Yongxi Chen on Circumventing Transparency, Extra-Legal Exemptions from Freedom of Information and Judicial Review in China (J Int'l Media & Entertainment L)

“Circumventing Transparency: Extra-Legal Exemptions from Freedom of Information and Judicial Review in China”

Yongxi Chen
Journal of International Media & Entertainment Law
2018, Vol. 7, Issue 2, pp. 203-252

Abstract: This paper examines the relation between extra-legal regimes of information control and the right to information created by China’s Regulations on Open Government Information (ROGI) and discusses its implications for legal reforms in a party-state. It finds that the norms that preserve the traditional ways of information control under the socialist system have triumphed over the transparency requirements under the ROGI and inhibited the ROGI’s liberally oriented functions. It argues that the circumvention of transparency requirements is caused by not only the flaws in the ROGI, but also the dualist disposition of power in the party-state and the incomplete legal regulation of the exercise of power.

     Existing literature on China’s transparency reform focuses on the implementation and interpretation of the ROGI alone, largely overlooking the norms that are generated by the party-state authorities in parallel with, or in the place of, the ROGI to exempt information from disclosure. These secrecy norms can be called “extra-legal norms” because they are generally not considered sources of law under the Chinese legal system. Extra-legal norms are nevertheless widely adhered to in practice because of their political importance within the governance structure. It is important to note that freedom of information law is significant primarily because it seeks to establish disclosure as the rule and non-disclosure the exception. The ROGI’s effectiveness hence hinges on the extent to which the primacy of its disclosure requirements is guaranteed over secrecy norms. 

      The paper first identifies three major categories of extra-legal exemptions: (1) documents defining the specific scope of state secrets; (2) directives on the prior approval of information releases; and (3) ROGI implementation measures. It analyzes in depth the nature and validity of each. It then examines, based on a representative sample of cases, judicial review of extra-legal exemptions that fall within categories (1) and (3) but contradict either the ROGI or other laws. After elaborating the gaps in the formal hierarchy of law and the marginal, or even failing, judicial control of invalid norms, the paper further reflects on how its embeddedness in the party-state has impeded an otherwise promising legal reform in the direction of greater government accountability.

Zhu Han & Fu Hualing on Transparency as an Offence: Rights Lawyering for Open Government Information in China (J of Comp Law)

"Transparency as an Offence: Rights Lawyering for Open Government Information in China"

Zhu Han & Fu Hualing
The Journal of Comparative Law
published in Feb 2018
Volume 12, Issue 2, pp. 417-436

Introduction: Rights lawyering has been developing in China over the past two decades or so.  From spontaneous reaction to proactive organization, from litigation to civil society networking, from using law as a shield to using it as a sword and from individual cases to policy change, Chinese rights lawyers through social-legal activism have been a formidable social force in holding the state accountable for its rhetoric.  This article examines three ways rights lawyers in China have used transparency as a tool to pursue legal activism and social campaigns: open government information (OGI) applications, on-line mobilization, and off-line action.  For rights lawyers, transparency is both an end and a means to address a wide range of social-political issues.   The chapter finds that the formal OGI institutions have created new legal opportunities and resources for rights lawyering, which has proved to be resilient in promoting government accountability and restraining the arbitrary exercise of public powers. However, the political vulnerability of legal institutions and their lack of political will and ability to accommodate the demands of civil society have given rise to extra-institutional and extra-legal mobilization in a variety of organized street actions by rights lawyers.  The extra-institutional lawyering has provoked retaliation from the state, however, leading to further restrictions on lawyers' right to know and crackdowns on rights lawyering.
     Operating in an authoritarian system with a compliant judiciary, limited rule of law, and little meaningful political participation, Chinese lawyers have few options with which to seek remedies when their rights and interests and those of their clients are adversely affected. Over the past two decades, Chinese lawyers, mostly rights lawyers, have through activist lawyering exploited all available opportunities within the current legal framework by using the existing legal procedures to promote accountability and restrain the arbitrary exercise of powers.
      The promulgation of the Regulations on Open Government Information (the 'ROGI') in 2008 provided a new legal opportunity which lawyers together with other civic groups have readily grasped.  However, while formal OGI institutions have largely failed to satisfy rights lawyears' demands, the institutionalization of rights lawyers and the coming into maturity of a community of rights lawyering, coupled with the development of information technology and enhanced international support, have enabled rights lawyers to take a proactive and occasionally aggressive approach to exposing abuses and in holding public power accountable to the law.  Since the promotion of the ROGI, there has been a shield-to-sword shift in the way in which law is used as an offensive weapon in the hands of right lawyers and activist citizens, with some assertive rights lawyers having moved from online mobilization to off-line action including gathering in courtrooms and protesting on the streets.  Online mobilization and direct actions have primarily served the purpose of publicizing abuses, real and perceived, and making the legal process visible for all to see and to judge.  It is part of a larger strategy of naming and shaming government offenders.   Facing extensive abuse of power in both the political, administrative and the judiciary sectors, transparency has become a weapon for the weak, whose grievances are rarely addressed through institutional channels. 
     This article examines how Chinese lawyers, primarily rights lawyers, have used both institutional and extra-institutional means to demand transparency and government accountability.   Here, the authors adopt a broad definitation of rights lawyers, as 'lawyers or quasi-lawyers who consistently use legal rule and institutions, as well as other platforms, to promote a specific social campaign or the rule-of-law development.'  This definition includes human rights lawyers (renquan lüshi) who devote their work to politically sensitive causes, public-interest lawyers (gongyi lüshi), and the newly-emerged so-called 'die-hard' lawyers (sike lüshi ), mostly criminal defense lawyers (xingshi bianhu lüshi).   The discussion on lawyering for OGI also encompasses ordinary lawyers who have submitted OGI disclosure requests (hereinafter OGI requests).
     The empirical material on which this article is based, in large part, is drawn from a variety of data and materials, including 105 OGI requests made by lawyers between 2008 and 2015, official records and judicial decisions, comprehensive reviews of media reports and documentaries, monitoring of rights lawyers' social media activities, and open-ended interviews with rights lawyers and activists.  The essay examines three ways of transparency-based lawyering: OGI application, online mobilization, and offline activism, and explores also state responses to each method of activism.  It  concludes that ROGI has resulted in new legal opportunities and resources for rights lawyering, which create certain systematic improvements within the formal legal framework possible.   However, facing extensive abuses of power and a fragile legal system, rights lawyers as well as other activist groups have turned to extra-institutional, extra-legal means and used transparency as a sword for a wide range of social agenda.  Extra-institutional efforts have been successful primarily in attracting publicity, raising public consciousness, and enhancing the mobilization capacities of rights lawyers and their allies.  Like the OGI application, online mobilization has rarely achieved dramatic social-legal changes.  At the same time, street action for transparency has incurred greater legal and political risks. 
     

