Tuesday, May 22, 2018

Clement Chen on Taming the Right to Information and the Public Interest Test under China's FOI-like Law (Journal of Comparative Law)

"Taming the Right to Information: Motive Screening and the Public Interest Test under China's FOI-like Law"
Yongxi Chen
The Journal of Comparative Law
published in Feb 2018
Volume 12, Issue 2, pp. 203-215
Introduction: Promoting government accountability to the public is a core value common to freedom of information (FOI) laws around the world.  FOI law is primarily understood as an empowering tool for the civil society, for it enables citizens to take over the initiative in making government information available, in particular information necessary for the public to judge government performance, participate in public policy-making, and call administrative agencies to account for violations of law, corruption or maladministration.  That value is often echoed by Chinese officials who push through transparency reforms, and emphasized by jurists who hail the introduction of the Regulations on Open Government Information (ROGI) 2007 as a landmark improvement of the government-citizen relation or a major advance in 'democratic politics' in China.  Persistent denials of access to information concerning abuse of power and policy-making affecting crucial public interests, however, casts serious doubt on the adherence to this value in the ROGI's implementation.
     It is usually through two principles that a FOI law entrench the public accountability value.  The first is the 'requester-blind' principle which grants all members of the public a universal right to information irrespective of their identities and motives in accessing the information.  It ensures that all requesters are treated equally without any bias against those whose motives may not be favoured by officials.  It is a corollary of the essence of FOI law, i.e. government information should be disclosed by default, and should not be withheld unless it falls within the limited and statutorily prescribed regime of exceptions.  The second principle is that of subjecting exceptions to the public interest test.  This intends to ensure reducing the areas of secrecy to minimum and releasing information whose disclosure serves the public interest, including in particular accountability enhancement, that overrides the secrecy interests protected under the exemptions.  Although the ROGI is compatible with these two fundamental principles, its wording creates ambiguities which have been employed by government agencies to the detriment of this legislation's function in making the government accountable to the public.  The General Office of the State Council (Guowuyuan Bangongting, 'SC General Office' here after) issued interpretations of the ROGI to introduce a test of the requesters' needs, which actually screens the motives for access.  Agencies also tend to ignore the public interest associated with disclosure and shirk the balancing test.
     Being the sole external review body that enforces the right to information, the Chinese courts have a pivotal role to play in scrutinizing government decisions concerning these two principles.  Effective judicial scrutiny is important for the full functioning of the ROGI and and successful outcomes of the transparency reform.  The public interest test pertaining to information disclosure best illustrates the courts' view on what the values of transparency are in a society and a polity, and how important such values are when compared to the secrecy interests in a given circumstance.
     This article investigates the extent to which the public accountability value has been fostered by the ROGI by illustrating and assessing the judicial approaches to the motives of access and to the public interest test.  The section which follows criticises the problematic judicial responses to the SC General Office's interpretations, and identifies the discriminative treatment of three major sets of motive in access to information. The subsequent section summarizes Chinese judges' unique understandings of the public interest test in the FOI context, and examines the major categories of public interest that the courts have identified under two exemptions respectively.  The final section generalizes from its finding of the convergent results of both tests that there is a prevailing judicial policy to uphold 'defensive transparency' which is attached to the requester's own rights of the person and property ('personal or property right' hereafter), but to refrain from supporting 'civic transparency' - that is, the transparency to be unconditionally enjoyed by every citizen in respect of public scrutiny of government performance.  The Chinese courts have largely failed to yield their review power to uphold the pro-accountability value embodied in the ROGI, but have cooperated with administrative agencies in taming an otherwise politically significant right to information into a mediocre instrument for private interest assertion.
     In basing the investigation on representative cases, this article continues to use the methodology developed by the author in previous studies of the right to information in China.  Cases are collected from three sources that complement each other.  The first source is case collections published by the Supreme People's Court ('Supreme Court' hereafter) or compiled under its supervision.  The cases reported in these collections, called 'referential cases', are widely considered by the Chinese legal community to reflect to varying extends the intentions of the Supreme Court and its departments in guiding local courts on the adjudication in a particular field of law.  The second source is mainstream legal databases, including China Judgment Online, the official portal designated by the Supreme Court to publish the judgments rendered by courts at all levels, and ChinaLawInfo, the country's most comprehensive commercial databank.  In consideration of the overrepresentation of certain regions in the databases and the post-2013 spiralling of number of judgments on open government information (OGI) litigation, the scope of search is restricted to the judgments of the second instance in eight provincial units.  The selected units are dispersed across the country with different levels of industrialization.  Appeal judgements often involve more detailed examination of important legal issues than judgments of the first instance, and are more suggestive of mainstream judicial approaches.  The third source is news reports in fifty-nine Chinese media outlets which enjoy either great popularity or an appreciation of their professional quality, plus the 'Transparent China Online', a portal dedicated to news on OGI.  It should be pointed out that OGI cases reported by the media ('media-reported cases' hereafter) are more representative than reports of adjudicative practice in two senses.  First, they encompass cases whose judgements are withheld from online publication by the courts for various discretionary  reasons, including for instance the political sensitivity or inconvenience of the case.  Second, they are more evenly distributed geographically than those retrieved from the databases and Supreme Court-managed collections.  Searches within the three sources have yielded 289 cases which were adjudicated before the end of 2015 and which concern the issues discussed in this study.

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