989 that access to government-held information was a constitutional right. The Act on Disclosure of Information by Public Agencies was enacted in 1996 and went into effect in January 1998.

Japan

The Law Concerning Access to Information Held by Administrative Organs came into effect in 2001.

Britain

The Freedom of Information Act (2000) was adopted by then-prime minister Tony Blair. The act allows access to official documents, such as the minutes of meetings, e-mails and reports by public authorities in England, Northern England and Wales, as well as some authorities in Scotland. It aims to make public bodies more transparent and accountable.

South Africa

The Promotion of Access to Information Act 2 was passed in February 2000. It was designed to make access to official information a constitutional right.

India

The Indian Right to Information Act was passed by the Indian Parliament in June 2005. It came into effect in October 2005. Under this law, all government bodies have to appoint a Public Information Officer. He or she must ensure that information requested is disclosed to the petitioner within 30 days, or within 48 hours, when that information concerns the life or liberty of a person.

Germany

In September 2005, a freedom of information law was passed by the federal government. It grants each person an unconditional right to access to official federal information.

Nine of the country's 16 states have approved individual informationsfreiheitsgesetze (Freedom of Information laws).

China

The Regulations of the People's Republic of China on Open Government Information came into effect in May 2008.

Nigeria

The latest FOI legislation was signed into law by the country's current president, Goodluck Jonathan, in May 2011.

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