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.

Clement Chen on the Role of Chinese Courts in Upholding Freedom of Information (Tsinghua China LR)

"Transparency versus Stability: The New Role of Chinese Courts in Upholding Freedom of Information"

Chen, Yongxi Clement

Tsinghua China Law Review

2016, Vol. 9, No. 1, pp 79-138

Abstract: This paper explores the inconspicuous but increasingly important role of Chinese courts in handling the often conflicting goals of promoting government transparency and maintaining social stability within the Party-state context. The Regulation on Open Government Information created an unprecedented right of access to information with the potential for improving administrative accountability, but established a peculiar exemption of social stability. “Stability maintenance” has long been an overwhelming political task for Chinese state organs, and has profoundly affected legal practices, posing a challenge to judicial control of abuse of the aforementioned discretionary exemption. Added to the challenge is the obscurity in the standards for judicial review of discretion. 

     The paper reviews how the courts respond to this challenge by focusing on representative cases concerning government claims that disclosure would endanger social stability. It finds that in referential cases adopted in official publications, the courts have developed creative approaches to scrutiny. However, other sources indicate that meaningful review is largely absent from cases involving appropriations of private properties and those concerning large-scale maladministration. It argues that the judicial inaction can be attributed to two concerns underlying the common practice of the stability maintenance system, i.e. containing collective mobilization and inhibiting expression of public mistrust in governance. The courts demonstrate their ability in judicializing the political concept of social stability in the context of right to information, and thus assume more than a deferential role in the politics of stability maintenance. Nevetheless, they remain captive to the imperative of securing core regime interests. The liberalization implications of transparency reform are hence minimized through the judicial process.  Click here to read the full article.

Clement Chen on Privacy and Freedom of Information in China (European Data Protection Law Review)

"Privacy and Freedom of Information in China: Review through the Lens of Government Accountability"
Clement Chen Yongxi
European Data Protection Law Review
Vol. 1 (2015), Issue 4, pp. 265-276

Abstract: This article critically reviews how the Chinese legislation and courts handle the conflict between the right to privacy and freedom of information. It summarises inadequacies in the protection of privacy provided under an uncoordinated body of legislation, and highlights the gaps concerning the privacy exemption to disclosure of government information left to be filled by the courts. By analysing a representative sample of cases, it evaluates the judicial approaches to balancing privacy and public interest in transparency on several subject matters. The article finds that the courts have recognised a wider scope of privacy in the FOI context than what is usually recognised under the civil law doctrine, and have often undervalued or neglected the public interest in promoting government accountability through transparency. It argues that these approaches risk condoning the misuse of privacy to cover maladministration, and can hardly redress the weak legislative protection of privacy from government intrusion in the non-FOI context.

Clement Chen on Freedom of Information in China

"Freedom of Information in China?  The Paradox of Access to Information in a Closed Regime"
Clement Chen

in John Mair & Tom Felle (eds), FOI Ten Years On: Freedom Fighting or Lazy Journalism (Abramis Academic Publishing 2015)

Abstract: As a result of the Regulations on Open Government Information (ROGI), Chinese journalists as well as other citizens enjoy, for the first time in history, a statutory right to access government information. While the ROGI has led to increased disclosure of non-sensitive information, it has yet to secure disclosure of information with democratic implications, i.e. enhancing government accountability and promoting civic engagement, as shown by data concerning request handling and judicial review. Under the law, journalists do not have a more privileged right of access to information than any other citizen; in practice, their rights are actually far less, as frequently a ‘needs test’ is applied by government agencies (news gathering has not been recognised as a valid need) in addition to other exemptions, in an effort to stymie information release, especially where such requests relate to accountability of public money; potential maladministration; or corruption. Journalists and other non-personal requests have an extremely limited right of appeal, as courts have been slow to overturn non-disclosure decisions, or even accept cases. Because of this combination of a weak legislative framework and a largely impotent judicial protection, watchdogs such as activists, NGOs and journalists find it increasingly difficult to use the ROGI to monitor and check on the workings of government, and its officials.